An Ohio Dilemma: Race, Equal Protection, and the Unfulfilled Promise of a State Bill of Rights

Race was a central issue in Ohio from the very beginning. The original state constitution of 1802 and the successor constitution of 1851 explicitly limited suffrage to whites even as both documents forbade slavery. Moreover, the legislature imposed various legal disabilities and restrictions on African Americans. For much of the Nineteenth Century, however, the Ohio Supreme Court tried to narrow the scope of those restrictions by developing a distinctive jurisprudence that was in some respects more progressive, and in general less obnoxious, than that developed in other states and by the U.S. Supreme Court.

Before the end of the century, though, the court gave up the quest for a distinctive approach to equality. The court's diffidence in this area reflected a larger reluctance to develop an independent jurisprudence of individual liberty under the state constitution. At the same time, the court never directly challenged the racist assumptions built into the state constitution. For this reason, we should not delude ourselves into believing that the Ohio Supreme Court could have lit the way toward a more racially enlightened society.

Still, the failure to make better use of the state bill of rights was a lost opportunity. It remains to be seen whether the modem court can do better than its predecessors.