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  1. Did judicial activism help African-Americans achieve civil rights?
    (from African-American History, US Supreme Court, Civil Rights Movement).

    No, judicial activism caused African-Americans to lose the civil rights guaranteed them under the Thirteenth, Fourteenth and Fifteenth Amendments of the Constitution, as well as the Civil Rights Act of 1875. The purpose of the Reconstruction amendments was to end slavery, formally extend citizenship, apply constitutional protections, and allow African-Americans (men; women didnt have suffrage yet) the right to vote.

    While the Constitution originally applied only to the federal government, the Fourteenth Amendment offered a legal means of extending US constitutional protection to the States, and provided Congress with authority to enforce the Amendments provisions through legislation. Congress demonstrated a desire to support the equalization process the States initiated by passing the Civil Rights Act of 1875.

    The Civil Rights Act of 1875 read (in part):

    “Be it enacted, That all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude.

    “…That any person who shall violate the foregoing section by denying to any citizen, except for reasons by law applicable to citizens of every race and color, and regardless of any previous condition of servitude, the full enjoyment of any of the accommodations, advantages, facilities, or privileges in said section enumerated, or by aiding or inciting such denial, shall, for every such offense, forfeit and pay the sum of five hundred dollars to the person aggrieved thereby…and shall also, for every such offense, be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than five hundred nor more than one thousand dollars, or shall be imprisoned not less than thirty days nor more than one year…”

    The Supreme Court, however, chose to construe the new amendments in an intellectually contorted way not in keeping with the intent of the Legislative branch or the States. This is the essence of judicial activism. In the Civil Rights Cases, 109 US 3 (1883), the US Supreme Court overturned the Civil Rights Act of 1875, declaring unconstitutional legislation preventing businesses and individuals from discriminating against African-Americans.

    The Waite Court held that Congress couldnt use the Fourteenth Amendment Equal Protection Clause to pass legislation mandating equal treatment under the law (as the United States finally did in the Civil Rights Act of 1964 and 1968). This narrow ruling, which was later reinforced when the Court upheld as constitutional the “separate but equal” doctrine advanced under Plessy v. Ferguson, (1896).

    These and similar decisions legally sanctioned discriminatory practices and encouraged proliferation of racist Jim Crow laws across the nation. The Warren Court formally overturned the “separate but equal” precedent set in Plessy v. Ferguson, (1896) by holding segregation unconstitutional in Brown v. Board of Education, (1954). Although this decision is often cited as an example of judicial activism, in fact, the Court was correcting bad precedents created by an earlier activist Court.

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