No nation before expressly based its formation on an ideal of equality that was intended to separate its inhabitants from the dictates of the Old World’s hereditary sovereignty. It was nothing less than a revolutionary concept, and it has since afforded opportunities in the U.S. previously unavailable to those without ancestral connections. However, events such as those that have today prompted so many to take to the streets in protest sadly illuminate our failure to fully confront the reality of how short we have fallen from the realization of a nation in which equality and evenhanded justice has been extended to everyone.
We have a history that demonstrates that we have been capable of effectuating enormous changes in our laws that form a bedrock on which to build a more equitable future, while, at the same time, failing miserably to implement those legal advancements to their full intent.
More than 150 years ago, the United States undertook a radical legal transformation in the name of racial equality. Following the Civil War, the country adopted three constitutional amendments, and they together dramatically announced fundamental changes in American race relations. The 13th Amendment affirmatively outlawed slavery. The 15th Amendment directed that the right to vote may not be denied on account of race, color or previous position of servitude. In between, the 14th Amendment provided a profound expression of the ideal of equality. It broadly established that citizenship extended to all “persons born or naturalized in the United States” and that no state shall abridge the privileges and immunities of those citizens; “nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.” Shortly thereafter, Congress enacted the Civil Rights Act of 1875, which provided that all persons are “entitled to the full and equal enjoyment of” public accommodations, regardless of race, color or “any previous condition of servitude.” It appeared that, as a nation, we had surely been touched by President Lincoln’s vision of “the better angels of our nature.”
And then the judiciary intervened. In The Civil Rights Cases of 1883, the Supreme Court held that, while the 14th Amendment granted Congress power to regulate the states, it did not grant the power to prohibit private acts of racial discrimination. Then in Plessy v. Ferguson in 1896, the court established the doctrine of “separate but equal,” which essentially gave legitimacy to segregation laws. Together, these decisions help usher in a long and disgraceful era of legal segregation, separate and inferior facilities and schools, voting restrictions, and racially restrictive land covenants. It amounted to legally sanctioned racism that ruled the land for decades.
True legal change did not come until 1948, when, in Shelley v. Kraemer, the Supreme Court held that racially restrictive covenants could not be enforced in court, and 1954, when Brown v. Board of Education, prohibited segregation in public schools. These decisions were followed by the Civil Rights Acts of 1957 and 1960, which prohibited some voting restrictions and established the Civil Rights Commission; and lead to the Civil Rights Act of 1964, which finally outlawed discrimination in public accommodations, and the Voting Rights Act of 1965. It seemed then that the tide of American apartheid had been turned toward a new era of enlightened equality.
And yet, over 50 years later, the evidence of flagrant discrimination remains undeniable, not just in instances of police misconduct, but in neighborhood disinvestment, disparate school quality, uneven opportunity, and the overall marginalization of human lives based on color. Once again, we enacted change, and, once again, failed to fully embrace it. Our purpose must be to instill the ideal of equality with a human dimension that will elevate it to a place where it effectively defines the nature of our attitudes toward and treatment of one another, and governs the manner in which we apply justice and offer opportunity.
When I consider the events in Minneapolis that prompted the current outrage, I am reminded of a former mayor of that city, Hubert Humphrey, who, at the 1948 Democratic Convention, spoke in support of a civil rights platform, and declared that the time had arrived to come out of the shadow “and walk forthrightly into the bright sunshine of human rights.” It was time then, and it remains time now.
Raymond Daniel Burke, a Baltimore native, is a shareholder in a downtown law firm. His email is firstname.lastname@example.org.