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How the high court empowered Jim Crow

Writing in his brooding "Black Reconstruction" in 1935, historian W.E. B. Du Bois meditated on the opportunities former slaves lost during Reconstruction and in the years following 1877. "The slave went free; stood a brief moment in the sun; then moved back again toward slavery," Du Bois grumbled.

How, in the span of only three decades, could America descend from the era of emancipation to the age of Jim Crow?

In his fast-paced and lucid but doggedly narrow "Inherently Unequal," Lawrence Goldstone pins the blame on the U.S. Supreme Court. Goldstone, a legal writer whose previous books include "Dark Bargain: Slavery, Profits, and the Struggle for the Constitution," holds Supreme Court justices largely responsible for the rise and triumph of Jim Crow. They ignored or excused late 19th-century white racism while defending and justifying the rise of big business.

To be sure, Goldstone admits, "No justice ever beat, tortured, or falsely imprisoned a black man, nor personally turned one away from the voting booth." Nevertheless, he accuses the justices of succumbing to the exigencies of popular politics and exhibiting their own prejudices.

Goldstone builds his case against the federal judiciary chronologically, narrating American constitutional history from 1865 to 1903. The 13th Amendment (1865) ended slavery. The 1866 Civil Rights Act anticipated the 14th Amendment (1868) that conferred citizenship and equal protection before the law to all Americans. The 15th Amendment (1870) enfranchised black American men. The 1875 Civil Rights Act guaranteed equal accommodation in "inns, public conveyances ... and other places of public amusement."

The Supreme Court's reactionary turn, however, surfaced even before passage of the 1875 Civil Rights Act. In the Slaughterhouse Cases (1873) the court's majority restricted the federal government's use of the 14th Amendment's due process and equal protection clauses. Three years later, in U.S. v. Cruikshank and U.S. v. Reese, the court omitted protection of blacks in its interpretation of the 14th and 15th Amendments, respectively.

The 1883 Civil Rights Cases, essentially nullifying the 1875 Civil Rights Act, rocked the African-American community. The Rev. Henry McNeal Turner branded it "the black man's doom." Finally, in Plessy v. Ferguson (1896) the court sanctioned "equal but separate" accommodations in railroads, a decision that spread state-sanctioned racial discrimination like a cancer through the American body politic. Ironically, while systematically limiting federal power in civil rights cases, the justices expanded it to protect the interests of big business.

Goldstone is correct in underscoring the Supreme Court's retreat from Reconstruction. But his indictment of justices is more conspiracy theory than historical analysis. At a time when Republicans abandoned the freed people, when Social Darwinism justified cutthroat industrial capitalism and white supremacy, when "the new entrepreneurial class" reigned supreme, when the U.S. fought colonial wars to gain empire, the court's conservative bent hardly surprises. Goldstone's allegation "that the Court did not render its decisions to conform to the law but rather contorted the law to conform to its decisions" ignores changing understandings of jurisdiction, nationhood and race as the 20th century dawned.

None of this was lost on Du Bois, however. In 1903 he wrote with much prescience that "the problem of the twentieth century is the problem of the color-line."

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