The Supreme Court Strikes Back
Or, the American legal system turns against equality
Writing in 1871, Walt Whitman spoke for those hopefully looking toward a more egalitarian future. In Democratic Vistas, Whitman perceived materialism, and the greed and corruption it generated, fighting to undermine equality. The accelerating desire for ever more stuff divided Americans into competing classes that lacked a shared vision for their country and lived hollow lives devoted to accumulation. But Whitman felt confident that the nation would embrace its highest ideals. “The People, of their own choice,” fought and died to defeat the Slave Power, bringing freedom to millions. “Democracy, in silence, biding its time, ponders its own ideals,” Whitman wrote, “not of men only, but of women.” For Whitman, America’s ideals are embodied in its two compacts, the Declaration of Independence and the amended Constitution. These ideals might have become temporarily silent, but they remained active just beneath the surface of daily life and would return to create a truly egalitarian nation.1
Whitman presented an eloquent and inspiring portrait of a nation moving inexorably toward ever greater equality and democracy—and he could not have been more wrong. The arc of American history would, in the period Mark Twain so perfectly labeled “the Gilded Age,” move in the opposite direction from that imagined by Whitman, Frederick Douglass, Anna Dickinson, Susan B. Anthony, and so many other hopeful proponents of equality. The democratic dream died quickly because of southern violence, northern whites’ silence, Supreme Court opposition, and an intellectual reaction to the very concept of equality.
Millions of Americans thought the Civil War had secured the triumph of equality, at least at the most basic and essential legal level. African Americans, women, workers, and immigrants all briefly envisioned a nation premised on true democracy, with everyone’s rights respected. They had reason to believe that the Fourteenth Amendment had fixed the American legal system in favor of equality with a simple and direct definition of “citizen of the United States.” No legal barriers to full citizenship could stand before its eloquent simplicity: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The amendment also made clear that no state could “abridge the privileges or immunities of citizens of the United States;… nor deny to any person within its jurisdiction the equal protection of the laws.” What could be clearer? Yet powerful forces quickly gathered to limit the impact of this constitutional promise of equal rights.
As we look through the opposition to equality in the last half of the nineteenth century, we will repeatedly see the same two overriding fears: that legal equality would lead to women becoming masculine and to sex between white women and black men. These were not mere pretexts; indeed, one cannot underestimate the fragility that underlay the racism and sexism of a great many white men in this period. It is evident from their fervid denunciations of legal equality that many men feared that women would abandon femininity at the first crack in patriarchal control and that all women longed to have sex with black men. Only strict social conventions backed by the full force of the state and the threat of violence stood between the civilization white men had constructed and chaos.
These efforts to keep the lid on aspirations for equality found their greatest allies in the nation’s courts, backed by a popular understanding of science that perceived strict hierarchies in nature. Progressive Republicans had taken advantage of a unique political moment in the aftermath of the Civil War to force equality into the Constitution without any Democratic support. While a widening circle of Americans accepted equality as a valuable aspect of American society, the nation’s intellectual elite—judges, professors, lawyers, scientists, doctors—adopted contrary views, constructing new justifications for inequality that warped and ultimately defeated the positive accomplishments of the Civil War. By the century’s end, the United States would return to a caste-based social system, and a foreign observer would be justified in thinking that the Confederacy had won the war.
The Confederacy may have ceased to exist, but those who had fought for a slave republic quickly transferred their efforts to violently reasserting white supremacy. While some postwar violence was local and spontaneous, a definite pattern of organized efforts at intimidation backed by deadly force quickly emerged. White racists formed groups such as the Ku Klux Klan, gun clubs, all-white militia companies, and Democratic Party chapters to coerce quiescence from the newly freed slaves and their white allies. These racist warriors used every traditional means of social control—nighttime terror attacks, public beatings, threats of harm to entire families, and even the eighteenth-century practice of tarring and feathering—as well as some new tactics, including mass lynchings, masked raiders, massed gunfire from private militias, and lethal mob violence. The white supremacists did not feel the need to conduct their operations in secret; indeed, they publicly proclaimed their anti-equality ideology and plans for the unrestrained use of violence, and they laid claim to one of the political parties to lend legitimacy to their actions.2
With federal troops present in the South at the end of the Civil War, Congress gave the military the task of protecting the rights of the freedmen. Though Union soldiers could not be everywhere, they lent weight to the efforts of the freed slaves to vote. These tens of thousands of new citizens united with many white supporters to hand the Republican Party victory in most southern states from 1866 until 1876. Frustrated by this emerging democracy, white supremacists ratcheted up the terror campaign they had always used to keep blacks in line, this time to prevent Republicans from voting.
It is important to recognize that southern whites had maintained control over the region’s black population for decades through organized terror operations backed by the full force of the state. In many ways, the Ku Klux Klan picked up the tasks and techniques of the older slave patrols to control black Americans. The Klan’s first meeting in Nashville in 1867 left no doubt of their aim: “Our main and fundamental objective is the MAINTENANCE OF THE SUPREMACY OF THE WHITE RACE.”3
In the face of increasing violence and voter suppression in the South, President Ulysses S. Grant demanded legislation to protect civil rights. Congress responded by passing the Civil Rights Act of 1870, which extended the federal government’s authority and power to protect legal equality under the enforcement clause of the Fifteenth Amendment. The act forbade state officials from using race as a criterion in voter registration, imposed penalties on anyone seeking to interfere with a man’s right to vote, authorized the president to deploy troops to enforce the law, and ordered violations of the act to be heard in federal courts, thus preventing stacked all-white local juries from acquitting the accused. The following year, Congress passed the Ku Klux Klan Act, outlawing all efforts to prevent citizens from voting, holding office, or enjoying the equal protection of the law. Vigorous enforcement of the latter act by the Grant administration led to the conviction of numerous Klan leaders and temporarily lessened white violence.
Southern Democrats, in turn, formulated the infamous “Mississippi Plan”—also known as the “Shotgun Plan” and in South Carolina as the “No. 1 Plan of the Campaign.” By any name, Democrats aimed to reclaim political control by any means available, including fraud, inaccurate charges of corruption, intimidation, and violence. The plan called on every Democrat to carry arms and to keep blacks from voting in order to reinforce “that their natural position is that of subordination to the white man.” The Democrats acted openly, unconcerned that they would be punished for their activities, no matter how deadly, as northern Democratic Party leaders offered their full support. In calling for murdering political opponents, a prominent South Carolina Democrat concluded that “a dead Radical is very harmless.” As Congressman A. S. Wallace said, “Intimidation is the order of the day and terrorism reigns supreme.”4
Democrats did not just want to win elections; they wanted to transform the South into a region of fourteen single-party states, in which no opposition would be spoken and no resistance tolerated. They spoke openly of plans to create what they called “the Solid South.” In Georgia, the Augusta Constitutionalist boasted that “a minority of white men, when united in a common purpose, never fails to drive from power a semi-barbarous majority.” Democratic clubs promoted a tautology: “This is a white man’s country and as such has to be ruled by the white men.”5
White supremacists deployed a formidable array of illegal methods to destroy democracy in the South, techniques they would employ for the next century. The Democrats’ gun clubs, of which there were nearly three hundred in South Carolina alone, had the stated purpose of putting “control of the state government in the hands of the white people.” Well-armed and full of Confederate veterans, these clubs served as “the armed wing of the Democratic party” and specialized in night attacks on black communities.6
Many southern whites, especially merchants and poor white farmers, supported the Republican Party. Generally they preferred the Republicans’ policies, especially school funding and infrastructure development. To combat this multiracial unity, Democrats boycotted businesses operated by Republicans and refused to hire any white member of that party, ostracizing them socially as well. By 1875 they would go even further and expand their murderous rage to include white Republicans, as when white supremacists killed scores of German immigrants in Mason County, Texas.
As Louisiana’s Henry Adams succinctly stated, the South had once more “got into the hands of the very men that held us slaves.” The Democrats did not hide their willingness to kill; the Mississippi party declared they would not hesitate “to kill every white Radical in the county.”7
Incredibly, southern blacks defied the terror campaign and turned out in record numbers in the 1876 election. However, the Democrats, not in the least shy about their anti-democratic practices, bought votes, prevented Republicans from voting, “forgot” to open polls in black areas, failed to provide sufficient ballots to Republican districts, stuffed ballot boxes while destroying others, and used many other techniques in their campaign to prevent an accurate expression of the people’s will. Many Democratic districts in South Carolina had greater than 100 percent voter turnout in the 1876 election. As during the antebellum period, the entire Bill of Rights once more became a dead letter in the South; the First Amendment died an especially ugly death, as only opinions supportive of white supremacy could be publicly expressed. Southern blacks continued their efforts to vote, despite the powerful legal and extralegal forces brought to bear against them. A Senate committee investigating violence during the 1878 election concluded, “The right to vote is a privilege more highly prized by the colored voter than by voters of any other class; and he will make sacrifices to exercise this privilege that few white men will.” Yet the tally of dead Republicans kept rising.8
By killing hundreds of people, including a number of prominent political figures, employing numerous deceptive and fraudulent election strategies, and threatening anyone who dared speak out for legal equality, white supremacists took over all the southern state governments by the time of the notorious deal in 1877 that allowed Rutherford B. Hayes to claim the presidency in exchange for ending federal protection of civil rights.
By accepting Hayes as president, the Democratic Party in the South regained control of their region for white supremacy, quickly terminating every form of nascent equality. After the Civil War, the Republican Party became the workingman’s party in the South, with thousands of poor whites joining the freedmen to fight for common interests. Democrats curtailed this alliance by instituting poll taxes that prevented the poor—white or black—from voting. In Texas, the Weekly Banner celebrated the advantages of a poll tax, which “would work like a charm in the counties where there is a large negro population” while also keeping poor whites from the polls, “without any serious detriment to the public good.”9
The restored Democratic state governments denied fundamental rights to poor whites as well as blacks, a fact recognized by many of the former, leading to a brief Greenback-Republican alliance in 1878 that captured local and state offices throughout the South. The Democrats responded viciously, attacking anyone who favored this alliance regardless of race, and driving the alliance’s leaders, such as Louisiana state senator A. R. Blount, out of the region. One white Republican wrote President Hayes, “I know that if I run on the Republican ticket here I will be killed and I don’t propose to put myself up as a target to be shot at.” With time, the Democrats won over the majority of poor whites with a combination of fear and racism.10
The terrorist campaign of the southern Democrats could not have succeeded without the support of northern Democrats and the acquiescence of northern Republicans. Northern whites had grown tired of the long battle over rights and moved on to other issues, leaving southern blacks to the mercy of former Confederates. Liberals demonstrated their own biases in turning on the southern Republicans.
As early as 1871, The Nation editorialized that the Reconstruction experiment had failed, with the southern governments made up of “trashy whites and ignorant blacks.” The only solution they could imagine was leaving the people of the South to work out their own mess. If the Democrats insisted on using violence, “we cannot interfere effectively, and had better not interfere at all.” These states would pay a price for their bigotry, as they suffered “impoverishment and emigration.” Any blacks who did not like their treatment should just leave and seek freedom elsewhere. The Nation thus abandoned the idea of national citizenship shortly after the concept’s creation. In its next issue, this liberal beacon demonstrated its own bigotry in reporting on its snarky exchange with the Charleston Daily Republican. When The Nation accused the South Carolina legislature of being controlled by uneducated blacks, the southern newspaper had, in The Nation’s view, no response but “the usual burst of rhetoric” about equality and opportunity. The magazine concluded by blaming the mixed-race legislature for driving the Ku Klux Klan to acts of violence.11
By 1877, most northern newspapers ceased reporting acts of white violence and a great number of former crusaders for equality gave up, turning their energies to other matters. Throughout the country, white people came to accept the emerging mythology of the Old South as a place of benign slave masters and happy slaves. Abusers of all kinds seek to create a counternarrative that denies the abused their status as victims. In the years after the Civil War, when it seemed that southern whites would be cast in history as the bad guys, a concerted effort emerged to reimagine the slave South as a land of noble white men, elegant ladies, and loyal slaves. Alexander Stephens, who began his vice presidency of the Confederacy by proclaiming slavery the cornerstone of the new nation, now devoted himself to arguing that the real conflict had been an elevated intellectual debate over states’ rights. Prominent writers, from the poet/priest Abram Joseph Ryan to the novelists Thomas Nelson Page and Thomas Dixon, poured lies and romance over southern history like molasses. Influenced by these novels, historians such as William Dunning and Woodrow Wilson rewrote the story of slavery as if to prove that the victors do not always write the history. This mythology persisted well into the twentieth century, creeping into the new medium of film.12
Not just southerners joined in this revisionist project. The nation’s most famous minister and onetime abolitionist, Henry Ward Beecher, insisted that the time had come for all northern Christians to welcome the southern states back under their traditional white leadership and that true Christians should feel sorry for all that the former Confederates had suffered. Beecher minimized their “shocking barbarities” as just an effort to adjust to the new, slave-less environment. They had lost their way of life, requiring northerners to have “patience with Southern men as they are, and patience with Southern opinions as they have been.”13
Reverend Beecher’s sister Harriet Beecher Stowe—author of the phenomenally popular abolitionist novel Uncle Tom’s Cabin—also decided that she was over blacks. From her winter home in Florida, she observed the racial violence she had once portrayed and condemned, but now she called on her friends to join her in keeping quiet on the subject, so as to not hurt the feelings of southern whites. The woman whose harsh portrayal of southern society had led legislatures to ban her book found her sympathies shifting to her wealthy white neighbors as she accepted the mythology of the Old South. She now described blacks as looking like baboons and “the missing link of Darwin” and as uniquely suited to labor in the hot and humid South. As she wrote several friends, she no longer cared for the political and social issues that riled the North, as she hoped to create her own Florida plantation. The two Beechers helped white Americans North and South to become comfortable with their history by forgiving the white South for its racist violence.14
Curiously, former Confederates did not return the forgiveness. Most persisted in their conviction that the Civil War was entirely the fault of northern abolitionists, who had destroyed a superior way of life. For instance, the Methodist, Presbyterian, and Baptist churches had all separated into northern and southern branches in the years prior to the war. With the end of Reconstruction, northern clergymen sought denominational reunification, but the southern religious leadership would have none of it, still angered by their brethren’s refusal to support slavery.
In religion as in politics, the South got its way. At the beginning of what is known as the Third Great Awakening, a series of evangelical revivals that swept the country starting in the centennial year, Dwight Moody, a Massachusetts-born white minister, brought his revival to Augusta, Georgia. At first blacks and whites mingled freely. But many prominent white ministers, incensed at this innovation, demanded that Moody build a literal fence between the races, which he did immediately, earning front-page praise from the Atlanta Constitution. All revivals in the South until Billy Graham’s in the 1950s would remain segregated. But Moody went even further than requested, refusing to condemn slavery, rejecting the concept of equal rights, and lending a Christian veneer to the reactionary effort to reclassify blacks as inferior, all in the name of uniting America’s white Christians. It is little wonder that Frederick Douglass called Moody a rank hypocrite. “Of all the forms of Negro hate in this world,” Douglass wrote, “save me from that one which clothes itself in the name of the loving Jesus.” Moody legitimated segregation years before the southern states institutionalized the practice.15
Not surprisingly, southern Republicans felt betrayed by their erstwhile northern allies. In New Orleans, the Committee of Five Hundred Women organized to preserve their newly won rights by leaving the South. The white press mocked this palpable failure to “accept their own situation,” which was “that they are a people, ignorant, without money, under a terrible necessity to labor and to wait.” But they would not wait, helping to launch the great Exoduster movement that took thousands of blacks west in search of equality and opportunity.16
Leaving the South proved more difficult than many anticipated. Although every citizen had a right under the Fourteenth Amendment to travel freely between the states, southern white elites did not want to lose the cheap labor of the freedmen. Their racist ideology carefully maintained the right of whites to determine every aspect of the lives of black Americans, and even many poor whites could not tolerate the negation of their culture represented by the Exodusters. The resulting white terror campaign accelerated the desire of ever more blacks to leave the South for good, with the movement gaining added impetus when the governor of Kansas, John St. John, issued a public welcome. Meeting in secret locations, the Exodusters pooled their meager resources and planned their escape. Lacking any central organization, this spontaneous movement westward speaks volumes on not just the virulent racism of the South, but also the complete abandonment of these loyal citizens by the federal government. As a consequence, an estimated fifty to seventy thousand people joined the Exoduster migration of 1877 to 1881. “Fleeing from oppression and bondage,” as former Louisiana state senator Andrew Pollard put it, they found on the prairie a better life, one free from terror and violence.17
As Georgia’s attorney general, Amos T. Akerman, framed the issue, in ending Reconstruction, Congress responded to “lawlessness by letting the lawless have their own way.” George T. Downing, the black businessman who ran the congressional dining room, angrily complained, “We were offered up.” The national Republican Party saw no point in continuing to battle the terrorists and wrote off the entire region, often not even bothering to put forth candidates for office. The Nation rejoiced that the “Compromise of 1877” ending Reconstruction meant that blacks would disappear from the national conversation: “Henceforth, the nation, as a nation, will have nothing to do with him.” This liberal magazine was content that political, social, and economic power in the South had been restored to the white elite, where it belonged. The Republicans’ complete surrender persuaded southern white supremacists that violence worked, encouraging them to continue to rely on such methods over the next eighty years.18
The North capitulated to the South in 1877 by withdrawing federal troops, accepting the end of Reconstruction, and permitting the region to fall once more to despotism based on white hegemony. Many of those who had once led the battle for equality gave up completely, generally allowing what had once been a carefully obscured racism to rise to the surface. “Let us admit,” editorialized the St. Louis Globe-Democrat, “that though we staked everything for freedom under the spur of the rebellion, we have not enough of principle about us to uphold the freedom, so dearly bought, against the persistent and effective opposition of the unrepentant and unchanged rebels.” Northern politicians and the public they represented turned their backs on the cause of equality in 1877, but an even greater betrayal came from the nation’s intellectuals, who once more found assurance of their own brilliance in a racist ideology.19
For some thirty years starting in the 1850s, American politicians, scholars, and ministers entered into a sustained debate on the existence and nature of equality. This extended dialogue, which drew upon deep religious and intellectual traditions, had enormous political and legal implications. However, the popularly accepted conclusion to the question of equality relied primarily on a misperception of science known as social Darwinism.
A Darwinian vision swept the United States with the end of the democratic experiment of Reconstruction. Like the Republican Party it represented, the Washington National Republican had long favored federal intervention in the economy, but in 1877 it switched its loyalty to laissez-faire, for in the future everything would and should be “decided according to the Darwinian theory, ‘survival of the fittest.’” This Republican newspaper accepted only one version of equality, the equal right to battle for survival. Under this new “scientific” perspective, the poor had only themselves to blame for their disadvantages. The successful earned their social positions, while those who failed also got what they deserved.20
The absence of a level playing field was irrelevant, for nature determined winners and losers based on each individual’s inherent skills and on the objective reality of their race and gender. Inequality was an inescapable fact with which no one should interfere, as abundantly verified by the latest advances in science. The renowned biologist and geologist Louis Agassiz, of Harvard, supported this new pseudo-science of racism. “We should beware how we give to the blacks rights, by virtue of which they may endanger the progress of the whites,” he wrote, scoffing at the very idea of social equality for blacks as contrary to science. Similarly, the prominent historian James F. Rhodes rejected as absurd the liberal faith in education, which could not overcome “the great fact of race.” The modern age of science proved the validity of racism, and anyone who rejected that knowledge rejected science as well.21
This new ideology initially developed incoherently, as Henry Adams observed, in response to the mass slaughter and waste of the Civil War. Following the collapse of Reconstruction, vague notions of objective inequality found a solid intellectual—if not truly scientific—structure. Those looking for a scholarly crutch for their preferred form of inequality turned readily to the twisted extension of natural selection to society popularized by the Englishman Herbert Spencer. American supporters quickly made Spencer’s work their own, in 1877 giving it the name social Darwinism.22
Perceived as indisputable science, social Darwinism became first a fad and then an obsession among educated Americans. Students at the leading colleges all read and discussed the premier texts, the public attended popular lectures on the subject, and even ministers, who as a group rejected Darwinism, celebrated social Darwinism. The leading liberal magazine of the time, The Nation, became an advocate in 1877, promoting the idea that the rich deserved their wealth and that any effort to aid the weak undermined natural selection and thus social progress.23
The popularity of social Darwinism, while self-serving for many advocates, speaks to more than just personal interest. The conviction that it is wrong to interfere with the workings of nature performed a valuable service in clearing the consciences of the majority of Americans who could not otherwise remain comfortably inert in the face of substantial social injustice. The voice of this clarion call for inaction was the Yale professor William Graham Sumner.
Generally credited as the founder of American sociology, Sumner deployed statistics to demonstrate that any form of social or economic engagement by the government disrupted evolution and derailed progress. In the 1870s Sumner emerged as the nation’s first superstar scholar, leading the revival of anti-immigrant and anti-Catholic sentiment as he discovered whole new categories of people to disdain in addition to blacks and women: the poor, workers, eastern and southern Europeans, Jews, Chinese, Japanese, Filipinos, Mexicans—basically all those who were not WASP men. Sumner and his fellow social Darwinists cared little for actual science; their defenses of inequality tended toward the rhetorical rather than the empirical. They did not care that evolutionary science actively rejected its application to society, for social Darwinism was, in philosopher William James’s words, “an emotional attitude, rather than a system of thought.”24
Appearing before a committee of the House of Representatives in 1878, Sumner insisted that nature demanded social inequality and that misguided efforts to change the natural order would have disastrous effects. Sumner assured Congress there was only one alternative to his vision: “If we do not believe in survival of the fittest, we have only one possible alternative, and that is survival of the unfittest.” The inferior must bear their lot without complaint and get out of the way of their superiors as nature’s “iron spur” crushed the weak. At no time did Sumner offer any actual scientific evidence for his position, contenting himself with its assertion and the most rudimentary understanding of how natural selection worked.25
By the late 1870s, a great many white Americans wanted to believe in both progress and inequality. Social Darwinism explained how the two worked in tandem, negating any perceived contradictions and forestalling any need to work for social improvement. Sumner constructed a masculine image free of emotional concern for others, which he dismissed as feminine sentimentality. The young William James, a professor at Harvard, received a stern injunction from his mentor: “Stop your sniveling complaints, and your equally sniveling raptures! Leave off your general emotional tomfoolery, and get to WORK like men!” Real men did not care what happened to other people, being too busy fighting the battles that would advance the race.26
In such an educational environment, intellectuals of every stripe turned against equality. For example, in 1878 the historian Francis Parkman gained wide attention for his article “The Failure of Universal Suffrage.” Parkman despaired for his country if just anyone could vote, drawing particular attention to workers and immigrants who had no sense of the public good and cared only for handouts from the government. Though born in Ireland, E. L. Godkin, editor of The Nation, warned of the danger posed by ignorant and self-interested Irish workers who fought for more pay rather than the good of the national economy. Charles Francis Adams Jr. trembled before the prospect of universal suffrage leading to a “government of ignorance and vice” dominated by black, Irish, and Chinese workers.27
The Civil War and Lincoln’s guiding rhetoric restored equal rights to American consciousness. Yet by the mid-1870s the majority of white men disowned equality, reverting to antebellum standards, though with a veneer of scientific-sounding rationalizations camouflaging their indifference to the rights and needs of others. This shift in intellectual currents marked the end of a period of social reform that had brought the United States to the verge of an equal, democratic society. Fearing social chaos, America’s political and intellectual leaders turned to a new set of ideas that happily required nothing of them but their own continued selfish conduct. Social Darwinism served as the intellectual validation for every form of inequality, merging easily with the violent racism promoted by white supremacists. Social Darwinism also functioned as the intellectual bedrock of a series of Supreme Court decisions that neutered the Reconstruction amendments and turned back the clock on American social relations. By 1900, social Darwinism served as the unofficial ideology of the American legal system.
Social Darwinism gave primacy to masculine cultural characteristics. Women played little role in this worldview beyond giving birth to the next, improved generation. As the influence of social Darwinism spread through politics and the law, women became steadily less significant in the life of the nation, and the notion of women confined to the domestic sphere became a central tenet of American life. The Fourteenth Amendment’s promise of “all persons” enjoying due process of law briefly gave women hope that they might finally gain legal equality. But it quickly became apparent that ideology trumps ideals.
America’s first feminists tried every avenue to attain legal equality. As Elizabeth Cady Stanton summarized the situation in 1869, they had “argued their right to political equality from every standpoint of justice, religion, and logic, for the last twenty years.” They quoted all the key legal and cultural documents in support of equality, “and although much nonsense has emanated from the male tongue and pen on this subject, no man has yet made a fair argument on the other side.” Stanton, like progressives throughout American history, could not understand how any rational person could reject human rights as a core principle. To overcome irrational male fears, women now sought to teach men that women too are human, deserving the same rights as any man would demand for himself.28
The first convention of the National Woman Suffrage Association, held in St. Louis in October 1869, turned to the Fourteenth Amendment’s promise of citizenship and due process rights to all persons to support their claim for equality. Since the Constitution now denied the states the power to “abridge the privileges or immunities of citizens of the United States,” states denying women the right to vote—which was all of them—violated the Constitution. Virginia Minor, president of the Missouri chapter, proclaimed that the Constitution “gives me every right and privilege to which every other citizen is entitled.” The states might regulate suffrage, she argued, but they could not prohibit it. She sarcastically observed that all previous actions limiting citizenship to white men, such as the Dred Scott decision, had been made by white men, not by “illogical, unreasoning women, totally incapable of understanding politics.” According to the Fourteenth Amendment, women, as citizens of the United States, enjoyed all the rights of citizenship, not just a select few. To accept otherwise is to live as non-citizens. “Disguise it as you may,” she wrote, “the disenfranchised class is ever a degraded class.”29
Operating on the certainty that the Fourteenth Amendment made them citizens, women around the country attempted to exercise their right to vote in the 1870 and 1871 elections. Some actually cast ballots, as local officials accepted their argument of legal equality; most, however, were turned away. Susan B. Anthony cast a vote in November 1872 and was arrested a few weeks later for violating federal law. She held that the Fourteenth Amendment gave her, a U.S. citizen, the right to vote. The local judge disagreed, sentencing Anthony to pay a fine of $100, which she declined to do. In Washington, D.C., Clara Barton called for the assistance of veterans: “Brothers, when you were weak, and I was strong, I toiled for you.” Now she asked for the right to vote, “and as I stood by you, I pray you stand by me and mine.”30
The suffrage movement did retain many significant male allies during Reconstruction, including in Congress. But too many white men lost interest in sharing the rights of citizenship with others, and only a few western states passed the necessary legislation. In 1869, George Julian, whose daughter Grace became a forceful leader in the suffrage movement, introduced a constitutional amendment in the House declaring that “the right of suffrage in the United States shall be based on citizenship … without any distinction or discrimination whatever founded on sex.” His proposal never even came up for a vote. More typical of the turn against equality in these years was the attitude of the supposedly progressive journal The Nation, which mocked Victoria Woodhull’s efforts to get Congress to declare that women had the right to vote. The House Judiciary Committee rejected Woodhull’s petition by declaring the franchise a matter for the states. The Nation snidely dismissed efforts to diminish politics with “the passionate longings, the delicate fancies, the flashing intuitions … [of] the Feminine Half of Humanity.” Women must stop interfering with the serious masculine affairs of government.31
With the majority of Congress contemptuous of women’s claim to political equality, the movement turned to the courts, where they received a uniformly hostile response. For seven decades after the Civil War, the state and federal courts crushed any and all efforts to extend legal equality.
The first case to challenge women’s exclusion from equal citizenship came in the District of Columbia in 1871. In the April elections that year, a group of seventy women went to cast their votes, only to be denied that right by election officials because of their gender. Since women could not practice law in the nation’s capital, they hired two male attorneys to present their case in the District’s supreme court on the basis of the Fourteenth Amendment and the traditional legal argument that government “can exercise no power not granted by the Constitution; and that instrument certainly confers no power to limit the right of suffrage.”
A unanimous court rejected voting as a right, holding that states and localities could establish suffrage rules without regard to the Constitution’s other protections. The court insisted “that the legal vindication of the natural right of all citizens to vote would, at this stage of popular intelligence, involve the destruction of civil government.” In rejecting women’s right to vote, the court also warned of the horrors of allowing all men to vote, since that level of equality had already corrupted the nation’s cities to the point of anarchy. For the court, it was a “fact” that allowing an unfettered right to vote “would be destructive of civilization.” The District’s highest court thus anticipated the reactionary legal standards that would shortly drive America’s judiciary to turn back the clock on every aspect of legal equality. Women brought similar cases in state courts from California to New Hampshire, and all ended the same way, with judges rejecting any logic that saw the Fourteenth Amendment conferring rights on women.32
Virginia Minor determined to take the matter to the Supreme Court. She read the Fourteenth Amendment and thought its grant of citizenship to “all persons” and promise to protect their “privileges and immunities” must apply to her. However, Missouri would not let her vote. When the Supreme Court heard her case in 1875, Missouri did not bother to send a lawyer, assuming women’s inferior status a settled matter in American law. A unanimous court agreed with Missouri’s unstated logic. Chief Justice Morrison Waite dismissed Minor’s citizenship as irrelevant. Since the Constitution does not mention suffrage as a mark of citizenship, there is no right to vote, and states get to decide which citizens enjoy the franchise. Waite ignored the Reconstruction amendments and argued that since none of the original states had granted all citizens the vote, and since the Constitution did not originally define citizenship, no connection existed between citizenship and voting. Only another constitutional amendment could change that version of history.33
Stalled in Congress and blocked by the courts, women turned their attention to the state level, battling in legislatures and placing the issue on the ballot in many states. They enjoyed some early victories in the territorial assemblies of Wyoming in 1869 and Utah in 1870. The latter vote became entangled with anti-Mormon sentiment in Congress and led, in 1887, to the Edmunds-Tucker Bill, revoking women’s suffrage in Utah—though the women of Utah regained the vote with statehood in 1896.
This initial legislative battle for suffrage came to a head in Colorado in 1877, attracting national attention and national leaders on both sides of the issue. Colorado had become a state the previous year and nourished a progressive reputation with its inclusive welcome of immigrants, its liberal constitution, and a large majority for reform Republicans. Women persuaded the legislature to place universal suffrage on the ballot and earned the support of several prominent men, including Governor John L. Routt and the influential Hispanic state legislator Agipeta Vigil. Renowned proponents of the right to vote, including Mary Shields, Lucy Stone, and Susan B. Anthony, traveled the state speaking in favor of the referendum. The campaign saturated the news, with the states’ two leading newspapers supporting what they called “simple justice”—and welcoming the political opinions of women in their columns. Women organized Equal Suffrage Clubs and held Suffrage Festivals calling for Colorado “to become a truly free state.” A Miss Beecher in Colorado Springs succinctly stated the case for equality: “I am a better judge than any man can be of my own responsibilities and powers.”34
Opponents of universal suffrage found their voice in two other newspapers, the Colorado Chieftain and the Denver Tribune. The editors of these papers labeled suffragists “faded and awfully frigid” and “windy fanatics,” and they warned that if women voted, “the family will be reduced to chaos; women’s whole nature altered; men’s feeling toward her changed.” The state’s leading advocates of keeping women in their domestic sphere were Catholic bishop Joseph P. Machebeuf and Denver Presbyterian minister T. E. Bliss, “the Woman Hater.”35
The Catholic bishop and the Protestant minister came together in constantly referencing St. Paul’s injunction that women should just shut up and that God opposed women’s suffrage since he created them to be mothers, and mothers clearly should not vote. Neither minister would debate those favoring universal suffrage, confining themselves to public sermons warning that if women voted, they would either never marry or spend their time arguing with their husbands. On Election Day, women tried to compensate for not being able to vote by showing up at polling places to appeal for justice. In Denver, Bliss got into a shouting match with Lucy Stone that concluded with Bliss knocking Stone to the ground. The Woman Hater won both the bout and the election, the proposal failing 14,053 to 6,612.36
The surprisingly thorough defeat in Colorado dealt a crushing blow to the suffrage movement, which did not regain national momentum for another thirty years, as the country moved in the opposite direction by limiting rather than extending the vote. The following year, Anthony crafted a simple version of a suffrage amendment, which California senator Aaron A. Sargent introduced to a yawning silence. The high point of this congressional effort came in 1882, when the House and Senate created select committees on women’s suffrage, both of which supported an amendment. However, that amendment did not come up for a vote until 1887, when it was defeated in the Senate 34 to 16, with 26 abstentions.37
Just as male voters refused to share their right to vote with women, so the all-male legal profession constructed nearly insurmountable obstacles to women’s efforts to gain equal rights. The Supreme Court had long proven itself the enemy of equality, as demonstrated most clearly in the Dred Scott decision. Given that by 1872 every justice had been appointed by a Republican, supporters of Reconstruction and the three recent amendments confidently expected the Court to side with their new vision of an expanding democracy, defending freedom with the same enthusiasm with which it had once defended slavery. The Prigg v. Pennsylvania (1842) and Dred Scott decisions had established the federal government’s power to protect slavery; now surely, as Representative James Wilson said in introducing the Civil Rights Act of 1866, the Court would grant the same authority for the protection of freedom.38
At first it seemed that the nation’s courts would follow the intent of the framers of the Reconstruction amendments. In 1869, the Supreme Court upheld congressional power to set the terms on which the Confederate states could return to full standing in the Union. The following year the influential chief judge of Michigan’s supreme court, Thomas M. Cooley, deployed the logic of the Fourteenth Amendment to strike down segregated schools, declaring that all students must be treated equally, as all citizens were equal before the law. That standard must hold even if it meant overriding the democratic decision of the voters. Despite this auspicious beginning, the nation’s courts quickly veered in a different direction, guided by social Darwinism and a determinative adherence to inequality.39
State courts acted first in attempting to negate legal equality. The supreme courts of Delaware and Kentucky ruled that procedural sections of the Civil Rights Act did not apply to their states’ prohibitions on accepting the testimony of black witnesses. Other state courts followed suit in a struggle to prevent the adoption of legal equality.40
In 1866, Justice Noah Swayne, sitting as a circuit judge, voided these efforts to retain inequality before the law. Swayne ruled that the Thirteenth Amendment and the Civil Rights Act worked in unison to reform the nation’s legal system in the name of equal citizenship. Taken together, they empowered the federal government to protect the rights of all citizens everywhere in the country, while the supremacy clause of the Constitution granted the federal courts authority to override state laws.
In a sophisticated analysis, Swayne insisted on the need for continuing legal oversight precisely because the impact of slavery could not be destroyed simply by terminating the institution. It was vital to recall that slaves had long been subject to “the grossest outrages by the whites,” with no legal recourse available to them. The states had done nothing to protect them or free blacks, upon whom were affixed also “the badges of the bondsman’s degradation.” These same states could not be relied upon to suddenly treat blacks as legal equals. Therefore, the procedural standards in Kentucky and other states that limited the legal rights of blacks as witnesses or litigants had to give way to these new constitutional protections. These changes, Swayne stated, constituted an “act of great national grace.”
But when the issue came before the full Supreme Court, they threw aside Swayne’s decision and reasoning, limiting the meaning of the Reconstruction amendments in the first case addressing their impact.41
Given the Republican background of most of the justices who served between 1870 and 1900, their refusal to respect the efforts of the Republican Congress to reconstruct the nation into a more democratic society can appear baffling. Historians have long debated this seeming contradiction, with some seeing the rebirth of federalism and its fear of a powerful central government, while others argue for more ideological explanations such as racism, misogyny, and social Darwinism, and still others put forth entirely economic interpretations of this judicial retreat from equality. No matter the reason, there is little doubt that the high court’s actions in those three decades had profound restrictive effects on all those who did not enjoy the privilege of the correct ethnic, gender, and religious identifier.
Blyew v. U.S. (1871) grew out of the murder of a black woman in Kentucky by a group of white men. There were numerous witnesses to the crime, but they were all black. Under Kentucky law, blacks could not testify against whites, allowing the court to find the white defendants innocent. In his majority opinion for the Supreme Court, Justice William Strong noted the protections of legal equality in the Civil Rights Act and then dismissed them since the victim of the crime was dead and therefore no longer enjoyed any rights, which terminated federal jurisdiction. In their dissent, Justices Swayne and Joseph P. Bradley insisted that the limitation on black testimony violated the rights of the witnesses, arguing that such obvious discrimination formed “a badge of slavery”—the first time that term appeared in a Supreme Court case. While the phrase usually appeared only in dissents, its acknowledgment that the brutal history of servitude implanted a heavy cultural bias persistently battled against a complacent insistence that slavery and its attendant racism were safely buried in the past.42
The Supreme Court followed this abdication of federal authority in the protection of equal rights with the confusing and confounding Slaughterhouse Cases of 1873. Though originally concerning the authority of New Orleans to regulate slaughterhouses in the name of public safety, these three cases became significant precedents in the legal interpretation of the Thirteenth and Fourteenth Amendments. Writing for a 5-to-4 majority, Justice Samuel Miller framed his decision around the assumption that the people would protect human rights without need for federal action. Miller denied that the framers of the Fourteenth Amendment intended to grant Congress authority over civil rights, which had always been the exclusive jurisdiction of the states, nor in any way to diminish state powers. This logic required Miller to explicitly ignore the formal record of the debates. Historian James Kettner wrote that Miller’s deliberate lie “frustrated the intent and narrowed the scope of the amendment and set the development of American citizenship on a tortuous new path.” Miller returned to Taney’s concept of dual citizenship, establishing a distinction between state and federal rights; the amendment could not affect the rights states chose to grant their citizens.43
Even the dissents in the Slaughterhouse Cases weakened the Fourteenth Amendment. Drawing on the amendment’s privileges and immunity clause, Justice Stephen Fields argued against state interference in the economy. Even though it was a dissent, Fields’s reading of the amendment evolved over the next twenty years into a majority interpretation that rejected nearly all government regulation, as the protection of equal rights morphed into an unrestricted liberty of contract. Meanwhile, Justice Bradley’s dissent laid the groundwork for reading the due process clause as a further limitation on government action. As historians Harold Hyman and William Wiecek wrote, the logic of the majority and dissenting opinions “stalked through the pages of the United States Reports for the next generation, disemboweling federal and state efforts to protect workers from predatory employers in such constitutional monstrosities as Lochner v. New York (1905), Adkins v. Children’s Hospital (1923), and Morehead v. Tipaldo (1936).”44
The Slaughterhouse decision is among the most convoluted, and influential, of the nineteenth century. The justices crafted a narrative of the Reconstruction amendments as doing little more than ending slavery. The court distorted the Fourteenth Amendment further by maintaining that it addressed only federal and state actions, not those taken by private individuals or that were the result of custom. That same day the Court issued another, clearer decision that left little doubt of their hostility to legal equality, this time in a case involving a woman.
Under the standards of English common law, women could not be lawyers because they could never truly be independent. Myra Colby Bradwell begged to differ. Bradwell became an activist during the Civil War, raising funds for wounded soldiers and serving on the Sanitation Committee in Chicago. She also apprenticed with her husband, a prominent attorney and judge. She excelled at the law, founding and editing the Chicago Legal News, which she kept going despite her offices burning to the ground in the great fire of 1871. Bradwell played a key role in drafting Illinois’s 1861 Married Women’s Property Act and the Earnings Act of 1869, limiting the harmful effects of the traditional legal concept of couverture. In the latter year she applied for admission to the state bar, impressing her examiners, who recommended her to the state’s Supreme Court. But the court rejected her application on the simple grounds that she was a woman, “that God designed the sexes to occupy different spheres of action, and that it belonged to men to make, apply, and execute the laws.” No evidence was required since it was absurd to think otherwise.45
Bradwell thought otherwise and appealed to the U.S. Supreme Court. Wisconsin senator Matthew Hale Carpenter represented Bradwell, while Illinois did not bother to defend its position since the idea of a woman lawyer was simply ludicrous. Carpenter presented Bradwell’s position as a logical answer to the question of whether a qualified female citizen can “claim, under the XIV Amendment, the privilege of earning a livelihood by practicing at the bar of a judicial court.” Carpenter thought the answer obvious: since the Fourteenth Amendment says that no state can “make or enforce any law” that abridges the rights and privileges of a citizen, “it must follow that the privileges of all citizens are the same.” As a citizen, Bradwell should have the same right as any man to be an attorney.46
The justices could not begin to understand this reasoning. Without dissent, the Court ruled that no one has a right to pursue a specific career and that the word “person” was never intended to include women. Justice Miller simply reversed Bradwell’s logic; since non-citizens could be lawyers, citizenship was not a requirement to be a lawyer, and therefore there was no right of citizens to be lawyers.
In his concurrence, Justice Bradley expanded on the common-law and divine roots of inequality. The law and nature instituted separate spheres for men and women. That natural divide is evident in the “proper timidity and delicacy which belongs to the female sex,” and which obviously makes women unfit for civil life. The “divine ordinance” left women to function solely in the domestic sphere under male direction. Bradley found it “repugnant” to conceive of a woman having any career other than motherhood. For these reasons, “a woman had no legal existence separate from her husband,” and could not hold property or enter into contracts—doing so would make the practice of the law impossible. Bradwell should be content with her paramount “destiny and mission,” which was to serve as a wife and mother. All human laws must bend to “the law of the Creator”; any notion of equality between men and women is silly and even dangerous. No wonder that when Charlotte E. Ray completed her law studies, Howard University disguised her gender by putting her forward for the bar in Washington, D.C., as “C. E. Ray.” Under that name she was accepted to practice law.47
The Bradwell decision channeled both sides of a significant cultural shift toward inequality. Christians had long perceived women as the cursed descendants of Eve, collectively tarnished by her guilt in the expulsion of humanity from the Garden of Eden. God made women inferior and subservient to men; proposing otherwise was heresy. The growing acceptance of the theory of natural selection made a literal reading of the Bible unpopular with the educated elites. However, like religion, evolution could be forced into a misogynist track with ease, as gendered divisions followed from the very structure of nature. In the late nineteenth century, an opponent of equality could easily turn to either sacred or secular sources for validation.
Neither these religious nor scientific approaches to inequality went unchallenged. Stanton questioned the theological diminishment with The Woman’s Bible, while brilliant women scientists challenged the superficial reading of natural selection, beginning with Antoinette Brown Blackwell’s groundbreaking The Sexes Throughout Nature in 1875. Stanton called on women to study religion for themselves rather than follow the lead of male ministers, while Helen Hamilton Gardner made the empirical case for equality, famously challenging other scientists to determine gender or race by examining human brains. Evolutionary theory allowed women to imagine alternative gender relations, if only because science, unlike religion, is premised on skepticism, evidence, and change. Research over the past hundred years has validated much of Blackwell’s and Gardner’s analysis, as scientists who have examined the actual workings of the human brain have found similar biological and chemical processes. Men (including some Harvard presidents), being slow learners, rejected the evidence of cognitive equality well into the twenty-first century.48
A further sign of the retreat from equality by legal scholars and jurists came with the publication of the Revised Statutes of the United States by a congressionally appointed commission in 1874. This work was part of the larger project to create a more professional legal practice, one based on education in elite law schools. Though very thorough, the Revised Statutes somehow did not include the Civil Rights Acts. As lawyer and judge Francis Biddle would later write, the new compilation “concealed the whole scheme for the protection of rights” established by the Reconstruction amendments as well as the five congressional enforcement acts. Human equality was not a matter with which a law student must concern himself—and as Bradwell v. Illinois clarified, they would all be men.49
Starting in 1873, the Supreme Court essentially transformed the Thirteenth and Fifteenth Amendments into fossils, and the Fourteenth into a tool protecting the rich. The framers of the amendments intended to put an end to a caste system and protect the legal equality of all Americans. They did not anticipate reactionary judges deliberately ignoring or misreading the clear language of the amendments.
The Supreme Court’s decisions affected every level of legal action. For instance, in 1874 a black man beaten by a group of whites for having the temerity to testify in a trial attempted to attain justice by bringing a lawsuit against his attackers. Following the High Court’s guidance, Judge William B. Woods dismissed the case as concerning actions taken by individuals, not by the state or federal government. In 1875 the Supreme Court applied the same logic in the notorious Cruikshank decision. A white mob that included several local officials slaughtered some one hundred black men in Louisiana. The unanimous court ruled that murder, no matter what the scale and despite any racial motivation, remained a state matter. The Court therefore determined that the Enforcement Act of 1870, which prohibited conspiracies to deny civil rights, violated the Constitution. The federal government can do nothing if private individuals, even when acting through groups such as the Ku Klux Klan, conspire to take away the lives and rights of others. The national government can only act if a state government actively supports a conspiracy; not even the involvement of state officials offers sufficient cause for federal intervention. The Court acted on the legal fiction that the states will protect all their citizens.50
The Supreme Court abandoned Reconstruction entirely in 1876 with U.S. v. Reese, in which the court effectively terminated the enforcement of the Fifteenth Amendment. Chief Justice Waite ruled that the federal government can act only to prevent intentional racial discrimination and lacked any authority over suffrage. Incredibly, he argued that “the Fifteenth Amendment does not confer the right of suffrage upon any one,” but only protected an individual from having his vote taken away because of race. States are free to deny the vote for other reasons, effectively permitting them to institute a number of subterfuges to limit the black vote and undermine democracy. The Fifteenth Amendment may have given black men the right to vote, but it did not require the states to accept those votes. The federal protection of individual rights practically disappeared—except, as it would soon develop, in the case of large enterprises.51
By 1880 the Supreme Court existed in a fantasy world of its own construction. That year, in Virginia v. Rives, the Court considered challenges in a Virginia county where no black had ever sat on a jury, and refused to see that exclusion as an act of bias. Not only did the Court find no right to sit on a jury, but it also insisted that the state of course protected the rights of all citizens; for what possible reason would it do otherwise? The Court further undermined any efforts to promote equality with U.S. v. Harris in 1883, declaring unconstitutional the part of the Ku Klux Klan Act that made it unlawful to conspire to deprive anyone of the equal protection of the law. Responding to a white Tennessee mob that lynched a black man, the Court reasoned that the Constitution protected blacks from enslavement, not death. In combination with the Cruikshank decision, U.S. v. Harris illuminated the Court’s refusal to allow the government any responsibility in protecting the civil rights—and lives—of American citizens.52
To address the Court’s rulings and white supremacist violence, Congress made one final attempt to defend equality before the law with the Civil Rights Act of 1875. This act gave the federal government the power to defend the lives and legal rights of all citizens, including their access to public facilities and a right to sit on juries. As Representative Benjamin Butler observed, this legislation sought to correct the Supreme Court’s constitutional interpretation that the federal government could protect its citizens anywhere in the world, except in the states.53
In 1883 the Supreme Court dashed these hopes by declaring the Civil Rights Acts unconstitutional, allowing southern legislatures to institute legal segregation. Justice Bradley argued that Congress, in trying to enforce the Fourteenth Amendment, had violated the Tenth by extending its reach into private matters. The Court adhered to its earlier logic that the Fourteenth Amendment applied only to state actions, not private ones, while the Thirteenth Amendment had successfully ended slavery and was therefore now moot. Bradley had no tolerance for the “badges of servitude” argument, holding that after eighteen years more than enough time had passed since the end of slavery and now it was time to move on. Any reading of bias or legal limitations was self-imposed, not the result of public policy.
Justice John Marshall Harlan, a former slave owner, issued an insightful lone dissent that reverberated through the courts a few generations later. Harlan charged that the Court overstepped its authority in overturning laws well within the power of Congress, which had the responsibility to enforce the amendments. Further, private discrimination required the support of the law to persist. He charged the Court with sacrificing “the substance and spirit of the recent amendments” by a careful manipulation of language. If the Court took away the power of Congress to protect the nation’s citizens, Harlan wrote, then the Reconstruction amendments would become little more than “splendid baubles, thrown out to delude those who deserved fair and generous treatment at the hands of the nation.”
For Harlan, the Court had entered upon “an era of constitutional law, when the rights of freedom and American citizenship cannot receive from the nation that efficient protection which heretofore was unhesitatingly accorded to slavery.” The Court had thus effectively turned the clock back to Dred Scott, if with friendlier language. Taney had denied that blacks could be citizens, while the current Court found that blacks could be citizens without rights. Harlan called the High Court delusional if it believed that the former Confederate states would protect the rights of their former slaves. White southerners feared democracy and hated equality, and they put up a variety of façades, frauds, and falsehoods to justify their racism; by overturning the Civil Rights Act, the Supreme Court validated their lies.54
In essence, the Supreme Court amended the Reconstruction amendments into irrelevance, except for business interests. In 1886 the Court heard a challenge to a section of California’s state constitution denying railroads the right to deduct mortgage debts from their taxable wealth. Lawyers for the Southern Pacific Railroad argued that corporations should have the same rights as people. Humans could deduct their mortgage payments, and so should corporations. For support, the railroad cited the equal protection clause of the Fourteenth Amendment.
Writing for a unanimous court, Justice Harlan focused narrowly on the railroad’s fences, which California had included in its assessment of the railroad’s property value. Including the fences led to an invalid assessment, Harlan argued, since California’s constitution failed to mention fences. Harlan offered no response to the defendants’ Fourteenth Amendment argument. The case might have rested there, as an obscure tax case, had not the court’s reporter, Bancroft Davis, a former railroad president, added a headnote implying that the court agreed that “corporations are persons within the meaning of the Fourteenth Amendment.” Santa Clara Co. v. Southern Pacific thus became an accidental precedent setting the standard for applying the Fourteenth Amendment to corporations, though rarely to people.55
This interpretation of the Fourteenth Amendment had an enormous impact on American life. State and federal courts lost sight of the intent of the Reconstruction amendments to end legally sanctioned class or caste distinctions and remove race as a legal category in order to integrate blacks into civic life. The Slaughterhouse Cases limited the amendments’ applicability, while the Civil Rights Cases of 1883 blocked the ability of the federal government to act. Thanks to the Supreme Court, the Thirteenth Amendment ended slavery and nothing more; the Fourteenth Amendment left most rights subject to state control; and the Fifteenth Amendment stood as a hollow promise of a right to vote, its enforcement left to the states. The nation’s courts treated people not as individuals, as seemingly required by the Fourteenth Amendment, but as members of groups determined by ethnicity, class, race, and gender. Along the way the very concept of equality vanished.
Emboldened by the courts’ indifference to legal equality, southern state legislatures, now firmly in the hands of the Democratic Party, began passing laws to keep the races separated. Starting with Florida in 1887, these Jim Crow laws eventually affected every aspect of southern society, from streetcars to hotels, theaters, water fountains, sidewalks, and marriage. Southern legislatures felt no constraint on their actions.
In 1893, the Supreme Court issued its ultimate insult to the Constitution in Plessy v. Ferguson. With Plessy, the Supreme Court set a standard of collective group equality—all blacks are treated the same, denied the same rights, and subject to the same legal restrictions.
The facts of the case are rather straightforward. The Citizens’ Committee of New Orleans recruited Homer Plessy, who was officially one-eighth black, to challenge Louisiana’s recently adopted segregation laws. The local railroad also opposed the law, as it required them to put on extra cars to prevent blacks and whites from riding together. Plessy, who easily passed for white, announced his defiance of the statute and was removed from the car and charged with violating state law.
Plessy’s defiance of Louisiana’s segregation laws raised numerous legal questions. Most basic was the seemingly simple matter of what makes a person white or black. Just how is race determined, and who gets to decide? The heart of the case was the Fourteenth Amendment. Plessy’s attorney, the pioneer civil rights activist Albion Tourgée, reminded the court that the Reconstruction amendments established freedom in the United States, protecting all citizens in their rights of citizenship, making the determination of race not just irrelevant but an insult to the Constitution.
The Supreme Court rejected Tourgée’s defense of legal equality 8 to 1. Writing for the majority, Justice Henry Billings Brown admitted that the Fourteenth Amendment did indeed intend to enforce “absolute equality,” but surely no one believed that it also “intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either.” Brown differentiated between “distinction” and “discrimination,” with the former acknowledging reality. He denied that a law establishing “merely a legal distinction between the white and colored races” undermined legal equality. Any perceived inequality had its roots solely in the mind of the individual; surely the state of Louisiana did not treat its black citizens as inferiors. Brown provided no evidence for his insistence that segregation hurt no one; he simply wrote that it “is too clear for argument.”
The Court maintained that it acted within the nation’s legal traditions, upholding the state’s police power, as well as respecting contemporary racial science. The Court must reject laws that “conflict with the general sentiment of the community,” though it did not specify what community or how to determine sentiment. The Reconstruction amendments had already done their work, having secured for all citizens equal rights and opportunity, and nothing more needed to be done. Racism and racial distinctions lay beyond the purview of any branch of government, and efforts to effect change would only worsen the situation for blacks and whites alike. Segregation did not violate legal equality since “if one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.” Eight justices declared themselves comfortable with “separate but equal” facilities regulated along racial lines.
As in the Civil Rights Cases, Justice Harlan filed a biting dissent, highlighting the Court’s refusal to address the reality of the nation’s long history of racism. The Court’s task was to determine whether a law that “regulates the use of a public highway by citizens of the United States solely upon the basis of race” is consistent with the Constitution. Harlan could find nothing in the Constitution that permitted any public authority to even determine the race of its citizens. Creating different racial categories violated the legal equality guaranteed to all citizens under the Fourteenth Amendment, as well as the personal liberty of all Americans.
Harlan patiently attempted to explain to his colleagues why the plaintiff included the Thirteenth Amendment as a justification for challenging segregation. That amendment did not just abolish slavery; it also “prevents the imposition of any burdens or disabilities that constitute badges of slavery or servitude.” The Court seemed to have trouble understanding that “the arbitrary separation of citizens, on the basis of race … is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution.” Harlan bluntly denied that such a perspective can be justified by anything in the Constitution. The Court had determined that the Thirteenth Amendment “decreed universal civil freedom in this country,” while the Fourteenth Amendment followed it up to secure “the dignity and glory of American citizenship” by protecting personal liberty. If enforced, these amendments would protect all Americans in their rights; but the Supreme Court refused to allow that enforcement. Harlan pointed out the obvious: that segregation aimed to protect whites from the company of blacks, not the other way around. The state had no duty nor right to enforce the separation of the races; if whites and blacks sat together, that was their business, not the state’s. Harlan correctly predicted that the Court was paving the way for many more acts diminishing the status of blacks.
Moving beyond a demonstration of the error of the majority opinion, Harlan put forth an alternative reading of the Constitution that he thought would protect all citizens. Given the language of the Constitution and its clear intent to promote human freedom, the United States should not have a distinctive ruling class. Harlan offered a powerful and succinct legal perspective premised on the conviction that the Fourteenth Amendment had freed the United States from a caste structure: “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful.”
The nation’s future success linked the two races together, Harlan insisted. The interests of all Americans “require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law.” The southern legislatures sought to overturn the “legitimate results of the war” by undermining the Reconstruction amendments, and they should not be assisted toward this goal by the Supreme Court. Rather than protecting the rights of citizens, Harlan charged, the Court acted to institutionalize racism through segregation, fostering further racial conflict and perpetuating the damage already done to the country by slavery. The Court evaded its responsibility by simply accepting the persistence of racial bias as unavoidable. Such an attitude was unworthy of the ideals of the Constitution and ignored the considerable social progress made during Reconstruction.
Compared to his colleagues, Harlan was a realist. He dismissed the “thin disguise” of separate but equal as unlikely to ever come into actual practice. The Court erred greatly in validating the state’s power “by sinister legislation” to regulate civil rights on the basis of race to the detriment of one group, who are placed “in a condition of legal inferiority.” Harlan warned that the Plessy decision would be seen as one of the Court’s great errors and would “prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case.”56
Rarely has a Supreme Court justice so clearly analyzed his contemporary society and correctly predicted the consequences of the Court’s actions. Plessy stands with Dred Scott as one of the worst decisions ever tendered by the Supreme Court. For more than half a century it condemned millions of Americans to second-class citizenship and scarred the United States in profound ways. The southern states played a careful game to avoid upsetting northern whites, denying rights in a way that always seemed to find support in the courts. For instance, they did not explicitly prohibit blacks from voting, so the Section 4 restrictions in the Fourteenth Amendment did not kick in; instead they used numerous subtle and not so subtle ways to prevent blacks from voting.
Reconstruction had briefly promised a democratic vision for the future of America. But opponents of legal equality, seeking to turn back the clock, quickly found a supportive power base in the federal courts. The courts even managed to undermine the Thirteenth Amendment. In 1867 Congress had passed an anti-peonage law to enforce the intent of the Thirteenth Amendment, but the courts blocked nearly every effort at enforcement. As a consequence, the southern states established a debt peonage system that has accurately been labeled “slavery by another name.” Into the 1930s, the southern legal system sold thousands of black men and women into a brutal system of coerced labor. As W. E. B. Du Bois wrote, “Slavery was not abolished even after the Thirteenth Amendment.”57
Plessy served as a powerful bulwark for all these inequalities, leaving it up to the states to work out their social relationships. Yet one phrase would stand out from Plessy v. Ferguson as a beacon for the ideal of equality, and it came from Justice Harlan’s eloquent dissent: “Our Constitution is color-blind.”
The Supreme Court completed the dismantling of the Reconstruction amendments with Hodges v. U.S. in 1906, with the majority eliminating protection even for the right of contract when it came to individuals rather than businesses. The case involved three white men who conspired to use violence to prevent a group of blacks from fulfilling their contractual work with a lumber mill. Justice David J. Brewer held that the nation had no interest in protecting jobs or contracts, which were private wrongs that had no bearing on federal rights. Once more Justice Harlan dissented, again pointing out that truly ending slavery meant eliminating the badges of servitude, which had been the intention of the Reconstruction amendments and several acts of Congress aimed at protecting civil rights. He also observed that in the Civil Rights Cases the Court admitted that making contracts was a fundamental civil right. The majority did not care about their previous decisions, declaring that state courts held exclusive power to determine violations of the Thirteenth Amendment, effectively circumscribing their own power and allowing slavery to persist.58
It is fair to say that for at least half a century after the Slaughterhouse Cases the Supreme Court appeared confused about the meaning of the Reconstruction amendments. In 1922 the Court ruled in the Prudential Insurance case that “neither the Fourteenth Amendment nor any other provision of the constitution of the United States imposes on the States any restrictions about ‘freedom of speech,’” leaving the states free to limit all forms of expression. Yet just three years later, in Gitlow v. New York, the same court ruled that “freedom of speech and of the press … are among the fundamental personal rights and liberties protected by the due process clause from impairment by the States.”59
In diminishing the reach of the equality amendments, the Supreme Court adopted the “state action” doctrine, leaving the regulation of citizenship rights entirely in the hands of the states. This reasoning held that the amendments prevented states from denying rights, but it allowed no mechanism for protecting those rights. Social Darwinism had so warped elite ideology that by 1900 the Fourteenth Amendment had become a legal safeguard of corporate capitalism. As Oliver Wendell Holmes Jr. wrote in an acerbic 1905 dissent in Lochner v. New York, “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics”—a foundational text for social Darwinists. The reactionaries triumphed; legal equality appeared dead, all were equal in their isolation, and only the powerful prospered.60
The betrayals littered the American landscape and blasted the nation’s future. Julia Ward Howe, the woman responsible for one of the most stirring patriotic songs of the century, “The Battle Hymn of the Republic,” felt that sense of shattered hopes and abandoned ideals. Before the war she had questioned the purpose of a woman’s life, asking if in marriage and child-rearing “we lose our own vitality, and sink into dimness, nothingness, and living death.” The Civil War saved Howe from the living death of marriage, giving her purpose and work. At the war’s end she wrote that in her twenty-two years of marriage, “I have never known my husband to approve of any act of mine which I myself valued.” He found every act of hers “contemptible … because it was not his way of doing things.” When equality eluded women, she fought for the Fourteenth Amendment; when that still did not secure women the rights they so clearly deserved, she devoted the remainder of her long life to battling for the right to vote, becoming president of the American Woman Suffrage Association and founding the Association for the Advancement of Women.61
Women who had devoted enormous energy to the Union cause felt deeply betrayed by the Reconstruction amendments. As Elizabeth Cady Stanton wrote, when abolitionists and Union leaders “asked us to be silent on our question during the War, and labor for the emancipation of the slave, we did so,” giving over all their time and energy to winning freedom and civil rights for black men. With time Stanton came to feel this policy had been “a blunder” of historic proportions. They kept expecting their male allies to fulfill what they thought of as a fair bargain, but it did not happen in their lifetimes.62
Similarly, black women expected but did not receive much support from the majority of black men. When Frances Harper spoke in New Orleans in favor of women’s rights, The Louisianan—edited and published by P. B. S. Pinchback, the first African American governor—declared itself “struck dumb with consternation.” Black women were expected to conform to masculine desires, as The Louisianan indicated with such poems as “A Woman As She Should Be,” which advised: “Submission to her husband’s will / Her study is to please him still.” Frederick Douglass tried to dissuade Monroe A. Majors from writing his book Noted Negro Women, since he did not think any of them that notable. When W. E. B. Du Bois, Paul Dunbar, and Francis Grimké organized the American Negro Academy, they limited membership to men.63
Yet many black women did not passively accept male direction. Anna J. Cooper, who was born into slavery in 1858 and received a master’s degree in mathematics from Oberlin in 1887, captured the excitement felt by many talented young black women in the aftermath of the Civil War: “Everything to this race is new and strange and inspiring.” She felt a sense of excitement and increased consciousness of her own abilities: “I can aspire to that! I can honor my name and vindicate my race!” Cooper would do more than just vindicate her freedom; she would go on to earn a doctorate in history from the Sorbonne and become a prominent scholar. She, too, persisted.64
In its early years, the women’s rights movement aimed for full legal equality. They assumed that such equality would of course lead to the right to vote, as well as to protection for women’s right to bodily autonomy, property rights, the right to hold jobs and public office, the right to enter into contracts and sue, and all the other markers of full citizenship. But those adhering to traditional cultural values found the whole package a threat to the moral and natural order. Female equality, they charged, would lead to free love, the corruption of the institution of marriage, the collapse of the family, and the end of civilization.
In combating these apocalyptic fears, the advocates of women’s rights slowly moved to a focus on suffrage alone. They did not abandon their other goals, but they trusted that once women could vote, the other rights would follow. Women leaders, finding their egalitarian arguments gaining no traction, switched to a position based on difference: more moral than men, women would serve as a balance wheel in the polity. This shift appeared less threatening in a general way, as it did not call into question preexisting gender relations. Opponents of women’s suffrage took the proponents’ argument and turned it back on them: women are more moral and should therefore be protected from the corruptions of the public sphere. As the women’s rights movement weakened, so did the public perception of women. The image of the rugged frontier woman or heroic wartime nurse gave way to the fragile flower of the boudoir, weak in mind and constitution, prone to fainting spells and irrational emotions. By the end of the nineteenth century, women’s role in popular culture rarely rose above the damsel in distress, and most men thought the suffrage movement had died out.65
Many male leaders of the crusade for equality fought on through public indifference. Charles Sumner continued his struggle for civil rights until his death in 1874, just as the North began losing interest. Frederick Douglass reached peak prestige in 1877 with his appointment as the first African American marshal in the nation’s history. But at the same time his tension with the women’s rights movement intensified. At the 1876 Republican convention in Cincinnati, Sarah Spencer, the nation’s first lobbyist for women’s rights, confronted Douglass after he failed to mention women’s suffrage in his speech, as he had promised. Douglass lamely demurred that he had forgotten to do so. He may have been myopic regarding women’s rights, but Douglass recognized the persistent inequality suffered by blacks and bitterly denounced “the So-Called Emancipation as a Stupendous Fraud.” He continued to fight for black rights until his death in 1895, though he watched in horror as violence against blacks rose every year.66
In 1890, the courageous Ida B. Wells, just twenty-eight, began documenting that racial violence in her journal, Free Speech, castigating lynch mobs as an “awful indictment against American civilization.” Reporting on blacks burned at the stake by white mobs, Wells wrote, “No other nation, civilized or savage, burns its criminals; only under the stars and stripes is the human holocaust possible.” In 1896, the year of Plessy, black women met in Washington to organize the National Association of Colored Women. The oldest woman present, Harriet Tubman, introduced Wells as the movement’s new firebrand. In passing the torch to a younger generation, Tubman promised that the struggle for equality would continue.67
In many ways, Carl Schurz’s tour through the South in 1885 best exemplifies shifting attitudes among white progressives. Twenty years earlier, Schurz had condemned the racist intransigence of southern whites and called for federal intervention to protect the freedmen. In 1885 he saw a South rapidly segregating and thought it not such a bad idea. Southern whites reassured him that the blacks just needed more education, which they insisted they were providing. With time all would be well. Schurz fell for their twaddle without question.68
At the dawn of the new century, Schurz reconsidered what the southern whites had put in place since the end of Reconstruction. He now recognized that white supremacists had created a despotism that violated nearly every part of the Constitution, and most certainly the Reconstruction amendments. As under slavery, the South had no true freedom of speech or assembly, for either whites or blacks. The southern elites burdened “the Southern people with another ‘peculiar institution,’ closely akin to its predecessor in character.” Once more, most workers, white and black, were “kept in stupid subjection, without the hope of advancement and without the ambition of progress.” The repressive society of the antebellum South had been restored, just without the legal institution of slavery. Schurz saw that in 1885 he had been completely fooled by southern whites telling him exactly what he wanted to hear. By 1905 it was too late to change a system that the same whites now insisted was “natural.”69
The last congressional effort to protect legal equality came in 1890, when the patrician Massachusetts representative Henry Cabot Lodge proposed federal supervision of congressional elections. This bill empowered the president to send in the military to secure free and fair elections if federal monitors found evidence of intimidation, discrimination, or fraud. Lodge insisted that Congress must protect southern blacks in their right to vote. The United States had changed its Constitution to make black men citizens. A government that would not defend its own citizens was weak and contemptible: “A failure to do what is right brings its own punishment to nations as to men.” Not a single Democrat voted for the bill, which passed the House only to be subjected to a staggering thirty-three-day-long filibuster in the Senate before Republicans finally dropped the bill as a lost cause.70
After Reconstruction came the battle for history, the struggle to craft the narrative that would determine the future. On this field of battle, the Confederacy emerged victorious. In the early twentieth century, advocates of the Confederate rewriting of the nation’s history found a powerful advocate in Woodrow Wilson. As a popular historian, Wilson promoted the vision of slavery as a benign institution in a romantic “Old South” and of a corrupt Reconstruction that forced the “Redeemers” to save civilization by organizing the Ku Klux Klan and reclaiming government by and for white males. When he became president in 1913, Wilson set about turning back the clock, segregating the federal civil service and public buildings and ending all federal efforts to protect civil rights. On the fiftieth anniversary of the Battle of Gettysburg, Wilson went to the place were Lincoln had promised “a rebirth of freedom” and assured an all-white audience—no black veterans had been invited—that he would not be so impertinent as to address the war’s significance.
Inequality corrupted every aspect of American life. The notion of women as in any way equal to men largely disappeared, as did any pretense that those not blessed with a WASP heritage could ever aspire to the glories of the master race. Communities felt completely justified in punishing those who strayed over the approved lines. The examples are numerous and often violent. In 1911 the state of Maine evicted an interracial community living peacefully on the island of Malaga, subjecting many of these citizens to forced sterilization to ensure that they would bear no more children. The racist science of eugenics justified the routine involuntary sterilization of those identified as less fit, becoming a model cited by Adolf Hitler and upheld by the Supreme Court in Buck v. Bell (1927). Popular culture routinely mocked every ethnicity outside northwest Europe while demoting non-white races to subhuman status.
The Civil War engendered government action and a conviction that the nation could solve its problems through legislation. For a brief period it appeared that the government stood firmly on the side of the people. Those seeking equality longed for a coherent and predictable system of law and the security it offered. The Supreme Court effectively alienated them from the law for generations, making the majority of Americans suspicious of law enforcement. Crimes went unreported, witnesses would not cooperate, charges were not pressed, police operated as repressive agents in numerous communities, and the legal system became a stultifying servant of the privileged.
Legal equality is more than just an abstraction; it is a protector of life and liberty. By 1900 that protection applied only to a specific class of Americans within a highly unequal society, creating the nation James Madison had feared, a republic corrupted by the tyranny of the majority—though in this case it was a self-proclaimed rather than numerical majority. Minorities of every kind—and even the majority, who were women—lived at the mercy of the white male “majority.” Faced with the negation of their rights and freedoms, minorities had no choice but to turn to their home states for protection. Yet those states not only had no interest in their defense but often were the agents of the very crimes needing redress. A white man who took the life of a black would almost never be prosecuted. Women, Chinese, Hispanics, Japanese, blacks, Native Americans, the poor, the homeless, recent immigrants—anyone whose rights were violated had no place of refuge. Once more, equality had become just a dream, with little hope for its realization. Yet within the Constitution’s Fourteenth Amendment the possibility of change lay dormant, just waiting for a society that would recognize the promise of those two words: “all persons.”