Allow Me to Retort: A Black Guy’s Guide to the Constitution

by Elie Mystal

Political rights are the rights to participate in the democracy: the right to vote, or hold elective office. Civil rights are the rights to participate in the economy: the right to own a home, or buy land. Social rights are the rights to participate in society: the right to get married, or throw a party. The Court here interprets the Reconstruction Amendments to protect only political rights. According to the logic of this Court, Black people had the right to participate: they could vote or have a trial or travel on trains. But they had no civil rights. No white man was bound to sell Black people a home, or a first-class train ticket. No white man was bound to employ Black people, or pay them an equal wage if they did. And Black people certainly had no social rights: they could be segregated or ghettoized or discriminated against at will. The core logic of Plessy is that laws that are facially race-neutral are constitutional, even if they have a discriminatory effect.