CBA Record September-October 2026

PRO BONO WEEK 2026 – A MORE PERFECT JUSTICE SYSTEM

Anatomy of “Absolute Equality” and the Constitution’s Broken Promise: Towards a More Perfect Justice System By Judge Sophia H. Hall (ret.)

the Constitution of the United States…” The Court found that Scott was not a member of the political community, that is, not a citizen of the United States, and, therefore, it had no jurisdiction to decide Scott’s appeal. Scott filed suit against Sandford in the United States Circuit Court in Mis souri. The evidence showed Sandford had assaulted and imprisoned Scott and his family. The jury found Sandford not guilty because Scott and his family were Sandford’s property. When Scott appealed the decision to the Supreme Court, Sandford argued that federal courts lacked jurisdiction because Scott was not a citizen. In reaching its decision that Scott was not a citizen, the Supreme Court addressed the term “equal” as applied to Africans in 1787, when the Constitution was adopted. It described the history of the treatment of Africans worldwide and in this country. That history showed that Africans were universally considered property to be bought and sold. Based on this history, the Court con cluded that Africans “were not intended to be included, under the word ‘citizens’ in the Constitution.” The Court then observed that at the time, Africans were “considered as a subordinate and infe rior class of beings, who had been subju gated by the dominant race, and whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.” To reach this conclusion, the Court also addressed the meaning of “equal” in 1776, when used in the Declaration of Independence, that “all men are created equal,” rejecting that those words were meant to include “the enslaved African race.” The Court reasoned that “if the

A bsolute Equality” was the phrase the United States Supreme Court used in Plessy v. Ferguson to describe the rights protected by the Equal Protection Clause of the 14th Amendment. But the Court found that, as commonly understood, it was not intended to apply to Blacks, and therefore, segregation was constitutional. This decision, which diluted “equality,” echoed the Court’s reasoning in Dred Scott v. Sandford . There, the Court stated that Africans and their descendants were not intended to be included in “all men are created equal” from the Declaration of Independence because Africans were not considered part of the “whole human family.” The Court addressed the meaning of equality in Brown v. Board of Education . It reversed Plessy , finding that legalized segregation in public education was inherently unequal. I revisit these foundational cases in the lives of African Americans from the perspective of my own experiences as an African American, born and reared in Chicago, and as a civil rights lawyer in the 1960s and 1970s. Their reasoning is instructive today for assessing the fairness of how courts apply the term “equal” under the equal protection clause. Dred Scott v. Sandford In 1857, in the Dred Scott decision, 60 U.S. 393 (1857), the Supreme Court discussed equality in deciding if it had jurisdiction over Scott’s appeal. The question put to the Court was, “Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by “

22 September/October 2026