GPO-CONAN-2017-10-15.pdf

2134 amendment 14rights guaranteed though the law

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2134 AMENDMENT 14—RIGHTS GUARANTEED
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“[t]hough the law itself be fair on its face and impartial in appear- ance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circum- stances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.” 1662 Education Development and Application of “Separate But Equal”. Cases decided soon after ratification of the Fourteenth Amendment may be read as precluding any state-imposed distinction based on race, 1663 but the Court in Plessy v. Ferguson 1664 adopted a prin- ciple first propounded in litigation attacking racial segregation in the schools of Boston, Massachusetts. 1665 Plessy concerned not schools but a state law requiring “equal but separate” facilities for rail trans- portation and requiring the separation of “white and colored” pas- sengers. “The object of the [Fourteenth] [A]mendment was undoubt- edly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abol- ish distinctions based upon color, or to enforce social, as distin- guished from political, equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even re- quiring their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in exercise of their police power.” 1666 The Court observed that a common instance of this type of law was the separation by race of children in school, which had been upheld, it was noted, “even by courts of states where the political rights of the colored race have been longest and most earnestly enforced.” 1667 1662 Yick Wo v. Hopkins, 118 U.S. 356, 373–74 (1886) (discrimination against Chinese). 1663 Slaughter-House Cases , 83 U.S. (16 Wall.) 36, 67–72 (1873); Strauder v. West Virginia, 100 U.S. 303, 307–08 (1880); Virginia v. Rives, 100 U.S. 313, 318 (1880); Ex parte Virginia, 100 U.S. 339, 344–45 (1880). 1664 163 U.S. 537 (1896). 1665 Roberts v. City of Boston, 59 Mass. 198, 206 (1849). 1666 Plessy v. Ferguson, 163 U.S. 537, 543–44 (1896). “We consider the underly- ing fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.” Id. at 552, 559. 1667 163 U.S. at 544–45. The act of Congress in providing for separate schools in the District of Columbia was specifically noted. Justice Harlan’s well-known dis- sent contended that the purpose and effect of the law in question was discrimina- tory and stamped African-Americans with a badge of inferiority. “[I]n view of the 2135 AMENDMENT 14—RIGHTS GUARANTEED
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Subsequent cases following Plessy
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