The Supreme Court's Failure To Protect Blacks' Rights After the Civil War, the United States seemed poised to grant equal rights to blacks. But the Supreme Court's rulings in the late 19th century kept blacks segregated for decades, says constitutional scholar Lawrence Goldstone.
NPR logo

The Supreme Court's Failure To Protect Blacks' Rights

  • Download
  • <iframe src="" width="100%" height="290" frameborder="0" scrolling="no" title="NPR embedded audio player">
  • Transcript
The Supreme Court's Failure To Protect Blacks' Rights

The Supreme Court's Failure To Protect Blacks' Rights

  • Download
  • <iframe src="" width="100%" height="290" frameborder="0" scrolling="no" title="NPR embedded audio player">
  • Transcript


This is FRESH AIR. I'm Dave Davies, filling in, today, for Terry Gross.

We're accustomed to sharp conflicts surrounding the U.S. Supreme Court: political battles over nominees and policy debates over its rulings. Our guest, Lawrence Goldstone, looks back at another period in history, when he says a series of Supreme Court rulings undermined social progress in the country for decades.

Goldstone writes about the post-Civil War era, when union troops occupied the South, and four million former slaves were looking for social equality and economic opportunity. It wasn't clear, initially, whether they would enjoy full-fledged citizenship or would be subjugated by the white population.

In the 1860s, it was the Republican Party in Washington, the home of former abolitionists, that sought to expand the role of the federal government and grant legal rights and social equality to blacks in the South.

The Democrats of the day had broad support among white Southerners and conservatives in the North. Abraham Lincoln had been assassinated, and his vice president, former Democrat, Andrew Johnson, occupied the White House.

A bloc of Republican congressmen, then dubbed radical Republicans, managed to enact a series of constitutional amendments and reconstruction acts which granted legal equality to former slaves and gave them access to federal courts if their rights were violated. Goldstone says that in a series of rulings, the Supreme Court undermined those laws and laid the basis for years of lynchings and Jim Crow rule in the South.

Lawrence Goldstone has written 12 books of fiction and non-fiction, including two previous books on constitutional law. His new book is called "Inherently Unequal: The Betrayal of Equal Rights by the Supreme Court, 1865-1903."

Well, Lawrence Goldstone, welcome to FRESH AIR. Describe the political dynamics of the day. Republicans in Congress, referred to as radical Republicans at the time, wanted to remake the social structure and civil rights of the South. Who was their opposition?

Mr. LAWRENCE GOLDSTONE (Author, "Inherently Unequal: The Betrayal of Equal Rights by the Supreme Court, 1865-1903"): Their opposition, both, were Democrats, who were the opposition party, and Andrew Johnson was a Democrat. Lincoln, in an effort to be a healer in his second term, actually chose, as a running mate, someone from the other party.

But many of the Republicans were not radicals but far more moderate. What the radical Republicans wanted was probably the largest experiment in social engineering ever undertaken. They wanted the federal government to take these four million newly freed slaves and integrate them fully into society virtually immediately.

They wanted equal access to theaters and to places of worship and to cemeteries and to schools. They wanted full voting rights. They wanted service on juries. They wanted these - they were called freedmen - to be able to serve in government.

They understood that these newly freed slaves were not the most sophisticated political body, but they believed that only when full integration, full, forced integration, succeeded, could the country be the United States that they believed the country had been founded to be.

What the radical Republicans tried to do was to remake the country, from the central government out.

DAVIES: And between the end of the war and I guess 1875, there were a series of federal actions. There was the 14th and 15th Amendments to the Constitution. There was the Civil Rights Act of 1866 and one again in 1875, which essentially, if I'm right, conferred upon former slaves these rights: the rights to vote, the right to nondiscrimination in public accommodation, et cetera.

Now, what was happening on the ground in the South while these laws and amendments were being enacted?

Mr. GOLDSTONE: Well, there were two reconstruction acts, and what they did was set up military districts in the South, five military districts, each run by a general.

And what the army did was to move in to the Southern states, obviously mostly in the larger cities, and attempt to enforce the guarantees of the 14th Amendment, which had then been codified in the various enforcement acts and the reconstruction acts that Congress had passed.

DAVIES: And the guarantees of the 14th Amendment were what?

Mr. GOLDSTONE: Due process of law, which is a very vague term, as we came to see later, and could be applied in a number of different ways, and equal protection of the laws and also conferred citizenship on anyone born in the United States.

DAVIES: And then what was happening among whites as these laws were enacted, which conferred these new rights upon former slaves, and a military structure was imposed to govern their territories?

Mr. GOLDSTONE: Well, when a foreign army, which was how they were viewed by many whites, is sent in to your society to enforce a new code of justice and to enfranchise people who had been disenfranchised and take the people who had been running things and shunt them off to the side, the resentments among the white population were intense.

And these resentments had legal implications, the rise of the Democratic Party, a very strong emphasis on getting the army out and getting states' rights restored, and then illegal implications, which was the rise of terrorist groups like the Ku Klux Klan and a number of others.

So what was happening on the ground was if you were in a city, if you were in a place where the army had power and had a force, blacks were registering to vote, they were being elected to state and local and even national office. Equal rights were being enforced. Schooling was made more broad, and in many cases, integrated.

But if you were out in the countryside, the white power structure remained pretty much intact because the army couldn't be everywhere.

DAVIES: So it was clear that there would be legal challenges to the reconstruction acts, which gave new legal rights to freed slaves and altered the social structure in the South. And it's interesting, as you describe this, in some of the early challenges, the Supreme Court actually upheld federal authority, right?

Mr. GOLDSTONE: Yes. They, the Supreme Court moved around quite a bit. There was enormous political pressure coming from the radical Republicans in Congress. When the court issued adverse rulings, there was an outcry to the extent that many of the justices feared impeachment, which is an almost impossible thing to achieve in normal times.

So the court in some cases upheld the reconstruction acts. In most cases, though, they avoided the issue by denying jurisdiction.

In fact, there was a case called Texas versus White, which was only decided after the issue had kind of become moot, where the court more or less admitted that the reconstruction acts were unconstitutional or might have been unconstitutional because the Southern states had never really seceded because secession was illegal.

So it was a very strange time for the court, which didn't really set itself until the 1870s.

DAVIES: Right. So you had the court kind of letting the reconstruction acts stand but essentially on technical grounds, without ever getting to the core issues so much.


DAVIES: Ulysses S. Grant is elected president in 1868, and one of the interesting things, in reading your book, was how much more turnover there was in the Supreme Court than we're used to seeing in modern times. I mean, it seems that every two or three years, a justice would die or depart. Abraham Lincoln, Andrew Johnson, Grant all got a number of appointees to the court. And that gave them, you know, in effect the opportunity to put their own imprimatur on the body.

In general, what was the quality of the appointees, say from Grant on?

Mr. GOLDSTONE: I suppose that depends who you ask. As we moved later into the 19th century, most of the appointees had corporate law background. Chief Justice Morrison Waite, for example, was a corporate lawyer, and he was Grant's third choice. And the nation described him as firmly in the first rank of second-rank lawyers.

(Soundbite of laughter)

Mr. GOLDSTONE: And his successor, Melville Fuller, was described as the fifth-best lawyer in Chicago, which was meant to be neither a compliment to Fuller nor the city that he came from.

So there were a lot of appointments which, when we look back, seem to have more to do with a political philosophy than with excellence on the bench or brilliant legal analysis, but I'm not sure that that is very different from the rest of our history.

And there were some very strong and very bright people and very able people also appointed. John Marshall Harlan was appointed in 1877, and he proved to be one of the great justices in Supreme Court history.

DAVIES: We're speaking with Lawrence Goldstone. His new book is called "Inherently Unequal." We'll talk more after a short break. This is FRESH AIR.

(Soundbite of music)

DAVIES: If you're just joining us, our guest is author Lawrence Goldstone. He's written a new book about Supreme Court decisions after the Civil War, which enabled Jim Crow laws. It's called "Inherently Unequal."

Now, there was an important test of the reconstruction acts that began in 1873, in a horrific incident on Easter Sunday in the little town of Colfax, Louisiana. First of all, what happened?

Mr. GOLDSTONE: Well, Colfax was not particularly accessible. This was one of the towns I referred to when I said the army really couldn't get there. There was no real military presence.

It arose out of a disputed gubernatorial election between a Democrat, who was a decorated Confederate war veteran, and a Republican who was a carpetbagger. The election was clearly fraudulent on both sides.

It was unclear who won. Both, in fact, were declared the winner at certain junctures. And then the issue was thrown the Louisiana courts, which were dominated by Republicans, and the majority on the court voted to put the man in their party in the governorship.

When the Republican was declared the winner, they kind of kicked the white people out who were running the town. And the whites were deeply resentful and came back in force, 250 men on horseback, many of them members of the Klan and other terrorist groups, dragging a six-pound cannon behind them.

Move into Colfax, Louisiana, and go to the center of the town, where 150 African-Americans, many in the militia, had created barricades, just thrown-up barricades and dug a ditch.

Shooting started very quickly. It was clear that the blacks had no chance, and they gave up. The white - the 250 white invaders, gathered up all the weapons from their defeated captors and then proceeded to slaughter them. Probably 150 black men were stabbed or shot or drowned, many trying to run away and hide in the woods.

DAVIES: So what action then was taken against some of the whites involved in these murders?

Mr. GOLDSTONE: A hundred of the white invaders were brought to trial in federal court on the grounds of violating the African-Americans' right to peaceful assembly. They couldn't be brought up on a murder charge because that is a state crime. So they were brought up on the federal charge of denying the right, a constitutional right that is in the Bill of Rights.

And of the 100 who were indicted, three were convicted. And these three, one of whom was a man named Cruikshank, who was a nonentity, as far as anyone could tell, appealed to the Supreme Court on the basis that the Civil Rights of 1875, which seemed to incorporate the Bill of Rights into state law, into the actions of people within states, was unconstitutional.

The court, under Morrison Waite, the first rank of second-rank lawyers -this was his first major case - ruled that no, the Bill of Rights does not apply to the states. They took a very narrow view of the 14th Amendment.

If it is not specifically delineated in the 14th Amendment, it does not control the actions of private people. There was no such thing in this case as implied rights.

And as a result, because these actions were not the actions of the state and because, incredibly, Waite ruled that despite the fact that 250 had slaughtered 100 black men, there was no proof that there was any racial motivation, Waite ruled in favor of the defendants, and the three white men went free.

So for one of the most horrific crimes in American history, not a single person was punished.

DAVIES: So one of the legal issues here was whether these men could be tried in a federal court, as opposed to a state court. And you make the point in the book that before the Civil War, the federal government had far less reach into our lives. It was unusual for people to be brought to federal court.

But among the provisions of the reconstruction acts were that these violations of rights would be subject to justice in a federal court. That was denied here. So these guys go free.

What was the practical effect of this ruling?

Mr. GOLDSTONE: Well, once the justices had said the 14th Amendment applies only to the actions of a state, that the actions of private people are not covered by the amendment, then all people had to do in the South was to behave as private people.

There was another case a few years later, which was called the Ku Klux Klan case, where, in the enforcement act, one of the enforcement acts, it said people couldn't go in disguise on public roads, you know, to violate the rights of other people, and the court again ruled, and these people were brought up in federal court after beating a prisoner to death, the court again ruled that private people were exempt from the protections guaranteed in the 14th Amendment.

So if it wasn't a state law - and then amazingly, in a series of rulings, the court ruled that the state had to announce that it was being discriminatory. Implied discrimination, effective discrimination, de facto discrimination - that wasn't covered, either. So this slow strangulation of the 14th Amendment rights for black people created an atmosphere where whites understood that all they had to do was not announce that they were discriminating, and they could do pretty much anything they wanted, and they did.

DAVIES: Now, in a case where 250 whites surround and slaughter, you know, more than 100 blacks, and then the Supreme Court goes through these, you know, contorted legal arguments to then excuse them from justice in the federal courts, what was the reaction in northern newspapers, in Northern public opinion to these actions by the court?

Mr. GOLDSTONE: There was cheering. Although the Colfax massacre, or the Colfax riot, depending on what your political point of view, was - took place in 1873, the ruling of the court did not come down until 1876, by which time the Civil Rights Act of 1875 had been passed, and this mandated equal accommodation in places where most white people didn't want it: theaters, places of amusement, hotels, conveyances on land or water.

And the editorial outrage against the Civil Right Act of 1875, which was kind of a valedictory of the radical Republicans, was enormous. The New York Times wrote that the passage of the Civil Rights Act of 1875 set back the art of governing men 200 years.

So the resentment against forced integration, in the North, as well as the South, made the United States versus Cruikshank decision, which was the Colfax decision, very popular because what the court was saying was: The federal government has no reach, had limited reach. Get the federal government out of the business of telling people and states what to do.

So it was an extremely popular decision. There was some dissent. But the Colfax massacre, although decried as an act, was applauded as a Supreme Court decision.

DAVIES: So there was really little appetite, even in the North, for this extensive federal effort to remake the social structure of the South.

Mr. GOLDSTONE: Remarkably little appetite, and it faded quickly. It was very expensive. You had soldiers. The army was - had to obviously remain staffed up, to have this occupying army have any impact. And the notion of being forced to sit next to a black person at a restaurant in New York was abhorrent to most whites in America.

And as a result, by the way, the Democratic Party in the North began to make enormous gains also. So it was clearly something where the population of the country had moved against this idea of equal rights, and the court, with its series of decisions, which neutered, certainly, the Civil Rights Act of 1875 and eventually declared it unconstitutional, was very, very popular among a vast segment of the American society.

DAVIES: All right. So in general, in the body politic, there wasn't great support for integration and for reconstruction in the South. But you also write about intellectual currents, which affected the thinking of the educated and legal scholars, in particular Darwinism and its application to social relations. What - explain what was going on.

Mr. GOLDSTONE: What happened was a number of thinkers took Darwin's theory of natural selection, which as most people know, is a slow process of individual mutation, and applied it to society as a whole.

Herbert Spencer, who was an Englishman, was the first major theorist of social Darwinism. In fact, he was the one who coined survival of the fittest, not Darwin.

And what social Darwinism said was: If you were doing well in society, it was because you deserved to do well, you were more fit. If you were doing poorly, it was because you deserved to do poorly.

Well, white people were doing well, by and large, and black people were doing poorly, by and large. So if you were a proponent of social Darwinism, as John D. Rockefeller was, as Andrew Carnegie was, as Oliver Wendell Holmes was, you believed that the racial structure of the country reflected, not a series of discriminatory laws, but simply the way it was shaking out according to the natural evolution of the species.

And if you believed that, the last thing you wanted was a series of progressive laws forcing integration, forcing this inferior group into a position where they become more dominant in society, because that waters down society for everyone.

Now, this is a very, very convenient theory for the rich and was - when Herbert Spencer came to the United States, Andrew Carnegie dealt with him like a coming messiah, as did John D. Rockefeller.

DAVIES: Lawrence Goldstone's new book is called "Inherently Unequal." He'll be back in the second half of the show. I'm Dave Davies, and this is FRESH AIR.

(Soundbite of music)

DAVIES: This is FRESH AIR. I'm Dave Davies, in for Terry Gross, back with writer Lawrence Goldstone. His new book "Inherently Unequal," argues that a series of Supreme Court rulings in the post-Civil War era effectively revoked laws and constitutional amendments that granted equal rights and the protection of federal courts to former slaves. The rulings, Goldstone said, paved the way for decades of lynchings and Jim Crow rule in the South. At the time, the Republican Party favored the extension of legal rights to African-Americans. The Democratic Party was more conservative and supported by white Southerners.

We've talked about how the political climate was not particularly accommodating to, you know, rights of freed slaves in the South, and how there were intellectual occurrence which justified racism. In terms of what was actually happening on the ground, the presidential election of 1876 was critical, right? This was the case where Republican Rutherford Hayes runs against Democrat Samuel Tilden. Tilden wins the popular vote, but the electoral vote depends upon disputed outcomes in three Southern states: Louisiana, South Carolina and Florida. What happens?

(Soundbite of laughter)

Mr. GOLDSTONE: Because of the dispute - now, most historians and most people at the time thought Tilden had won. There were 20 disputed votes, 19 of them from the three Southern states you mentioned, and one, I believe, in Oregon. In order for Hayes to win, he had to get all 20. They set up commissions. They studied, and eventually these commissions were prepared to throw the election to Hayes.

In order to resolve what promised to be an enormous constitutional crisis and a - potentially, a tinderbox which could lead to a second Civil War, people - armed people were massing - the federal government appointed a 15-man commission. There were seven Republicans who were going to vote for Hayes. There were seven Democrats who were going to vote for Tilden. That left the 15th member. And to fill that slot, newly appointed - a recently appointed justice, Joseph Philo Bradley. And Bradley was a Republican, and proceeded to pick the man of his party.

DAVIES: But wasn't there, essentially, an understanding that if Hayes, the Republican, were given the White House in this disputed election, that, in effect, the federal Reconstruction effort in the South would be abandoned?

Mr. GOLDSTONE: Yes. What happened was when it appeared that Hayes would win, the Tilden forces were, of course, furious, and the threat of armed conflict became larger. So what the Hayes people did was agree to - if the Tilden people were willing to withdraw their objections, which they subsequently did, the Hayes administration, who had - and Hayes had run on a platform of, more or less, equal rights he was a Republican agreed to withdraw the Army from the South, end the Reconstruction Act, dissolve these five military districts, pull the Army out and let the Southern states, in effect, govern themselves. And that is what happened.

DAVIES: So, in effect you have the kind of the federal muscle withdrawing from the South, and then the court, as you write, providing a legal basis for all kinds of discrimination against African-Americans.

I thought we would discuss just one more case. This was a case that challenged all-white juries in the South. The Rives case? Am I pronouncing it correctly?


DAVIES: Yeah. Tell us what happened there.

Mr. GOLDSTONE: Well, there were two cases that came down at the same time, this very interesting pair. You can't really separate them. The first was a man named Taylor Strauder, who was a black man, who was accused of murdering his wife, which he freely admitted to, and moreover, said he was justified in killing her because his wife had been sort of obsessively unfaithful, sleeping with almost every man in town and bringing shame upon her husband.

The white power structure in West Virginia kind of agreed with him, because they put him in jail, but didn't bring him to trial. They only brought him to trial when his lawyers petitioned to have him released. He was convicted by an all-white jury and sentenced to hang. His lawyers appealed to the West Virginia Supreme Court and said, hey. Strauder was entitled to kill his wife. The only reason he was convicted was because West Virginia juries were too bigoted to acquit him, and West Virginia juries were all-white by statute. This was a statutory prohibition on African-Americans sitting on juries.

The second case, the Rives case, involved two African-American brothers who had killed a white man, and they were also to be tried by an all-white jury in Virginia, except this all-white jury was white not because the statute said so, but because of all the little contrivances that the white power structure had put in to keep black people off juries.

It was a federal judge named Alexander Rives who wanted to impose equal rights, and he took the brothers in custody and said he was removing the case to federal court. Virginia sued. The two cases came down one after the other. In Strauder, the court ruled that Strauder had, in fact, been discriminated against because the West Virginia statute said no blacks can be on juries.

In Rives, however, and they were the opinion was written by the same justice. They said there was no discrimination in the Virginia law because nothing specific said that blacks couldn't serve on juries. There was no way to prove racial discrimination. The fact that there were no black people on juries in Virginia was something that the court evidently considered coincidental.

So what Strauder said was if you announce that you are going to discriminate, that is in violation of the 14th and 15th Amendment. And Rives, the very next case said if you don't denounce that you are discriminating, you can do pretty much anything you want.

DAVIES: And so what was the impact of that?

Mr. GOLDSTONE: Well, the impact, of course, was the Southern states understood that all they had to do was to draft laws in a circuitous sort of way, and they would pass muster with the federal court system. And this eventually - after the Civil Rights Act of 1875, was declared unconstitutional - resulted in every single Southern state redrafting their constitutions, white, Democratic majorities in these legislatures redrafting these constitutions in such a way that blacks were absolutely and completely disenfranchised.

I'll give you one example. In Louisiana in 1897, there were 130 African 130,000, excuse me - African-Americans registered to vote. A new Constitution was passed in 1898. It was not sent to the people for ratification, but just passed by the legislature. Two years after that, by 1900, that 130,000 African-American voting block had been reduced to 5,000.

DAVIES: You write that there were other decisions on issues like public accommodation, whether somebody could ride on a streetcar. There were issues about blacks getting on voting rolls. And in case after case, the Supreme Court found some technical grounds for not enforcing bans on discrimination. Taking the broad picture overall, what was the cumulative impact of all of these decisions on social relations in the South on the lot of the freed slaves?

Mr. GOLDSTONE: Well, all you have to do is to look at the rise of Jim Crow and the ability of Southern state governments to segregate, to discriminate, to imprison without trial, to beat to death, to lynch without anyone ever being brought to justice. And if you look back and you say, well, how could this be possible with these three - equal rights amendments on the books, it was only possible because the court had very slowly chipped away at those amendments. Because the court can't declare a constitutional amendment unconstitutional. It's in the Constitution.

The only way to make it ineffective, to render it moot, is to narrowly define the amendment, and do so in such a way as to say that it doesn't, in fact, cover this aspect of equal rights or that aspect of equal rights. No, yes, that you can't infringe the right of a black man to vote, but if a black man somehow can't get to vote, that's beyond the range of the amendment or the federal government to do anything about it

DAVIES: Our guest is Lawrence Goldstone. His new book is "Inherently Unequal."

We'll talk more after a short break. This is FRESH AIR.

(Soundbite of music)

DAVIES: If you're just joining us, our guest is author Lawrence Goldstone. He's written a new book about Supreme Court decisions after the Civil War, which enabled Jim Crow laws. It's called "Inherently Unequal."

When the court was rendering these decisions which, in effect empowered Southern whites too brutally, you know, subjugate former slaves, what do we know about the personal beliefs and motivations of the justices who crafted these decisions? What were they up to?

Mr. GOLDSTONE: Many of them - you know, it's easy to say, well, they were all racists. And many of them were, by today's definition. Most were not any more racist than the vast majority of Americans. Curiously, most of the justices, or many of the justices, were - that - who were appointed came from New England, known for an abolitionist stance. Either they were from New England or had been born in New England.

Their views, whether or not they were actually social Darwinists, when they wrote their private papers, it was clear that they viewed black Americans as a somehow inferior race. It wasn't that they weren't human, but they were kind of a different sort of human. And while they deserved certainly not to be slaves and they deserved certain rights - they should be able to work and enter into contracts - the notion of having them on an equal plane with the white race was anathema.

Even John Marshall Harlan, who wrote the famous dissents in the civil rights case and the equal - separate-but-equal case, Plessy versus Ferguson - said in one of those opinions that the white race dominated, and he expected it to continue to do so. So the racial views of the justices were pretty much the same as the racial views of most white Americans.

DAVIES: You know, as I read the story, there's a sense of inevitability to it. I mean, when you look at, you know, the determined opposition of Southern whites and the indifference of Northern whites to the efforts to grant equal rights for former slaves, this just seems like it was going to happen.

And I wonder if, you know, if there had been five justices on the Supreme Court who were guided by conscience and thought with legal clarity and had the gumption to rule that these laws meant what they said they did, that, you know, access to due process of law, access to the right to vote, to public accommodation were to be granted and that victims of discrimination could get effective relief in federal courts -if all that had happened and the court had ruled for - ruled in that direction, despite all of the political forces going the other way, what do you think would've happened?

Mr. GOLDSTONE: Well, of course, you can't know for sure. But let's look at Brown versus Board of Education. 1954, the country was probably somewhat less racist, but it wasn't completely not a racist country. We still had the dominant Democratic Party. Most of congressional committees were run by long-term Southern Democratic either senators or representatives. Brown was not particularly popular in places in the North, as well as in the South, and initially, it didn't have a lot of impact. It - but it was the beginning of a process that not only led to school integration, but led to a rethinking by white America about black America at least a lot of white America.

So I don't know that the court could, by itself, have changed the course of white thinking. But it could certainly have made an effort to change the course of white law, and in doing so, may have helped create an atmosphere where white Americans actually started getting used to black people and started getting used to having black people in the workplace and started getting used to having black people in the same restaurant or in the same theater. And my sense is that no, maybe it wouldn't have been better. But when you look at Jim Crow and you look at the lynchings and the burnings and the horrible things that happened, it hardly could've been worse.

DAVIES: You know, there's a lot of talk today about originalism, about, you know, adhering to the purest beliefs of the founders. To what extent were the rulings that enabled the Jim Crow laws similar, hearkening to that notion?

Mr. GOLDSTONE: They were eerily similar. Every single ruling by the court that limited or annulled a provision of the constitutional amendments, or laws that were passed to give teeth to those amendments, was done on the basis of a strict reading of the Constitution. This is what the words say. This is what it means.

So this conflict between textualism - what it said or what you thought it said - and a notion that we are a nation of fundamental justice and not a notion that parses subordinate clauses, that conflict was played out in the late 19th century, and it's being played out today. And what you have in this period is a series of decisions that are repugnant to most Americans, but they were rendered on the basis of strict construction.

DAVIES: There's one other question about this notion of originalism. What - we talked about how the notion that you can go back to the original intent of the founders of the Constitution may not be a useful way to look at law because it has to be flexible, and all of the situations and challenges that the Republic would confront could not have been anticipated by the framers.

That said, as you've looked at, you know, legal history, are there not times when there's a value to going back to the original words? Because after all, laws are words, words have meaning. And are there cases where there's a value to saying have we not created some kind of legal superstructure that really takes us far beyond the intent of the original laws?

Mr. GOLDSTONE: I agree completely. This is a continuum. This isn't a question of two absolutes. This isn't a question of you either follow the Constitution absolutely, positively, immutably, or you throw the Constitution away and just decide what you think. There are cases - most cases, of course - where a justice will go to the Constitution or another statute and say this is what the statute means.

My problem is this people anointing themselves as the only authority. In fact, every judge is an activist. They are doing their best - we hope they are doing their best - to interpret the law in the way they think is the most objective. Now, in practice, of course, it tends to be more subjective. But the idea that nine justices of varying political persuasions are getting together in a room, and one of them is saying I think the Constitution means this and the other one's saying I think the Constitution means that, and coming to majority vote, I think that's just fine.

It is - the issue is not whether or not we throw the Constitution out. Of course we shouldn't. And the issue is not whether or not we simply make laws out of the air because we like the social import of them. No, we shouldn't do that, either. But we should also recognize that people who read the Constitution differently than we do are not necessarily subverting the law, but are simply seeing the law in a different way than do we. And I believe that if we could start doing that and looking at views counter to our own in some reasonable way and not just assume nefarious motives by people who disagree with us, we might be farther along as a country right now.

DAVIES: Well, Lawrence Goldstone, it's been interesting. Thanks so much.

Mr. GOLDSTONE: Thank you.

DAVIES: Lawrence Goldstone's book is called "Inherently Unequal: The Betrayal of Equal Rights by the Supreme Court."

Coming up, Ken Tucker on the new album from the band Dolorean.

This is FRESH AIR.

Copyright © 2011 NPR. All rights reserved. Visit our website terms of use and permissions pages at for further information.

NPR transcripts are created on a rush deadline by Verb8tm, Inc., an NPR contractor, and produced using a proprietary transcription process developed with NPR. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.