Inherently Unequal

The Betrayal of Equal Rights by the Supreme Court, 1865-1903

Lawrence Goldstone

Walker & Co.: 242 pp., $26


In the years immediately following the Civil War, America appeared to possess the will and the means to end racial segregation and give the same rights enjoyed by whites to its 4 million recently freed black slaves. These noble goals, of course, were not achieved for another century. During the intervening decades, the South saw the rise of Jim Crow and Judge Lynch. In “Inherently Unequal,” constitutional scholar Lawrence Goldstone convincingly lays the blame for this tragedy at the door of the institution that could have made the difference but did not: the United States Supreme Court.

Until the early 1870s, advocates of Radical Reconstruction dominated politics in Washington. At the same time, voters approved the 13th, 14th and 15th amendments to the Constitution, granting the federal judiciary enormous power to effect change. But as President Abraham Lincoln’s enlightened Supreme Court appointees left the bench, their replacements began to institute, in Goldstone’s words, “the same two-tiered system of justice that had existed in the slave era.” President Ulysses S. Grant in particular chose poorly, picking justices who came from corporate practices and had little interest in racial equality. In 1875, one of Grant’s selections, Chief Justice Morrison R. Waite, foreshadowed what was ahead. He set aside the conviction in a lower federal court of a white man involved in an 1873 massacre in Louisiana of 100 black militiamen who, after laying down their weapons, were slaughtered by 250 armed whites. Many of those who participated were members of the Ku Klux Klan.

Such decisions did not occur in a vacuum. For most Americans, Goldstone asserts, the Civil War was fought not to liberate the slaves but to save the union. Just as important, the Republican Party was drifting away from its Lincolnesque roots and into the arms of big business, which was agnostic about the plight of defenseless blacks down South.

Social Darwinism also exerted a baleful influence. As articulated by British philosopher Herbert Spencer, this view maintained that wealth provided not just the means by which the fittest survived but evidence of their very fitness. A corollary held that impoverishment was proof of unfitness. A majority of the prosperous men from whose ranks Supreme Court justices were drawn accepted the theory, and few groups were as impoverished as American blacks.


Little wonder that by the 1880s, the Supreme Court was consistently ruling against black plaintiffs. In a series of cases arising from the beatings of blacks by whites in Southern states, the high tribunal, with Justice Joseph P. Bradley (another Grant appointee) writing the key opinions, found that the victims could not seek redress in Washington. As Bradley saw it, the 14th amendment did not give the court the power to regulate private behavior even if it was discriminatory.

Plessy versus Ferguson soon followed. Homer Plessy was a New Orleans black man who, after buying a first-class train ticket, was denied his seat. Goldstone does a splendid job teasing out the nuances of this infamous affair, showing that some railroad companies actually backed Plessy. The men who owned the trains did not want to incur the expense of providing segregated conveyances. Not that it mattered. In 1896, the Supreme Court upheld Louisiana’s “Separate Car Law,” finding that it did not violate the 13th amendment. The body ruled that “a statute which implies merely a legal distinction between the white and colored races … had no tendency to … reestablish a state of involuntary servitude.”

In all of this there was only one hero, Justice John Marshall Harlan, the lone dissenter in Plessy. Proclaimed Harlan: “Our Constitution is color-blind … The law regards man as man, and takes no account of his surroundings or his color.”

Goldstone’s insistence upon laying out the particulars of almost every civil rights case that reached the Supreme Court in the late 19th century makes “Inherently Unequal” a compellingly thorough work, but it also causes its chief weakness. While judicial back and forth can provide for meaty legal cogitation, it occasionally bogs down the narrative.


This, however, is a quibble. Although other writers — principally Eric Foner and C. Vann Woodward — have done much to illuminate the horrors of the post-Reconstruction era, “Inherently Unequal” sheds new light on the Supreme Court’s central role. By the end of the book, readers will see why Goldstone opens it with a chilling account of the 1899 lynching of a black man in Newnan, Ga. Sam Hose was burned at the stake without a trial for killing a white farmer who’d drawn a gun on him and announced his decision to shoot. After Hose was dead, the mob cut out his heart and presented a chunk to Georgia’s governor.

An act of such barbarity defies easy explanation, but Goldstone leaves little doubt that it was tacitly sanctioned by the indifferent rulings of the nation’s highest court. He gives the legendary black muckraker Ida B. Wells what amounts to the last word: “During six weeks of the months of March and April just passed [1899], twelve colored men were lynched in Georgia.... The real purpose of these savage demonstrations is to teach the Negro that he has no rights that the law will enforce.”

“Inherently Unequal” is a fiercely well argued and important book.

Oney is the author of “And the Dead Shall Rise.”