Turn of the Century

Inauguration Special: Road to Plessy

January 20, 2021
Turn of the Century
Inauguration Special: Road to Plessy
Chapters
Turn of the Century
Inauguration Special: Road to Plessy
Jan 20, 2021

“Separate but equal” is one of the most infamous lines in American legal history. At the end of the 1800s a nearly unanimous Supreme Court defended segregation as long as Blacks and Whites theoretically had equal treatment. It would take more than half a century to undo this decision in “Plessy v. Ferguson.”

With Joe Biden's upcoming inauguration, we want to unpack a larger history of the Supreme Court and American government. Politicians, lawyers and plaintiffs spend years building up precedent, and Plessy was no exception. For this episode we sit down with former Judge and Podcaster Craig Estlinbaum to discuss the "Road to Plessy vs. Ferguson”. How were landmark Civil Rights overturned and undermined at the end of the 1800s? How can this help us understand our modern legal system?

Craig Estlinbaum was judge of the 130th District Court of Texas from 2001 through December 2020 and has been adjunct professor of law at South Texas College of Law since 2004. He regularly speaks before bar associations and law school programs and his work has been published in law journals at St. Mary's Law School, at South Texas College of Law and elsewhere. He also co-hosts the podcast Hooks & Runs, a podcast about baseball, music and culture

Produced by Joseph Hawthorne

Dill Pickles Rag by Charles L Johnson
The Entertainer by Scott Joplin

Show Notes Transcript

“Separate but equal” is one of the most infamous lines in American legal history. At the end of the 1800s a nearly unanimous Supreme Court defended segregation as long as Blacks and Whites theoretically had equal treatment. It would take more than half a century to undo this decision in “Plessy v. Ferguson.”

With Joe Biden's upcoming inauguration, we want to unpack a larger history of the Supreme Court and American government. Politicians, lawyers and plaintiffs spend years building up precedent, and Plessy was no exception. For this episode we sit down with former Judge and Podcaster Craig Estlinbaum to discuss the "Road to Plessy vs. Ferguson”. How were landmark Civil Rights overturned and undermined at the end of the 1800s? How can this help us understand our modern legal system?

Craig Estlinbaum was judge of the 130th District Court of Texas from 2001 through December 2020 and has been adjunct professor of law at South Texas College of Law since 2004. He regularly speaks before bar associations and law school programs and his work has been published in law journals at St. Mary's Law School, at South Texas College of Law and elsewhere. He also co-hosts the podcast Hooks & Runs, a podcast about baseball, music and culture

Produced by Joseph Hawthorne

Dill Pickles Rag by Charles L Johnson
The Entertainer by Scott Joplin

Joseph Hawthorne:

Welcome to turn of the century, a podcast about the turn of the 20th century. Today, we have an especially relevant, and I think timeless subject about civil rights race plessy versus ferguson in the Supreme Court. The term separate but equal is one of the most infamous lines in American history. At the end of the 1800s, a near unanimous court defended segregation, as long as blacks and whites theoretically had equal treatment. It would take more than half a century to undo this decision in Plessy versus Ferguson. Yet Supreme Court cases don't happen in a vacuum. clerks and lawyers spend years building up precedent. For this episode, we sit down with former judge and podcaster Craig asked Obama to discuss the road to Plessy. How were landmark civil rights overturned and undermined by the end of the century. How can this help us understand our modern legal system? Let's find out. Hi, everyone. Glad that you can join us today for a conversation with Craig esslyn Bohm about the Supreme Court, race and civil rights at the end of the 1800s. We're calling this the road to Plessy were Plessy versus Ferguson. Esteban was a judge on the 130 District Court of Texas from 2001 through December 2020. It's been adjunct professor of law at South Texas College of Law since 2004. He regularly speaks before bar associations and law school programs. And his work has been published in law journals at St. Mary's law school, South Texas College of Law and elsewhere. He also co hosts the podcast hooks and runs a podcast about baseball, music and culture. Thanks for joining Craig.

Craig Estlinbaum:

Thank you for having me.

Joseph Hawthorne:

So I'm really excited for this episode. And to talk about both Supreme Court history, which I think is always relevant, as long as our constitution still exists, but also to talk about the issues specifically to do with what was one of the earlier civil rights movements, and the fight back and forth for those rights. So thinking about a path, I'm gonna repeat that. I've been thinking about this episode as a kind of path to some of the Jim Crow segregation that we know about, and the doctrine of separate but equal, the civil rights movement seemed so hopeful at the end of the Civil War, and ended so disastrously by the turn of the century. We're gonna start with reconstruction with the end of the Civil War, and work our way to that famous doctrine of separate but equal and Plessy vs. Ferguson. So first of all, Craig, can you explain a little bit about what the reconstruction amendments were? What were the cornerstones are the 13th 14th and 15th amendment at the end of the 1860s.

Craig Estlinbaum:

Of course, the Reconstruction Era is the period after the Civil War from 1865 to the election of 1876, which is generally described as the reconstruction period. And after, before the Civil War, there was a clear line distinguishing between the states and the federal government and the federal government was one a very limited power. But the Radical Republicans are the republicans of the time after the Civil War, after Appomattox, realized that they had to make some changes in the constitution to reflect the new reality after the Emancipation Proclamation and in the end, the bringing together again the former union after the demise of the Confederacy. So the first of the three reconstruction amendments to the Constitution was the 13th Amendment, which passed in 1865. Immediately after Appomattox and before the 11, rebelling states were returned to the Union. The 13th amendment abolished slavery and involuntary servitude except as punishment for crime and gave Congress the authority to enforce that amendment. And so this is the amendment that eliminated slavery as a matter of constitutional law. And it happened immediately after the Civil War ended in the spring of 1865.

Joseph Hawthorne:

And if we're going for pop culture history of for a moment, correct me if I'm wrong, but for any fan movie fan, That's the amendment in the movie Lincoln. Right?

Craig Estlinbaum:

Correct. Okay,

Joseph Hawthorne:

so that's like at the very end of the Civil War, if you're imagining a Daniel Day Lewis Lincoln figure, right, I

Craig Estlinbaum:

think Lincoln had already been assassinated. By the time the 13th amendment passed, I don't have the actual months involved. But Lincoln was assassinated, I believe in April of 65. Okay, and this amendment passed, you know, mathematics, I believe, was right at that time as well in the spring of 65. And then the amendment passed shortly thereafter, before there was even any return of the rebelling states into the union. So the 13th amendment was not voted on by the 11 states in the Confederacy.

Joseph Hawthorne:

And so you know, I was just looking at the the dates again. And so it's interesting, because so much happens. I mean, this civil war is very interesting, but so much happens in the war at the very end of the war. But the next two amendments that we're talking about, don't get passed, don't get ratified until a few years later. So why is that? Why are these amendments, the 14th and 15th amendment and why did they take more time to ratify?

Craig Estlinbaum:

Well, in 1865, after the 13th, amendment, Congress passed what became known as the Civil Rights Act of 1866, that guaranteed citizenship without regard to race, color, or previous condition of slavery or involuntary servitude. But that amendment was vetoed by President Andrew Johnson, who was Abraham Lincoln's Vice President, and Johnson vetoed because he objected to the the act conferring citizenship on Friedman, at the time when 11 of the 36 states were not participating in the vote. And he also felt that the act discriminated in favor of African Americans against white citizens. That veto was overridden by Congress. It was the first time in American history that a veto had been overridden by Congress. But Congress was worried that Johnson had a point in terms of enforceability. So they went to work on what later became the 14th amendment that was ultimately passed in 1868. And this is the amendment that guarantees all citizens due process of law, equal protection of the law, and a guarantee against infringement on their privileges and immunities. Those are the three main parts of section one of that amendment. That's the long this is the longest of the three amendments in the Reconstruction Era. Sections two, three and four dealt with some war related measures like Confederate debt, repayment of union debt, and issues related to who could serve as a representative of a rebelling state. And then section five of that amendment gave Congress enforcement power to pass laws enforcing the 14th amendment.

Joseph Hawthorne:

And that's really, so I mean, I keep saying it's interesting, but it really is fascinating, because, you know, I think, a lot of scholarship about the Supreme Court about law and precedent and the Constitution talks about intent. And it sounds like the intent of the of Congress of people ratifying the 14th amendment was that they really wanted to make sure this was enforceable that they really wanted something that was sweeping, Would you say that's accurate?

Craig Estlinbaum:

I think that's accurate. Of course, the fifth amendment includes both equal protection and due process of law as well. But prior to the Civil War, those were considered to be rights only, again, only that that related to the federal government. In other words, state governments had their own thing, and the two are considered to be two separate spheres of authority. And it was definitely the purpose of the 14th amendment was to bring the previously enslaved African American population into citizenship and all of the rights and privileges and immunities of citizenship that had previously been enjoyed only by white, by white Americans.

Joseph Hawthorne:

And okay, so thank you for clarifying that. And so, the 15th amendment, pretty simple compared to the 14th. But what is the 14th amendment layout? And I'm also just curious why that also took longer to pass why it wasn't just in, I guess, concert with the 14,

Craig Estlinbaum:

the 15th amendment passed in 1870. And it says simply that the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race color or previous condition of servitude. There were some issues in the election of 1868. Regarding interference with the right to vote, and and this was an amendment that was designed to address that. But you still had a complicating factor when you're talking about rights, the right to vote, because the right to vote is typically defined by the state. And I think I'm pretty sure in as late as 1870 there were still no states that were giving abroad. right to vote to women. So you still had the idea that the right to vote was not something that was universal as opposed to say the right to due process of law.

Joseph Hawthorne:

Gotcha. Yeah, I assume as opposed as universal for citizens. So, thinking about these amendments as like, almost the one of the high points of reconstruction, right that these are, we agree objectively good standards, good amendments to include. So how do these get revised, undermined or changed by the Supreme Court in later years?

Craig Estlinbaum:

Well, the first of the three cases that we're going to talk about in some detail, there were many other cases that followed the same pattern. But there's a thing a step of stair step three cases that really work to undermine principally undermine the Reconstruction Era amendments in the first of the three is are referred to as the slaughterhouse cases that were decided by the Supreme Court in 1873, five years after the 14th amendment passed. And that's a case involving that had nothing to do with race whatsoever. That was a case involving a Louisiana law that incorporated a company called the Crescent City livestock landing and slaughterhouse company into a state controlled monopoly that and that required all butchering of animals in New Orleans to be done at that facility. So it essentially was a law creating a state controlled monopoly. privately owned state regulated monopoly, it might say. And so the slaughterhouse cases came about this the result of the law was it all slaughterhouse operations were centralized to this one facility in New Orleans by law. So you had other entities that had either had their own slaughterhouses on site or other entities that had formed trade associations that had slaughterhouses. Now, they couldn't use those facilities to slaughter animals, they had to go to the central monopoly, the Crescent City facility, and incur that travel expense and time and also the fees associated with using someone else's slaughterhouse facilities. So they brought a challenge in, they brought some challenges immediately in state court, but those all lost because it was determined under state law that that was a reasonable exercise of the state police power for health, safety and so forth. But john Campbell, a former United States Supreme Court Justice, who resigned his seat during the Civil War with the Louisiana seceded from the Union, brought a lawsuit against the state and claimed that the MMA that's the statute that created the monopoly violated the 14th amendment privileges and immunities clause. And the idea was that is a privilege and immunity for an individual to be able to labor freely in an honest application. And so that case, because now you've raised this 14th amendment question, a question of federal law after the after the the plaintiffs last at the Louisiana Supreme Court had an avenue to get to the United States Supreme Court.

Joseph Hawthorne:

So, so far, this doesn't have anything to do, as far as I can tell, with race. How does this connect to the theme of Voter Protection of civil rights? You know, where does this all come in?

Craig Estlinbaum:

Well, he had a conflict in the on the Republican side, between a general belief that all Americans have certain fundamental rights that should be secured against infringement. But the states were primarily responsible for ensuring those rights. So there's that conflict, again, that tension between federal and state power and authority.

Joseph Hawthorne:

And I'm the book Go ahead. Okay. So I'm just curious, because, you know, I think about the republicans in the Radical Republicans of the time as kind of being big business, but also having some interest in big government. Were there any politicians that wanted to expand the scope of government or the democrats also in a bind here?

Craig Estlinbaum:

Well, the Democrats, in that period of time had regained control of the state government, the arms of state government by 1868 1970, you started to see the, for example, there were really 1870 not not hardly any African Americans getting elected to any positions, because the right to vote had been had been impaired to that point. But the reason that this case relates to race is because ultimately the butcher's lost their case in the Supreme Court. It was a five to four decision in favor of Louisiana, the majority held that the 14th amendment privileges and immunities clause does not protect fundamental rights such as the right to practice an application and so Justice Miller wrote for the majority, he said the 14th Amendment's purpose was to secure freedom for the newly freed African Americans. That's not his term. Of course, I'm paraphrasing, but not to expand the rights of the state, against the state for white people. And he also said that the privileges or immunities clause only affects rights expressly acknowledged, acknowledged in the Bill of Rights, that there's no, there's no other privileges and immunities that are protected. And the majority also drew a line, again, the state versus federal power and authority and said that the state under the 14th amendment is prohibited from from violating the privileges and immunities of US citizenship. But the 14th amendment does not protect prohibit a state from violating a privilege and immunity of state citizenship. So they kept in place this distinction between state citizenship and US citizenship. That was really a big philosophical issue coming out of the during the reconstruction.

Joseph Hawthorne:

Yeah, and I was about to say that, you know, the Civil War is ended. And now it's been a few years at this time that it's been ended. But there is this underlying idea of states rights, that, you know, there are things the state has the right to do. And it's honestly a, you know, is a bit surprising that this isn't directly about about race, but it is a kind of states right argument that will affect the doctrine of separate versus equal that will be on the path a road to Plessy versus Ferguson. So, you know, when you go ahead, yeah,

Craig Estlinbaum:

yeah, I was gonna say it is a key first step, because people who would be advocating for fuller rights for the former enslaved African Americans would certainly be relying upon this concept of privileges and immunities to protect those rights. So one of those obviously, would be the right to, to work for pay, which is something that African Americans will have to do under, under the under as free men, you know, the ability to apply a trade of your choosing, well, so much for that under the slaughterhouse cases, because that's exactly the issue that is raised here in this case. So there were four dissents in the case, and the sense of thought along the same kind of line, which is that there really isn't a distinction, four should not be any more a distinction between state citizenship and national citizenship. And that due process and privileges and immunities are rights that all citizens have. And these rights could not be bridged by state legislation. So the dissenters are looking for a much broader protection against state infringement of what would be generally referred to as fundamental rights.

Joseph Hawthorne:

And it's interesting, too, that plessy versus ferguson as a spoiler is going to be a nearly unanimous decision. At this point, we do have more debate within the Supreme Court. So I want to keep that in the back of our minds. So to transition then, ultimately, what's the result? What's the practical results of the slaughterhouse case cases? And then what do we transition to next, on the road to Plessy?

Craig Estlinbaum:

Well, the the practical effect of the slaughterhouse cases cases is that the idea that there are privileges and immunities that the federal government will protect against state infringement goes out the window. And that's it's noted by the dissent. They say that the 14th amendment has been rendered a vain and idle amendment as a result of the slaughterhouse cases, at least as far as the privileges and immunities clause. clauses go. The majority just says that the rights of US citizenship are very few. And they're in they're limited to those that are written in the Bill of Rights. the ironic thing about that is the ninth amendment is a is an amendment that says the enumeration in the Constitution of certain rights shall not be construed to deny or disparage any right. It is not that is retained by the people. So even the Bill of Rights itself acknowledges that there are fundamental rights other than the ones listed in the Bill of Rights. And that's, that's in the ninth amendment. And

Joseph Hawthorne:

you know, but before, actually, before we jump forward in time, before we start moving into the 1880s and 1890s. I'm curious, I haven't thought about this before, but for, I don't know, about 1015 years. So the Civil War through the 1870s it was pretty much all republicans in charge of the federal government. Do you know why? There were still I guess, these conservative justices are justices who were open to overturning this legislation. Because it, it seems like you would want you would have republicans or like republican appointed justices on the court that would want to defend the use of the 14th amendment.

Craig Estlinbaum:

You would, but there, but as I mentioned, I think there is this tension. But I mean, it wasn't just universally accepted that the rights of state and US citizenship are the same and that your rights do not depend upon the state where you reside, is not something that was just automatically adopted by everyone. And so there were still by some people, even Republicans, even maybe some Radical Republicans, this idea that there still is a distinction between US citizenship and a citizenship of a particular state. So we don't we don't really see that today, we kind of accept that today, in terms of what we would call civil rights being national in scope, and not dependent upon being a resident of Texas versus South Carolina versus New York, or whatever. But in eighth, and even after the Civil War, I don't think this was an idea that was just instantly and automatically adopted. So there were still some philosophical and I'm not really sure that that the that this case, for example, was decided with an idea of under cutting the ability to protect African Americans.

Joseph Hawthorne:

That's a good point that, you know, first of all, we don't know what cases are necessarily going to be the most important years down the line. We don't know all the repercussions, even today, even in 2001.

Unknown:

But,

Craig Estlinbaum:

but I would say before we move from the SAR house cases that there's a he's deceased now. A scholar named Edwin Samuel Corwin, and he made an interesting observation about the slaughterhouse cases. He said, this is a quote unique among constitutional provisions. The privileges and immunities clause of the 14th amendment enjoys the distinction of having been rendered a practical militate by a single decision of the Supreme Court delivered five years after the provisions ratification. And even today, the privileges or immunities clause of the 14th amendment is a dead letter. It's never been revived. Wow.

Joseph Hawthorne:

So yeah, what I was gonna ask is that a little bit later on, but so what does that mean for today? Well, there

Craig Estlinbaum:

is a bit of a debate about that. I think, clearly, Justice Thomas on the court today, and I think there's some decisions in which justice Gorsuch has joined Justice Thomas, arguing for a revival of the privileges and immunities clause of the 14th amendment. their reasoning and rationale for doing this is open to debate. But Justice Thomas, and maybe justice Gorsuch, depending on where he is exactly on this issue, are the only two justices that I'm aware of since the slaughterhouse cases that have made that argument. And it is a it is a it was a full on clean kill of the privileges and immunities clause of the 14th. amendment. The slaughterhouse cases was it just it just died? It never was revived,

Joseph Hawthorne:

but so far. Okay. So I know you've you've kind of hinted around this or spoke about it already. But what would that mean, if Thomas if Justice Thomas or justice Gorsuch got their way? Theoretically, what could that mean for law in the United States? In a very hypothetical question?

Craig Estlinbaum:

It's totally hypothetical. Because you'd have to find out what what exactly would be the majority of the courts view of what are the privileges and immunities clause? I mean, the privileges and immunities of United States Citizenship, we don't have not developed that area of law to the point where we can say conclusively what it would mean, we also don't know what it would mean, if that became the prevailing opinion of the court. what it would mean for what we traditionally see is due process and equal protection arguments, because there's actually three parts to the 14th amendment due process equal protection and privileges and immunities. And because the privileges and immunities has been a dead letter for so long, and really was never an active part of American jurisprudence, that clause of the 14th amendment, it's kind of an open question as to what it would mean in today's in today's life.

Joseph Hawthorne:

So it's kind of one of those pieces of text in the constitution that is sitting there in plain sight, but it's it's a nebulous tool.

Craig Estlinbaum:

Yeah. Yeah, the way it works for Justice Thomas, and I don't have any specific examples, but he will sometimes concur or dissent. And he will say that his concurrence or his dissent is not based upon the rationale of the majority, but he would make this decision Based upon his application of his understanding of the privileges and immunities clause, oh, wow is kind of how it works. So he will, you will find cases where the majority might decide a case based upon their application of due process or equal protection or the First Amendment or whatever. And he would concur, but do So applying the privileges and immunities clause of the 14th amendment. So that's how he operates it. And if somebody really wanted to go in and study his privileges and immunities decisions, you can get some probably, flavor of what he believes the scope of that that section is. Gotcha.

Joseph Hawthorne:

Yeah, no, and I didn't know that about Thomas. That's really, that that's something that's really new to me. But speaking of less hypothetical of more grounded in reality of the law, so we have these slaughterhouse cases, which create a whole separate constitutional question about what privileges and immunities could ever mean, for for us jurisprudence, but going forward on our road to Plessy versus Ferguson, what are the next cases? How do they develop?

Craig Estlinbaum:

In 1875, Congress passed the Civil Rights Act of 1875. And this is a bill that prohibits racial discrimination and ends, public accommodations, public conveyances, public transportation, places of amusement, and so forth. These K, these were challenged in what are called now the civil rights cases, they went to the Supreme Court and the Supreme Court decided in 1883, that the Civil Rights Act of 1875 was unconstitutional. And so that bill, that bill was struck down the 13th and 14th amendment, the court says does not empower Congress to outlaw racial discrimination by private individuals. So this creates what's called it the state action doctrine that the 14th amendment in the 13th amendment only apply against state action and not individual conduct. So the Civil Rights Act of 1875, was held to be an unconstitutional regulation of private conduct in 1883. And this, this was a major piece of civil rights legislation that came right on the heels of Plessy. Again, Plessy, I'm not sure at that time had really been seen in racial terms, or what it meant for race relations or racial related legislation by 1875. But the case also indicated that private interference, private interference and voting jury service appearing as a witness in a case all we're also beyond Congress's reach or control. Now, the obvious implication of this case is states now don't have to affirmatively restrict the rights of anybody, because you have these extra jurisdictional extra legal entities like the Klan, and other types of associations that are private, that can interfere, intimidate, and so forth against voting, and the whole range of civil rights. And that's private conduct beyond the reach of Congress. And if the states decide not to restrict or prohibit planned activity or other types of activities in their in their state that's, again, seen as the state's business and how did

Joseph Hawthorne:

that happened, you know, because we were talking about Congress's intent and about reconstruction, the goals of legislators, and the legislators. And there's the amendments that passed that these are in the Constitution. And there's also clearly legislation that Congress wants to, you know, pass and protect people who are threatened by the Klan or by state governments. So how does the Supreme Court go from this technical ideological debate in slaughterhouse to striking down civil rights legislations?

Craig Estlinbaum:

Well, in this case, they're they're looking they're just very narrowly interpreting the authority of Congress as it relates to regulating conduct by private actors in the state. And one of the things that happened between 1875 when this bill passed in 1883, when the cake Court made this decision was the election of 1876 were rather Furby Hayes was elected on a vote, I believe at the House of Representatives in a race against Samuel Tilden. The election of Hayes the republican was by and large a compromise between Republicans and Democrats in Washington, whereby democrats would allow rather Furby Hayes to become president in exchange for removal of federal authority in the States. And it was that agreement that essentially ended the reconstruction error because once the federal authorities were no longer in the states in the rebelling states, able to protect in any way the rights of former slaves or African Americans now 10 years after the Civil War 11 years, the states were given pretty much free rein at that point to render African American second class citizens. The Civil Rights Act of 1875, which predates by one year, that election was an effort to, to offer that protection. But the court after the election, made this decision was seven to one. The only dissent was by Justice john Marshall Harlan, who served on the court for 34 years and is known as the Great dissenter because of his the sense in so many of these critical cases, he was a Kentucky native and a former slave holder. So where you're from, or what your pre Civil War pass was, does not necessarily dictate how you voted in some of these cases. But this was a sweeping decision, a horrible loss for the advocates of civil rights, because the response in the south to this particular decision was the beginning of Jim Crow laws and race codes. And the case effectively ended any effort any of the republicans efforts to guarantee civil rights for African Americans through congressional action, because this case was a total bar against that type of activity. And of course, the states in the south, or any state really, that was seeking to deny African Americans their civil rights could easily do so simply by turning a blind eye to any entity, any private entity that that can use force or intimidation to essentially accomplish that goal.

Joseph Hawthorne:

And so for this, for these cases, it comes back to the idea of just talking about about politics and Supreme Court about politics in the courts. And I forget the exact quote, but there is this kind of idea that the Supreme Court isn't a political body, but it keeps its ears or eyes on where the country is heading that it does see what's going on. So it sounds to me like, you know, the court is both slashing down civil rights legislation, and also sensing where the country is going, which is in a terrible direction for you know, Jim Crow segregation in the south, but that it's moving in tandem with some of these trends as well. I'm curious about what this means for basically, the 20th century and beyond, you know, what, what happens to these precedents?

Craig Estlinbaum:

Well, the civil rights cases is still good law, the idea of the state action doctrine is as vital and vibrant today as it was when it was created in 1883. For example, in 2000, the United States affirmed this principle in a case called United States versus Morrison. This is a case that held Congress's that Congress did not have authority to enact parts of the Violence Against Women Act, Chief Justice Rehnquist was joined by O'Connor Scalia, Kennedy and Thomas in a five to four decision affirming the central holding of the Civil Rights Act, civil rights cases that the 14th amendment did not allow Congress to regulate private discrimination. So the this case is, is alive and well, not today in terms of the 14th amendment. And it's called the state action doctrine.

Joseph Hawthorne:

And, you know, I mean, I understand the idea that precedent tends to stay. But it's not especially a good look, when the precedent is, you know, terrorizing African Americans denying them the right to vote or letting their rights be denied. I guess whatever way you want to go about saying that, and then also striking down or nullifying parts of the Violence Against Women Act. So are there efforts that you know, of to try and overturn this precedent or kind of make it a moot point?

Craig Estlinbaum:

I don't think the state action doctrine, is it any risk of being set aside? That's just my opinion on it? I don't think that's how else is abused.

Joseph Hawthorne:

I'm just curious, besides cuz these are pretty. These would seem to be like unpopular rulings. So I'm just curious what other instances you know, that it's used in?

Craig Estlinbaum:

Well, I think anytime a person brings a claim on under the 14th amendment, they have to allege that there's a state actor involved. I think that where you might see this come up is there's currently in debate over the so called censorship in social media. There's people that say, well, social media is censoring me because I'm conservative or Social media censoring because I'm liberal, or they're censoring me, because I'm saying things that aren't objectively true, or they're censoring me because I'm advocating violence or whatever the argument of the day is. So to the extent that somebody may choose to sue, let's say Twitter or Instagram or whatever, under the 14th amendment for violating their due process of law, civil rights, they will under the state action doctrine, state action doctrine lose, because Twitter and Instagram and Facebook are all private entities, they're not state actors. So that's where, you know, you kind of run into a bit of a of an issue. There is an argument that if the 14th amendment was applied to private individuals, that it would create a massive legislation because people can discriminate in ways that happen, you know, all the time. I will say that one way that the court did get around the state action doctrine, to a degree was the case were in the 40s. a case that the court held that, you know, IRS restrictions and deeds against sales to African Americans were held unconstitutional. They held not that the private action of the seller, including the term in the deed, when he sold to the buyer, that was not held to be unconstitutional, or something that the court could predict the state action was the enforcement of the restriction by the state courts. So the so that So now, when you see deed restrictions and old deeds that prohibit sale to African Americans or people of the Jewish faith or whatever it might be, those are those restrictions are not unconstitutional. But if you went to enforce them in court, the court would not enforce the restriction under the state action doctrine was that court enforcing the action is of this would be considered the state actions violative of the Fourth Amendment interest.

Joseph Hawthorne:

So it's interesting, too, that we're kind of talking about from this, from these cases, there is legal documentation, there are words on paper, that are that their meaning is not changed, but their their meaning has been, let's say, Allah, would you say nullified or altered by the precedents from this case that the words exist, but they aren't necessarily used?

Craig Estlinbaum:

Well, in fairness, you know, the 14th amendment doesn't say, expressly that it applies against private action. So it's just the way the court interpreted at that time. I think there are probably historians that have looked into the private records and private papers of the judges of that time that may have a better understanding of the reasoning why these, for example, the civil rights cases in 1883 was decided so restrictively, I don't really know that. You know what I draw the line from the election of 1876. And that kind of compromise that led to the elect the choice, I guess, in the absence of a clear victory of Rutherford B. Hayes, that there's a line from there to the way this case was decided. I'm just pointing that out as a matter of historical fact. But what was in the mind of the judges, justices that made the decision that I don't know that that I certainly don't know. And I don't know that any historian has done that work. That's a

Joseph Hawthorne:

little legwork. Yeah, you could fill books with that.

Unknown:

Yeah. So

Joseph Hawthorne:

speaking of, of what you could probably fill books with the plessy versus ferguson case, is a big one. And that's kind of that's the road we've been on. Right. So let's break down. What was Plessy? You know, what happened there, first of all, and then why was that? so important? Why is that such a infamous case today? Well, the

Craig Estlinbaum:

after the civil rights cases in 1883, the states, particularly particularly in the south, but throughout the country, perhaps to some degree or another began to write all of these Jim Crow laws that essentially created the category of second class citizenship for African Americans. And one of those laws was at Louisiana law that required railroads to provide separate but equal accommodations or rail cars for white and colored as they call it, then colored races. So the law also barred persons from occupying real cars other than as assigned to them by race. So it would be a violation of the law for an African American to be in the portion of the car that's desired. That's designated for white passengers. So a guy by the name of Homer, Adolf Plessy, who, by his own account was one eighth, black agreed to be the test case, for an association that included civil rights advocates and railroad companies who found that this was not a particularly efficient way to run a railroad. And so they Plessy went into the white car and he was arrested and one thing led to another he was convicted, The case went to the Supreme Court. So this then became one of the major test cases of the Jim Crow laws that were affirmatively now state action affirmatively, creating separate facilities, separate schools separate the whole bit, separating the the races at the time. So this case also gets decided seven to one in favor of the Louisiana law, Justice Brown, wrote the majority opinion and in the majority opinion, he created what's called a separate but equal doctrine that the 14th amendment did not require states to integrate or to have the same rights for African American says why citizens, but said that the that said those legal, those legal distinctions are unconstitutional, as long as they have equal facilities that can be separate, but they have to be equal so that you have this separate but equal, so separate schools, but equal, worse, the problem was nothing was equal, as well. So he, he created this doctrine, and the only dissent again, was justice Harlan, the great dissenter, as he, as he was known, and he was actually very famous for this dissent, because his dissent became the cornerstone for Brown versus Board of Education, which was the case that overturned Plessy, in Plessy, was already kind of dying on the vine with some of the earlier cases, but it was brown versus board in 1954, that overturned Plessy.

Joseph Hawthorne:

And so I'm curious and this I know, this kind of goes into, you know, non turn of the century history, but it relates. So I'm going to ask, in terms of overturning a case like this a precedent like this, how does that happen? How, you know, how did civil rights lawyers, activists go about undoing Plessy?

Craig Estlinbaum:

Well, you could do an entire series of podcasts or shows on why was really a strategy primarily attributed to later justice, Thurgood Marshall, who was the lead Attorney for the NAACP for so many years. And so many of these cases, but he took a very incremental approach where his his view was that if to attack the, the Plessy, versus ferguson in the Jim Crow laws, you had to do it in a very strategic incremental way, piece by piece, you had to start tearing apart the foundations of these laws. So you go back to the 30s and late 20s, with cases that were incrementally attacking Jim Crow and separate but equal, that culminated with brown versus board to a point where there's not much left to to the doctrine.

Joseph Hawthorne:

I do. That's good.

Craig Estlinbaum:

That has to say that's one way that it happens. But sometimes cases are just flat out overturned. Sometimes they're flat out overturned, because a father for decision from five years ago now has a five to four majority of the way so they just vote differently when they get a chance to overturn it sometimes cases are what's called limited to their facts. So that it's a way for the court to say we're not really saying we made a mistake in that earlier case, but we're limiting that decision to those particular facts. So there's different ways that courts Can, can, can limit or undermine or even expressly overturn a previous decision. And of course, that gives lawyers different strategies to how they attack precedent that is not in their favor.

Joseph Hawthorne:

And I do think it is it is exceptional. Some of these Supreme Court cases we're talking about from the turn of the century from the late 1800s are still applicable today. But Plessy versus Ferguson, is not that it was particularly targeted. Because, you know, what, what happened there practically What did that case mean, going into the 20th century?

Craig Estlinbaum:

Well, that case, not you know, the Civil Rights Act case, the civil rights cases from 1883 was harmful to African Americans because it restricted the scope of the 14th amendment significantly so that only a affirmative state actor could be held. Responsible that gave a lot have free rein to extra legal entities like the Klan and so forth to do the dirty work of intimidating African Americans. But the Plessy decision, there was already pretty much a de facto separate but equal being established throughout this, the south and in parts of the country, certainly as Elisa schools, but the plessy versus ferguson case enshrine that as as lawful. And that was the distinction because up until this point, there was still some hope that there would be some relief at some point that the reconstruction amendments would be activated in a way that gave African Americans some access to general civil rights in the country in Plessy. versus ferguson was the final nail in the coffin for that. And, and so the Jim Crow laws that had been established after 1883 or even before were given full effect, and the South was given a license then to create a case system, a caste system, where African Americans were left relegated to second class citizenship.

Joseph Hawthorne:

And I was listening so deeply I forgot for a second. Well, I

Craig Estlinbaum:

was gonna say so on the on justice Harlan sin, He created the notion of the colorblind constitution, he affirmatively for to the Constitution is colorblind. He was against this decision, because obviously, the Louisiana law is anything but colorblind. And so that's where you get the idea of the colorblind constitution is from justice harness dissent in Plessy versus Ferguson.

Joseph Hawthorne:

Yeah. And I think, you know, you were pointing out several times before the Great dissenter, Justice Harlan, you know, this is a good period to for finding, you know, passionate, dissents passionate quotes to pull out from people that are trying to stop this seeming tide towards Plessy. The road towards separate but equal and so to wrap up on is thinking more broadly about this time period, as opposed to the eight or nine justices on the Supreme Court. You know, do you have a sense of how people viewed the supreme court at this time? Was this big news? Or was this more technical jargon that happened to enforce or, you know, legalize what was already going on in the country?

Craig Estlinbaum:

Well, I've read the reports that say that after the civil rights cases, in 1883, there were protests in some of the cities against the decision there was there was the abolition movement from before and during the Civil War morphed in a sense, into a civil rights movement. And so there was always a pro civil rights movement in the country. And there were always African American organizations that were working to give African American citizens access to the full American experience in the full range of rights that white citizens always enjoyed, or at least white male citizens always enjoyed are known things like voting. So that was always happening. And there was really never a period of time where that movement was totally dead. Even after Plessy, there continued to be civil rights, civil rights organizations all across the country that worked toward toward advancing the cause of civil rights for African Americans, they just were would be dealt these two feats. And it was a very dark period from really plessy versus ferguson until probably the World War Two, you had a whole period in the first three decades that say, if the of the 20th century where lynchings were on the rise, African Americans were really up against the wall in terms of having any rights that that people would work to that the body politic would recognize. But you still had civil rights, you still had wb Dubois, and you still had, you know, all of these individuals that were active in, in anything that could do to make things better for for African Americans.

Joseph Hawthorne:

That's Well said. And that's also a good transition for what I hope are other podcasts that are after the turn of the century. And, you know, hopefully podcasts that also are about some of the better news in history that we then what we've been able to talk about, but I think this is incredibly valuable. Very interesting. And it's also I really appreciate you talking about how some of these precedents are still on the books today, how these cases still matter today. Is there anything else that you think is is important to mention about these cases or why they matter today?

Craig Estlinbaum:

You know, I think I think it's just you know, when when, when we first started talking about doing this and really leaking Everything from the reconstruction amendments through the the three main cases of the 20 some odd year period. It really is a linear story about how you start with the promise of the reconstruction amendments and and with the really tough case to take plessy versus ferguson Plessy. Today is widely regarded as one of the worst decisions in the Supreme Court history along with Dred Scott, which was the decision right before the Civil War. And probably in the 20th century, I'd say the poor Matsu case, which was the case that allowed for internment of Japanese American citizens during World War Two. And then buck vs. Bell was another case, it's widely regarded as really bad. That's the case that upheld forced sterilization of purpose of a statute that provided for forced sterilization of people with mental and intellectual disabilities. So there have been some really bad decisions. Plessy is probably regarded as one of the two or three worse decisions in the in the courts history. And like I say, that case was, for all intents and purposes overturned with Brown versus Board of Education. But, but yeah, some of these, the state action doctrine is alive and well, you know, I can see both sides of that. And you know, you can always have arguments about whether it's too restrictive or not restrictive enough. But, you know, these cases can have really long legs.

Joseph Hawthorne:

Yeah. And I think it's good to think about, which is what you were kind of, I think, hinting at before, it's good to think about the fact that history stays with us. Yes. And, you know, legislation stays with us. But whether something, whether one case is still good law, or one or other cases, the law precedents been overturned, it still matters, it's still, you know, affects the world that either our parents lived in, or that we live in today. So we're gonna wrap it up there. But thank you, Craig, so much for talking. If people enjoyed listening to this, where else can they find your voice?

Craig Estlinbaum:

Well, I have a podcast that doesn't ever talk about the Supreme Court. It's called hooks and runs. It's a podcast about baseball, music and culture. And we do talk about whatever we feel like talking about, it's comes out weekly on Tuesdays. And you can find us at hooks and runs.com. or anywhere that you might listen to the podcast.

Joseph Hawthorne:

I'm just curious before I totally let you go. Did you ever we talked about baseball? Did you ever talk about the the free agent decision, the Curt Floyd on your podcast?

Craig Estlinbaum:

We talk about free agency we we have not talked about that. We began the podcast in March of 2020. And during the season, we talked about what's happening during the season. So that would be the kind of thing we might talk about in the offseason. Gotcha. So we'll see what comes up in the next few few weeks while we're in the offseason. Needless to say, We have great timing. We started the podcast in 20 in March of 2020, right as the spring training was being shut down and right as the music industry at least alive because we want to talk about concerts that we went to. So we haven't been to a concert since March of 2020. Because I haven't been any.

Joseph Hawthorne:

So you're getting really good at being creative.

Craig Estlinbaum:

You're having to be creative. Exactly.

Joseph Hawthorne:

That's awesome. Thank you,

Unknown:

judge.

Craig Estlinbaum:

Thank you for having me.

Joseph Hawthorne:

Thank you. Judge Craig esto bomb, also podcaster hooks and runs, and it's been a really great talking. I hope you enjoyed this conversation.