CBA Record September-October 2026

PRO BONO WEEK 2026 – A MORE PERFECT JUSTICE SYSTEM

language, as understood in that day, would embrace them [the enslaved race], the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted; and instead of the sympathy of mankind to which they so confi dently appeared, they would have deserved and received univer sal rebuke and reprobation.” Underscoring the consequence of social “rebuke and reproba tion,” the Court stated that these distinguished men “perfectly understood the meaning of the language they used, and they knew that it would not in any part of the civilized world be sup posed to embrace the negro race, which, by common consent, had been excluded from civilized Governments and the family of nations, and doomed to slavery.” That understanding, the Court stated, had not changed by 1787 when the Constitution was adopted. Thus, to support its dismissal of Scott’s case, the Court relied on the historical view that Africans were not a part of the human family because they were considered property. Accordingly, “it is too clear to dispute” that they were excluded from the Constitu tion. And were not equal to the framers. Civil War and Change The Civil War was fought shortly after the Dred Scott decision came down. The issue of the enslavement of Africans was at its core. After the war, the Constitution was amended by adoption of the 13th and 14th Amendments, which abolished slavery and guaranteed equal protection of the law for these citizens of the United States. After the 14th Amendment was adopted, slaveholding and nonslaveholding states passed laws requiring the separation of Blacks from whites. Blacks argued that this legalized separation violated the Equal Protection Clause. Plessy v. Ferguson The meaning of “equal protection of the law” was addressed in Plessy v. Ferguson, 163 U.S.537 (1896), a case that would shape segregation law for decades. Plessy brought his case to the United States Supreme Court, seeking a determination of the meaning of “equal protection of the law.” Plessy had boarded a train in Louisiana and was directed by the conductor to sit in the colored-only car. He refused, was ejected from the train, and was arrested for violat ing Louisiana law. The law required that passengers sit in the car assigned to their race or they could be prosecuted. Charges were filed against Plessy. Plessy filed a petition for Writ of Prohibition in the Louisi ana Supreme Court, arguing the Louisiana law violated the 14th Amendment’s Equal Protection Clause. The court found that the law was constitutional. Plessy appealed the decision to the United States Supreme Court. The Supreme Court found that Louisiana’s legalized separation

of Blacks on train cars did not violate the Equal Protection Clause. The Court explained that, while the 14th Amendment’s purpose was “undoubtedly to enforce the absolute equality of the two races before the law,” “the nature of things” meant the amendment “could not have been intended to abolish distinctions based upon color.” Despite acknowledging that absolute equality of the two races before the law was required, the Court said equality was not abso lute for Africans and their descendants, because of the “nature of things.” The Court purported to apply a reasonableness standard to the states’ police powers, defining the nature of things as the “established usages, customs and traditions of the people.” The Supreme Court decided that the constitutionality of laws challenged under the Equal Protection Clause could be mea sured by applying a reasonableness standard to the states’ police powers. The Court found Louisiana’s statute to be a reasonable regulation. These state-protected traditions of making distinctions based solely on color echo the basis for the Dred Scott decision, exclud ing Africans from the Constitution’s protection because they were property and thus inferior. Dred Scott and Plessy confirmed society’s treatment of Africans as inferior as a basis for their deci sions, excluding them from the Constitution and then diminish ing their constitutional right to absolute equality. Brown v. Board of Education In Brown v Board of Education , 354 U.S. 483 (1954), the Supreme Court held that legalized separation of Blacks from whites was inherently unequal and thus violated the Equal Protection Clause. (See the nearby sidebar that highlights the efforts of Chicagoan William R. Ming, Jr., who was among the lawyers representing the appellants.) In deciding the case, the Court considered the lives of the descendants of Africans who, though provided with a public school education, were in legally sanctioned segregated schools. The Supreme Court first found that the history of the 14th Amendment’s adoption did not include much, if any, discussion of education. It stated that, in the time since the amendment was passed, a free public education supported by general taxa tion had taken hold in many states, and the quality of education provided had improved. Also, many Negroes had achieved out standing success in the arts and sciences, business, and profes sions. The Court also observed that Plessy was its first discussion of the concept of “separate but equal” as a basis for upholding constitutionality under the 14th Amendment. With respect to education, since Plessy , the Court had con sidered six cases raising the issue of equal education in separate schools of higher learning. In those six cases, the Court found that the states’ efforts to provide an education in segregated schools of higher learning were unequal. In reaching its decisions in those cases, the Court relied on the intangibles that contribute to the educational opportunity provided, including a student’s “ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession.”

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