An Ohio Dilemma: Race, Equal Protection, and the Unfulfilled Promise of a State Bill of Rights
34 Pages Posted: 6 Aug 2004
This paper was written on the occasion of the bicentennial of the Ohio Constitution. Long before the United States adopted the Fourteenth Amendment with its guarantee of equal protection in 1868, the Ohio Constitution contained a guarantee of equality that drew on the natural rights principles embodied in the Declaration of Independence. The Buckeye State's original constitution, adopted in 1802, declared that all men are born equally free. The current version of the Ohio Bill of Rights, adopted in 1851, provides for the people's equal protection and benefit. During the Nineteenth Century, the Ohio Supreme Court dealt with many cases involving racial issues. In the process, the court developed a jurisprudence that, although jarring to modern sensibilities, was in some respects surprisingly progressive for its time. The court consistently rejected the so-called one-drop rule and afforded unusual protection to many persons of mixed race. Even when upholding racist laws such as those requiring segregated schools, the court's reasoning was considerably less offensive than that of the United States Supreme Court in cases raising similar issues. By the end of the century, however, the Ohio Supreme Court had largely abandoned the quest for a distinctive jurisprudence of equality, deferring instead to the U.S. Supreme Court's approach under the Fourteenth Amendment.
The rise and decline of Buckeye equality doctrine is not merely a matter of historical interest. Understanding this story can also shed light on contemporary constitutional jurisprudence. Until the past decade or so, the Ohio Supreme Court hesitated to develop distinctive interpretations of the state's Bill of Rights despite the emergence of what has been called the New Judicial Federalism. Even now, the court's approach has been halting and inconsistent at best. Accordingly, this paper suggests some parallels between the older racial equality cases and the recent effort to define the extent to which individual rights receive independent protection under the Ohio Constitution. Part I examines the Ohio Supreme Court's cases defining white in the contexts of legal disabilities and voting. Part II addresses the problem of segregation, especially in public schools. Part III focuses on the court's retreat from independent interpretation of the state constitution's equality guarantee and its general hesitancy to develop a distinctive approach to the Ohio Bill of Rights even in recent years.
Keywords: Race, Segregation, Bill of Rights, Voting, Schools, Education, Ohio Constitutional Law
JEL Classification: K10, K30, K40
Suggested Citation: Suggested Citation