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Before Plessy, Before Brown: The Development of the Law of Racial Integration in Louisiana and Kansas

Kousser, J. Morgan (1991) Before Plessy, Before Brown: The Development of the Law of Racial Integration in Louisiana and Kansas. In: Toward a usable past : liberty under state constitutions. University of Georgia Press , Athens, GA, pp. 213-270. ISBN 082031305X.

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In the face of the Nixon-Reagan counterrevolution against liberal decisions of the Warren Court, some liberal judges and legal commentators have called for an increased reliance on state courts for the protection of civil rights and civil liberties. To gauge how well state courts and legislatures protected civil rights in the nineteenth century, I examined twenty school integration cases and numerous legislative and state constitutional convention actions in Louisiana and Kansas from 1868 through 1903. Contrary to what Raoul Berger and others have asserted, black integrationists had many allies in the mainstream of the Republican party in the late 19th century. Not only did they pass laws prohibiting the exclusion of children from any school because of race, color, or previous condition of servitude, but they represented black plaintiffs in numerous school integration cases, most of which have previously been unknown to or at least little noticed by scholars. At least one judge ruled segregation contrary to the Fourteenth Amendment, while another came close to doing so. The arguments of lawyers, legislators, and black petitioners to legislative bodies were all similar and often quite sophisticated. In particular, the unpublished briefs in three Louisiana cases made clear how intermixed contentions based on state and national constitutions were. If the state constitution and laws created a right and the national constitution and laws prohibited unequal enjoyment of state-created rights, then legal inequities violated rights on both governmental levels simultaneously. From 1877 on in Louisiana, and from 1903 on in Kansas, blacks lost the strong protection against unequal schools that they had enjoyed, at least de jure, earlier. Whether the reversals reflected shifts in white public opinion is unclear, for it was not the white populous that made the changes, but a new, younger set of white racist judges. Their ability to reverse or bypass earlier liberal judicial decisions or legal provisions demonstrates how fragile rights can be in the several states and undermines the empirical foundations of what might be called "the new states' rights."

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