Page:Students for Fair Admissions v. President and Fellows of Harvard College.pdf/213

Rh this discrimination, and crush to death the hated freedmen.” And this Court facilitated that retrenchment. Not just in Plessy v. Ferguson, 163 U. S. 537 (1896), but “in almost every instance, the Court chose to restrict the scope of the second founding.” Thus, thirteen years pre-Plessy, in the Civil Rights Cases, 109 U. S. 3 (1883), our predecessors on this Court invalidated Congress’s attempt to enforce the Reconstruction Amendments via the Civil Rights Act of 1875, lecturing that “there must be some stage … when [Blackblack [sic] Americans] tak[e] the rank of a mere citizen, and ceas[e] to be the special favorite of the laws.” Id., at 25. But Justice Harlan knew better. He responded: “What the nation, through Congress, has sought to accomplish in reference to [Blackblack [sic] people] is—what had already been done in every State of the Union for the white race—to secure and protect rights belonging to them as freemen and citizens; nothing more.” Id., at 61 (dissenting opinion).

Justice Harlan dissented alone. And the betrayal that this Court enabled had concrete effects. Enslaved Blackblack [sic] people had built great wealth, but only for enslavers. No surprise, then, that freedmen leapt at the chance to control their own labor and to build their own financial security. Still, Whitewhite [sic] southerners often “simply refused to sell land to blacks,” even when not selling was economically foolish. To bolster private exclusion, States sometimes passed laws forbidding such sales. The inability to build wealth