How the Supreme Court Stole Black Folk’s Right to Equality

Script for video:

Intro

We Black Americans have planted our home on soil alongside some fellow countryfolk who regret our very existence. Who deny our humanity. The Constitution empowers the Supreme Court to safeguard us from the effects of that malice. The land’s highest court, however, has perversely aided our subordination. And the justices have achieved this, in part, by stealing away the constitutional guarantee of equality, the Fourteenth Amendment’s Equal Protection Clause. It provides that “no state shall … deny to any person within its jurisdiction the Equal Protection of the laws.”

In my book Their Accomplices Wore Robes, I tell the story of how the Court has practically nullified that clause for Black folk. 

So many of us don’t know this history. That calls me to share it as widely as possible. The Fourteenth Amendment became part of the Constitution in 1868. By the end of this video, you will know how the Court crippled it 15 years later.

Let’s start with a question: if the justices have operated against the cause of freedom for Black people, what—or more accurately who—have they operated for?

Get the actual answer, not the one society has led you to believe.

***

I.

The vile White supremacist, the 45^th president, re-entered the White House in January 2025. His administration immediately targeted Diversity, Equity, and Inclusion programs, maligning them as discriminatory against White people. Yet, in April 2025, his administration announced a plan that, if implemented, would make the sort of discrimination claims people of color often bring under the Civil Rights Act of 1964 much harder.

Why the inconsistency?

Before him, another likeminded White House occupant, Ronald Reagan, denounced race conscious remedies to employment discrimination. Remedies like forcing a police department to hire Black officers after a court has found that the department had purposefully excluded them. “The Constitution requires colorblindness,” Reagan’s followers preached. They argued that we must regard race consciousness as immoral and illegal. Compelling a department to hire Black officers because of their Blackness, they said, violated the sacred colorblindness principle. Yet, the Reagan administration defended prosecutors intentionally striking Black people from juries. That sort of race consciousness was somehow completely moral and legal though.

The Constitution—is it colorblind or not?

 More than a century ago, President Andrew Johnson called the White House home. He vetoed the Civil Rights Act of 1866, the first federal civil rights law. Johnson reasoned that the act unfairly discriminated against White people. Congress, he griped, never enacted a law requiring that White people receive equal treatment. Yet, a year later, Johnson vetoed a bill to enfranchise Black men in Washington DC because he deemed the race unworthy of the ballot.

How is that not unfair discrimination against Black people?

After the Civil War, a new post-slavery racial caste system took root in America. A racial hierarchy enforced through law, rules, and norms that confines the Black population into a subordinate legal, political, and social status, from womb to grave.

Each of these presidents used the language of anti-discrimination to entrench that racial caste system. Their actions exemplify caste preservationism, an ideological movement that sets the primacy of the White population as an objective. Caste preservationists want to maintain racial hierarchy. They cherish the racial caste system. These are the people the Court has operated on behalf of. The Court has functioned as though Black folk are not full members of the American family.

In opposition to caste preservationism stands caste abolitionism. Caste abolitionists fight for the right to freedom from caste. We want to dismantle laws, policies, and actions that perpetuate racial hierarchy. We abhor the racial caste system.

Even more than the presidency, the Supreme Court has served as caste preservationism’s most indispensable ally.

After the Civil War, America entered a period known as Reconstruction, when the nation reconstituted the Southern state governments that had seceded.

Congress, during this time, wrote the Thirteenth, Fourteenth, and Fifteenth Amendments Not just to free the enslaved. Not just to guarantee equality. Not just to protect voting rights from race-based denials.

No, Congress worked towards a grander mission—transforming the Constitution from slavery’s mercenary into a gatekeeper of liberty.

The Supreme Court could have interpreted the Constitution as a document that crushes the pillars that support the racial caste system. The Supreme Court could have maintained that each person within our borders has an individual right to freedom from caste.

Instead, the Court chose to concoct three rules that have helped sustain an America rife with racial inequality.

On this channel, we’re going to explore each of these triple terrors that have sabotaged Black freedom. Don’t worry. They’re not complicated, and we’ll break it down.

In subsequent videos, I will tackle the anti-classification principle and the Intent Doctrine. So, subscribe and hit the alarm bell so you will get notified when I drop those videos.

But first, in this essay, we’re going to tackle the state action doctrine. It’s simple. Because of the state action doctrine, only states or a person acting on behalf of the state, can deny your Fourteenth Amendment rights, like your right to equal protection. A private individual cannot deny you equal protection. For instance, a police officer can, but a regular guy on the street cannot. And the state must do something affirmatively, like take away a right because of your race.

This is the difference between, on the one hand, the state actively harming you, and on the other hand, the state not intervening to prevent harm to you.

The state action doctrine has helped caste preservationists maintain a White-over-Black world.

One small thing though—when applied to the Fourteenth Amendment, the state action doctrine is utter nonsense. It defeats the meaning of equal protection.

Let me tell you why. Our story starts in Eutaw.

***

II.

You probably have never heard of Eutaw, Alabama. But on October 25, 1870, a race riot erupted there. A population of about two thousand, eighty percent Black, lived in the small town.

Alabama Republicans, on one side of the Greene County Courthouse, held an event. About 1,800 people, basically all Black. White speakers though. Elected politicians. On the other side, Democrats gathered for an all-White event. Much smaller. About 200.

You have to understand, in those days, Black men voted overwhelmingly for the anti-slavery, pro civil rights Republican Party. Few freedmen considered the Democratic Party, the political home of White supremacy. And the Democrats reciprocated that disdain. I think you know now that the parties are reversed.

Some of the Democrats, after their event ended, sauntered over to the Republicans. At first, they heckled the speakers. But soon thereafter, they brandished firearms and then…

A fence surrounded the courthouse. Black attendees stampeded through it. The White Democrats formed a line and shot as many as two hundred bullets at their fleeing backs. Estimates vary, but the best peg the number of deaths at four and the number of wounded between 24 to 54. All Black Republicans. This race riot fit into a larger game-plan of violence that Alabama Democrats unleashed that fall. Through this terror campaign, they took back power in the state that November.

Eight days after the Eutaw massacre, a federal prosecutor indicted some of its perpetrators under the Enforcement Act of 1870. President Ulysses Grant signed that bill into law on May 31, 1870. It allowed federal prosecutors to try private individuals who joined together to deny a person their federally protected rights. In other words, this law targeted the abuses of people not acting under state authority. It targeted private individuals.

The prosecutor’s charges accused the defendants of conspiring to interfere with both the right to peaceably assemble of the Black Republicans in attendance and the right to free speech of the Republican speakers.

Congress wrote the Enforcement Act of 1870 chiefly to dismantle the Ku Klux Klan, and other White supremacist terrorists. A vile weed, the Klan grew amid Reconstruction’s climate of dramatic social change. Through carnage, Klansmen strove to SPOIL the budding southern governments that Black and sympathetic White hands planted through biracial governance. Klansmen worked to return the South to its former rightful owners. They thought that perhaps Klan gowns would succeed where Confederate uniforms failed.

Circuit judge William B. Woods and District Court judge Richard Busteed sat behind the bench for the Eutaw massacre prosecutions.

After hearing evidence, Judge Woods worried that the Supreme Court might disfavor prosecutions of private individuals rather than state actors.

By letter, Woods asked Associate Supreme Court Justice Joseph Bradley “how the Fourteenth Amendment applied to the Eutaw rioters’ case.”

 Bradley responded: “Congress has a right, by appropriate legislation, to enforce and protect such fundamental rights, against unfriendly or insufficient State legislation. I say unfriendly or insufficient: for the XIVth Amendment not only prohibits the making or enforcing of laws which shall abridge the privileges of the citizen, but prohibits the States from denying to all persons within its jurisdiction the equal protection of the laws. Denying includes inaction as well as action. And denying the equal protection of the laws includes the omission to protect as well as the omission to pass laws for protection.”

In other words, Bradley summarily rejected the state action doctrine. And his reasoning matched the intent of the congressmen who wrote and passed the Fourteenth Amendment. Bradley explained the notion of “denying equal protection” as impacting states in two ways—forbidding states from not providing protection either through transgression or inactivity.

This conformed to centuries of thought. Let me break it down.

***

III.

Since the Magna Carta, signed by King John of England in 1215, protection had been understood to encompass the state’s affirmative obligation to protect. When people combine to forge a society for their mutual benefit, they believe the joint enterprise will protect individual rights. When a government fails to give that protection—an affirmative duty—it breaches a foundational obligation.

Late-eighteenth- and early-nineteenth-century state constitutions embraced this conception of “protection.” Take Article X of the Massachusetts constitution adopted in 1780. It stated, “each individual of the society has a right to be protected by it in the enjoyment of his life, liberty, and property according to standing laws.” The Pennsylvania constitution of 1776, similarly, articulated the right of each person “to be protected in the enjoyment of life, liberty, and property.” These constitutions show that “protection” had long embraced an affirmative duty to safeguard fundamental rights.

Pro-slavery thinkers endorsed this principle and used it for their cause. They INSISTED that Congress must affirmatively protect their right to own humans and that any inaction on this matter denied that protection.

Abolitionists later appropriated this same logic to further their anti-slavery cause. They stole pro-slavery arguments and turned them around. Abolitionists maintained that governments bore responsibility for both providing protection to ALL persons and preventing one group from trampling the rights of another. A failure at either denied equal protection. That, to them, is the level of protection the state is required to give. The drafters of the Fourteenth Amendment studied this history. And then they implanted this abolitionist doctrine in the Constitution, giving a nation the arrows to shoot for a caste-less society.

And that’s why the same Congressmen who wrote the Fourteenth Amendment wrote the 1870 Enforcement Act. The state action doctrine? They never supported it. They thought they could legislate directly against private individuals. And they rejected that they were limited to correcting state abuses.

When congressional Republicans wrote the Fourteenth Amendment, they most feared private individuals trampling upon the freed people’s rights. They did not legislate blindly. Harrowing reports from the South poured into Capitol Hill. Private individuals were burning, looting, killing. Private individuals were preventing the formerly enslaved population from actually experiencing their freedom. The actions of the state were a secondary fear. And the Republican congressmen wrote the Fourteenth Amendment believing they were empowering themselves to attack the greatest source of their angst. To attack the actual problem.

I want to put a fine point on it for you: The state action doctrine curtails the right to equal protection, and it should not exist. And it would not exist in an America that adopted caste abolitionism, an America that sought to create a casteless society.

 Instead, we have a Supreme Court that has, time and again, aided the cause of caste preservationism. As the black robes did less than a decade-and-a-half after the Eutaw massacre.

If this video has taught you something, give it a like and consider subscribing. Thanks!

***

IV.

In an 1883 decision known as the Civil Rights Cases, the Supreme Court INSTALLED the state action doctrine.

And the justice who wrote the opinion?

None other than Justice Joseph Bradley.

Can you believe it?

In 1870, Bradley explained why the state action doctrine held no validity. Then 13 years later, he crafted the words that drained the Equal Protection Clause of power.

The Civil Rights Cases concerned the tales of six Black people who faced denials of service on account of their skin color.

On October 10, 1875, Bird Gee, a thirty-year-old Black farm laborer, sat down to eat at a hotel breakfast table in Hiawatha, Kansas. Allen McCowan, a White man, complained to Murray Stanley, the hotel owner’s son. Stanley asked Gee to leave. Gee refused and Stanley forcibly removed him.

On January 4, 1876, George M. Tyler attempted to enter the dress circle, prime seating reserved for White patrons, at San Francisco’s Maguire’s Theatre. A White doorkeeper, Michael Ryan, refused Tyler on account of race.

On May 22, 1876, W. H. R. Agee, because he was Black, was denied a room at Samuel Nichols’s inn in Jefferson City, Missouri.

On April 21, 1879, a Black woman, M. L. Porter, who had bought a first-class ticket to travel to Lebanon, Tennessee, tried to enter the ladies’ car on a Nashville, Chattanooga, and St. Louis Railroad train. But James Hamilton, the conductor, relegated her to the smoking car.

On November 22, 1879, William R. Davis Jr., a twenty-six-year-old Black man, went to Manhattan’s Grand Opera House, and the doorkeepep Samuel Singleton, said his ticket was “no good.” A policeman who tried to escort Davis off the property told Davis that opera house managers did not admit Black people. “Perhaps the managers do not,” Davis replied. “But the laws of the country [do].”

The story of the sixth case is fascinating and enraging.

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V.

At ten minutes past three in the morning of May 22, 1879, Sallie Robinson, a twenty-eight-year-old attractive Black woman waiting at the three-story train depot in Grand Junction, Tennessee, boarded a Memphis and Charleston Railroad Company train with a light-complexioned man with light hair and light blue eyes. The two had bought the first-class tickets to reach their destination, Lynchburg, Virginia. As Robinson and her companion attempted to access the ladies’ car, reserved for women with first-class tickets and their male escorts, the train’s conductor, C. W. Reagin, blocked the door. Reagin grabbed her arm, bruising it, and denied their entrance.

You “must go in the other car,” Reagin demanded, pointing to the smoking car.

They complied but wanted what they had purchased. When the conductor sat down, the companion approached Reagin.

“Why do you people try to force yourselves in that car?” Reagin asked.

They had bought first-class tickets, the companion responded, which entitled their admission into the ladies’ car. “[S]he is my aunt,” he added.

“She is your aunt—then you are colored too?” replied Reagin.

“Yes, she is my aunt, and I am a colored man,” said Joseph Robinson.

“Then you can take her into the ladies’ car but wait till we stop at the first station.”

Reagin, a longtime conductor, believed from experience that young attractive Black women accompanied by White men often traveled for illicit purposes and that such White men frequently disturbed the peace of ladies’ cars. The Robinsons, upset, detrained at Knoxville, spending days there to register complaints with railroad company officials. Unable to address anyone with power, Joseph Robinson penned a letter to the railroad’s superintendent. “We wish to give the road no trouble, but do think we are enttitle’ [sic] to better treatment while passing over your line, and if the managers cannot guarantee and see that we get better treatment, we will resort to other authorities. Let me hear from you immediately on this matter.”

Ultimately Sallie sued the Memphis and Charleston Railroad Company for a violation of the Civil Rights Act of 1875, seeking $500 in damages.

That law required equal accommodations in public spaces like inns, public conveyances on land or water, and places of amusement like theaters. Violators faced fines and misdemeanor charges. Congress passed the law to enforce Black people’s right to receive equal protection. Sallie Robinson’s case and the other five reached the Supreme Court to settle uncertainty among the lower federal courts. Many judges wondered how the law operated. Wondered whether it was even constitutional. The Supreme Court had not spoken.

Sallie Robinson and her nephew faced a common indignity for Black folk traveling throughout the South, even after the passage of the 1875 Act. But actually—segregation improved upon what Black folk typically suffered through directly following the end of Civil War.

Exclusion.

Yes—segregation was not a downgrade. It was an upgrade from no service at all. That upgrade, nonetheless, required that Black folk withstand state-permitted indignity basically everywhere. And they were tired of it and wanted the country to simply enforce the law Congress had passed.

The jury ultimately found for the railroad company and against Sallie Robinson. The judge ordered her to pay the company’s attorney fees plus twenty dollars. She appealed to the Supreme Court.

And the justices, in response, wrote one of the opinions that most damaged the cause of Black freedom from caste.

***

VI.

In these six Civil Rights Act cases, private individuals denied Black people service in violation of the Civil Rights Act of 1875.

These cases tasked the justices with answering a simple question: Did the equal accommodation provisions of the Civil Rights Act of 1875 violate the Constitution? The Court answered yes.

In his written opinion, Justice Bradley contended that only the state, acting through its laws, courts, or state officers, can violate a person’s right to equal protection. And he maintained that the state bore no obligation to protect Black folk from racial oppression it did not perpetrate, even as private individuals perpetuated it. Only a state legislature, not Congress, could legally require equal treatment in, for example, theaters. Or trains. Or hotels. Congress could only pass laws to correct state behavior because only states could deny equal protection.

And the equal accommodation provisions of the Civil Rights Act of 1875, Bradley insisted, were not examples of corrective legislation. That sort of legislation would have limited itself to state-perpetrated wrongs. For example, another section of the 1875 Act forbade states from denying someone the right to sit on a jury on account of race. And the Court upheld it.

In contrast, the equal accommodation sections of the 1875 act forced private businesses and individuals to either affirmatively treat all people equally or risk criminal sanction, regardless of whether the state required unequal treatment.

A decade before, Bradley explained to Judge Woods that “Denying includes inaction as well as action. And denying the equal protection of the laws includes the omission to protect as well as the omission to pass laws for protection.” In truth, Congress, through the Civil Rights Act of 1875, did pass corrective legislation—the act corrected the inaction of the states. Bradley nurtured an interpretation of the Fourteenth Amendment, only to orphan it later.

I know you’re wondering: Why did Bradley suddenly change his legal analysis?

Politics.

***

VII.

Bradley was a diehard Republican. In 1870, when Bradley wrote his Eutaw massacre memo to Judge Woods, Republicans considered protecting Black rights as furthering party interests. Early post-war election results had showed Republicans that they lacked a pulse in southern contests without its Black heartbeat. Republican judges, therefore, tended to defend the freed people’s rights. Siding with caste abolitionism seemed to be in Republicans’ political interests. By 1883, however, Republicans thought that their support for Black rights undermined their goal of winning elections. Being viewed as the party for Black rights, they concluded, was costing them White votes. Therefore, they abandoned Black people.

And Republican Supreme Court justices interpreted the Constitution as the caste preservationists their party was trying to earn favor with wanted.

The Court should have simply adopted Justice Bradley’s original conception of equal protection, one that rejected the state action doctrine. Technically, a private individual cannot deny you your right to equal protection. But a private individual can deny you the opportunity to enjoy your right to equal protection. And when that occurs, the state has not protected you. Alabama failed to protect the Black men killed during the Eutaw massacre. And the Black victims in The Civil Rights Cases were denied equal protection by their states. Thus, the federal government had the opportunity—no, the federal government had the duty to step in and give the protection that those states did not.

One justice, Justice John Marshall Harlan, disagreed with the majority opinion and penned a blistering dissent. He articulated many incisive points, one more profound than the rest. He argued that Supreme Court should have allowed Congress to wield its power to protect Black people’s freedom as much as the Court once allowed Congress to wield its power to protect slaveowner’s right to own Black people.

“I insist that the national legislature may,” Harlan wrote, “without transcending the limits of the Constitution, do for human liberty and the fundamental rights of American citizenship, what it did, with the sanction of this court, for the protection of slavery and the rights of the masters of fugitive slaves.”

The Supreme Court did more to protect the rights of slaveowners than Black people’s right to full freedom. Just as it is now more willing to protect caste preservationists’ desire to maintain a racial caste system than protect each individual’s right to freedom from caste.

***

VIII.

The era of caste preservationism reigns in America. When has it not?  We the People who want a country that truly lives up to its stated ideals, in response, must embrace caste abolitionism and fight for an anticaste Constitution. That means building a political movement that aims to end the state action doctrine.

America has a racial caste system. Therefore, this country, every day, is denying Black folk equal protection of the laws. In response, Congress should pass strong legislation to destroy that system. This legislation would target the abuses of states and private individuals. But Congress cannot enact this legislation because of the state action doctrine. This is why caste

In our next video, on the anti-classification principle, we will visit a scene from one of the most shameful chapters of twentieth-century America. Subscribe to get notified when it drops.

In the meantime, watch this video on the Introduction to Their Accomplices Wore Robes. Link to purchase the book is in the pinned comment and description.

Stay Brave.