Judicial Review and Racial Minorities: The U.S. Case

Abstract

This essay examines U.S. policy toward African-Americans, Asian residents of the U.S. and Native Americans in the first four decades after the equal protection clause was added to the U.S.Constitution in an attempt to answer the question, 'Did the institution of judicial review at the national level in fact render the U.S. Supreme Court more protective than were the electorally responsive branches of the national government toward the rights of racial minorities mistreated by local majorities (specifically, blacks, Asians, and Native Americans)?' It concludes that it is not correct to say, as many scholars do, that the U.S. Supreme Court buried Reconstruction.

Reconstruction died because of a century-long campaign of intermittent violent insurgency in the South, launched by whites to subjugate black people. Eventually, significant numbers of northerners either came to agree that the South was justified or gave up opposing the intense resistance because it was politically and financially costly not to do so. The political branches turned their backs on Reconstruction.

Similarly, the political branches drove the oppressive policies toward Native Americans and Asians (and were in turn driven by local or state-level political forces, as with oppression of blacks in the South). Although the Court would occasionally step in against administrators for inappropriate mistreatment (e.g., the Crow Dog or the Wong Kim Ark cases), it was loathe (perhaps understandably) to interfere with policy that combined Congressional and Presidential will toward these foreign or quasi-foreign peoples. In sum, the Court was not the oppressor of racial minorities in the 1865-1908 period, nor was it, except on rare occasions, their savior. This finding would perhaps disappoint Alexander Hamilton (himself a founding member of the NY Manumission Society), but it should perhaps not surprise us, in light of the fact that elected branches are the ones that select and approve nominations to the Supreme Court.