IN 1874, WHAT REPUBLICANS HAD FEARED FOR A DECADE finally transpired—Democrats won control of the House. Although Ulysses Grant remained personally popular, an unbroken series of scandals and a crushing economic downturn did his party in. When the new Congress was sworn in on March 4, 1875, the House of Representatives would shift from a 199 to 88 Republican majority to a 182 to 102 edge for the Democrats, much of that margin emanating from the South. Since only a third of the Senate is up for reelection every two years, Republicans would keep control, but a 52–19 majority shrank to 42–28.1 At the next round of senatorial elections in November 1876, the Republican majority might easily disappear. With President Grant’s second term coming to an end as well, for the first time since before the Civil War, a Democrat would be favored to win the presidency.
Results were just as bad for Republicans at the state level. Despite three Reconstruction amendments, numerous acts of Congress, advocacy by Ulysses Grant, and an occupying military force, the combination of white terror and widespread voter fraud had reduced the number of secessionist states that would remain under Republican control to four—Mississippi, Florida, Louisiana, and South Carolina.
With the nation still feeling aftershocks of economic collapse from the Panic of 1873, a waning commitment to securing equal rights for freedmen shriveled up. Keeping the army as an occupying force in the South was a huge drain on the nation’s fragile finances, and many thought that, by now, freedmen should be able to fend for themselves. In addition, most whites continued to think of people of color as members of an inferior race, perhaps a different species altogether. Democrats had played into these feelings, running on an anti-Reconstruction platform in both the North and the South.
After the November 1874 disaster, the dwindling contingent of Radicals had only four months to pass any further equal rights legislation. Constitutional amendments were out of the question. They had been desperate to expand equal rights to everyday activities, such as eating in restaurants, going to the theater, or taking their families to public parks. Now it seemed an impossible task. Most of those Republicans who had survived had no intention of risking their tenuous hold on national office by supporting a law that would be unpopular with their constituents.
Charles Sumner had been at it since 1870, when he proposed a bill in which the federal government would specifically guarantee “equal rights in railroads, steamboats, public conveyances, hotels, licensed theaters, houses of public entertainment, common schools and institutions of learning authorized by law, church institutions, and cemetery associations incorporated by national or State authority; also in jury duties, national and state.”2 The notion of enforced integration in schools, churches, and cemeteries made most Republicans blanch. Sumner got nowhere.
Each year, Sumner had reintroduced his proposal, convinced that the Senate could not help but “crown and complete the great work of Reconstruction,” but each year his party rejected it.3 Then in March 1874, after a lifetime of trying to gain equality and justice for Americans of color, both slave and free, Charles Sumner died, his equal rights proposal seemingly dying with him.
But after the November 1874 elections, a strange thing happened. Championed by another Massachusetts congressman, Benjamin Butler—who had lost his own seat to a Democrat—Sumner’s bill began to attract supporters. Many of them were Republicans, especially in the House, who had not backed Sumner in the past for fear of losing their seats, but had now lost them anyway. Working tirelessly and overcoming a Democratic filibuster that reduced senators to “whiling away the hours by tearing newspapers to shreds [as] stale cigar smoke choked the air, and members sprawled on the unswept carpet,” Butler got Sumner’s bill passed by both houses of Congress, although the schools, churches, and cemeteries provisions had to be dropped.4 On March 1, 1875, three days before the new Congress would take office, President Grant signed it into law.
“An act to protect all citizens in the civil and legal rights,” which became known as the Civil Rights Act of 1875, was an expansion of enforced equality that was explosive in scope. Section 1 read,
All persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude.5
The law made violators liable for up to a $500 fine for each offense, payable to the person wronged, and, if convicted in criminal court, subject to a fine of between $500 and $1,000 and up to one year in jail. Section 3 gave federal rather than state courts jurisdiction over suits arising from the law and specifically granted federal officials powers of arrest over state officials who were in violation. Section 4 took aim at jury service and guaranteed that “no citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in court in the United States, or of any State, on account of race, color or previous condition of servitude.”
Passage of the Civil Rights Act evoked passionate response, although the direction of those passions was quite different depending on who one asked. Black Americans rejoiced and moved immediately to exercise their new freedoms. Hoteliers, theater managers, restaurateurs, tavern owners, and railroad agents were suddenly swamped by requests for first-class tickets, dress circle theater seats, front tables, or a beer at the bar. Most whites, however, were equally determined to continue to exclude African Americans from public accommodations whenever they so chose. Across the Potomac from the nation’s capital, the two principal hotels in Alexandria, Virginia, closed rather than be forced to rent rooms to people of color. (Both subsequently reopened when their owners realized that refusing blacks would not land them in any legal difficulty.) In Memphis, four African Americans demanded to be seated in the dress circle at a local theater. When the management grudgingly acceded, most of the white patrons walked out. In Richmond, African Americans demanded service in restaurants, a tavern, and a barbershop, but in each case were refused.
Sentiment in the North was equally mixed. The New York Times, which had praised passage of the Fourteenth Amendment in 1868 as “settling the matter of suffrage in the Southern States beyond the power of the rebels to change it, even if they had control of the government,” had a change of heart. “It has put us back in the art of governing men more than two hundred years,” an editorial growled, “startling proof how far and fast we are wandering from the principles of 1787, once so loudly extolled and so fondly cherished.”6
Not every newspaper felt the need to be so outraged. The Chicago Daily Tribune quietly, and correctly as it turned out, predicted the law would have little real impact. “At present, its effect will be mainly political. It will be used on the one side to retain the hold of the Republican party on the negroes of the South; on the other, to excite new opposition to the Republican party among the whites.” The writer added, “After the provision for enforced mixed schools had been eliminated from the bill, it became a comparatively insignificant measure.”
Each newspaper accurately predicted where the fate of the law would be decided. The Times, with Confederacy-era sarcasm, said, “The Supreme Court, in instances such as this, is the last hope of all who attach any value to that somewhat despised instrument, the Constitution of the United States.” The Daily Tribune agreed that the constitutionality of the bill would be settled in the Supreme Court and foresaw, again correctly, that the first challenges to enforcement would come from the North.7
While not applicable to voting regulations, the Civil Rights Act of 1875 gave white America an image of what genuine racial equality would look like; how, if black Americans were allowed to vote freely, they might be forced into close association with a race of people almost all thought inferior and bestial, and many doubted were human at all, at least in the same fashion as whites. And whites made their feelings clear, including many who had once favored black suffrage. Most white businessmen—and voting registrars—simply ignored the law, and those denying black Americans their new rights of citizenship enjoyed the almost total support of police, politicians, and the courts. African Americans found themselves rarely successful in expanding their access to mainstream American life. A law on the books, they had learned, meant little if those to whom it was meant to apply refused to obey it and authorities then refused to enforce it.
African Americans turned to the federal courts. Any number of lawsuits were initiated in the hope that at least some judges would be unwilling to ignore a law whose provisions were so specific. In this, they were again mistaken. While in some rare instances the suits were successful, the vast majority were not. Some federal judges avoided the issue entirely, citing “an impending decision by the Supreme Court,” even though the justices had not yet agreed to hear an appeal of the law.
Nor would they for five years. Then they would take an additional three years to issue a ruling. But during that time, the Court would not be idle. In a series of decisions, it would lay the groundwork for taking back from black people almost every right of citizenship that had been promised to them by the nation that had enslaved them.