The true spirit and meaning of the amendments, as we said in the Slaughter-House Cases (16 Wall. 36), cannot be understood without keeping in view the history of the times when they were adopted, and the general objects they plainly sought to accomplish. At the time when they were incorporated into the Constitution, it required little knowledge of human nature to anticipate that those who had long been regarded as an inferior and subject race would, when suddenly raised to the rank of citizenship, be looked upon with jealousy and positive dislike, and that State laws might be enacted or enforced to perpetuate the distinctions that had before existed. Discriminations against them had been habitual. 100 U.S. 303, 306).

Furthermore, while the Court's decision was based on Strauder's right to an impartial jury, the Court believed that all-white juries were discriminatory against the potential jury pool. It held that:

The very fact that colored people are singled out and expressly denied by a statute all right to participate in the administration of the law, as jurors, because of their color, though they are citizens, and may be in other respects fully qualified, is practically a brand upon them, affixed by the law, an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing to individuals of the race that equal justice which the law aims to secure to all others. (100 U.S. 303, 308).

Not surprisingly, the overwhelming condemnation of racism and Jim Crow practices did not last past the Reconstruction era. In fact, "In 1883, the United States Supreme Court ruled that the Civil Rights act of 1875... was unconstitutional and not authorized by the 13th or 14th Amendments of the Constitution." (Wormser). The Court did not question Congress' authority to amend the Constitution, but determined that the Thirteenth Amendment related solely to slavery, and held that the denial of equal accommodations was not a badge of slavery, but, at the most, an infringement of the Fourteenth Amendment. (Wormser). Even at the time, the decision was met with hostility by most blacks and many whites, because it basically legalized segregation. (Wormser). In his dissent, Justice Harlan stated his belief that such discrimination was a badge of servitude, and that Congress had the power to legislate against it because of that taint. (Wormser). Unfortunately, the Supreme Court succeeded in sending a strong message to Congress" it was "1964 before Congress would again pass a civil-rights law, this time constitutionally acceptable, that would forbid discrimination in public accommodations, employment, and unions." (Wormser).

However, the Supreme Court still adhered to the letter of the Fourteenth Amendment, if not the spirit. In Wo v. Hopkins, 118 U.S. 356 (1886), the Supreme Court determined that even facially neutral laws could violate the Fourteenth Amendment's Equal Protection Clause, if they were applied in a discriminatory manner. Petitioners Yick Wo and Wo Le alleged that San Francisco was discriminating against them by refusing to allow them to operate laundries, but permitting white people to operate laundries under the same ordinance. Therefore, they alleged racist application of the law. The Court agreed with the petitioners; the discrimination was admitted, and no reason for it was shown, leaving the court to conclude that it existed because of "hostility to the race and nationality to which the petitioners belong." (118 U.S. 356, 374). Therefore, it held that such an application of the law violated the Fourteenth Amendment. Unfortunately, this decision was never used to strike down any of the discriminatory statutes in the Jim Crow south.

On the contrary, the Supreme Court did not hesitate to hold state laws that discriminated against African-Americans constitutional. In Plessy v. Ferguson, 163 U.S. 537 (1896), the Court upheld race-based discrimination in accommodations. To do so, it absolutely closed its eyes to the reality that the accommodations designated for people of color were inferior to those accommodations designated for white people. Plessy, a man of mixed ancestry, "paid for a first-class passage on the East Louisiana Railway, from New Orleans to Covington, in the same state, and thereupon entered a passenger train, and took possession of a vacant seat in a equality of the two races, or re-establish a state of involuntary servitude." (163 U.S. 537, 543). Furthermore, the Court parsed the difference between political and social freedoms, and correctly claimed that the "distinction between laws interfering with the political equality of the negro and those requiring the separation of the two races in schools, theaters, and railway carriages has been frequently drawn by this court." (163 U.S. 537, 546). However, it was in Plessy v. Ferguson that the Court first openly stated a doctrine supporting the idea of separate but equal facilities, which paved the way for years of legal segregation, notably in the Jim Crow South, but also throughout the entire United States. It is important to recognize that the Court's decision was not unanimous; Justice Harlan, the lone dissenter, took great issue with the Court's interpretation. Harlan's dissent would be mirrored in later Supreme Court decisions guaranteeing equal protection for the races. Harlan stated that:
The thirteenth amendment does not permit the withholding or the deprivation of any right necessarily inhering in freedom. It not only struck down the institution of slavery as previously existing in the United States, but it prevents the imposition of any burdens or disabilities that constitute badges of slavery or servitude. It decreed universal civil freedom in this country. This court has so adjudged. but, that amendment having been found inadequate to the protection of the rights of those who had been in slavery, it was followed by the fourteenth amendment, which added greatly to the dignity and glory of American citizenship, and to the security of personal liberty, by declaring that 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside,' and that 'no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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.' These two amendments, if enforced according to their true intent and meaning, will protect all the civil rights that pertain to freedom and citizenship. Finally, and to the end that no citizen should be denied, on account of his race, the privilege of participating in the political control of his country, it was declared by the fifteenth amendment 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.' (163 U.S. 537, 555).

The major significant change in constitutional equal protection jurisprudence did not occur as the result of an equal protection dispute, but as the side-effect of a totally unrelated case. In United States v. Carolene Products Company, 304 U.S. 144 (1938), a case about dairies, the Court announced the level of scrutiny for certain allegations of constitutional violations. In Footnote Four of the case, the court stated that:

There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth

Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious... Or national... Or racial minorities...: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. (304 U.S. 144, 155).

Therefore, this case introduced the levels of judicial scrutiny and suggested that strict scrutiny might apply to legislation discriminating against minorities.

Strict scrutiny…