THAT THE RIGHT TO VOTE MIGHT NOT BE WHAT IT seemed began to come clear in April 1876, when the Supreme Court issued its first ruling that bore directly on the voting rights of African Americans.
In January 1873, William Garner, described by the Court as a “citizen of the United States of African descent,” went to the tax collector in Lexington, Kentucky, to pay his poll tax of $1.50. Garner was employed, literate, and without a criminal record, and therefore could not be disqualified to vote in the state on any legal grounds. But the tax collector refused to take his money. Without a receipt for payment, Garner would be denied access to the ballot box in any election that year.
Tax collectors in Kentucky had come to regularly employ such a tactic to keep black men off the voting rolls. Garner next went to the office of the local election inspectors, Hiram Reese and Matthew Foushee, both white, and demanded a ballot for an upcoming municipal election.
Reese and Foushee refused, because, they said, Garner had failed to pay his poll tax. But Garner had come prepared and presented the two with an affidavit that he had attempted to pay the tax but had been turned away. The inspectors refused to accept the document.
That refusal just happened to be a specific violation of the Enforcement Act of 1870, which required all persons and officers in the electoral process “to give citizens of the United States the same and equal opportunity to . . . become qualified to vote without distinction of race, color, or previous condition of servitude.” If an election official refused to allow any citizen to perform an “action required for voting,” the citizen could present an affidavit that would qualify him.1 Anyone convicted at trial—in federal, not state court—of denying equal access to the ballot box would be required to pay the person he wronged $500, and be liable for a jail term of up to one year.2 Garner filed a complaint with federal officials asking those penalties be applied to both Reese and Foushee.
Garner’s appearance at the tax collector’s and election offices, as it turned out, had been part of a plan by Kentucky Republicans to ensure that black citizens were not turned away from the polls by white election officials. The local United States Attorney, G. C. Wharton, who had previously taken enormous risks by ignoring death threats and prosecuting Kuklux members, had set the plan in motion. He had been assured of federal support by the new attorney general, George Williams.
After their refusal to register Matthew Garner, Wharton obtained a three-count indictment against Reese and Foushee from a grand jury in Louisville, meaning the two would be forced to travel there in order to stand trial. The first and third counts referred specifically to Garner, but the second referred to the general practice of refusing black registrants without a receipt from the clerk, whether or not the applicant had attempted to pay the tax.
Reese and Foushee’s lawyers were forced to resort to some creative hall-of-mirrors reasoning for their defense. “They claimed that Garner’s mere offer to pay the tax was insufficient to discharge him from the statutory requirement of actually paying it . . . therefore the defendants lawfully refused to allow Garner to vote because of his failure to meet the statutory requirements for voting.”3 As such, their refusal to register Garner did not fall under the Enforcement Act, and therefore should not be in federal court.
United States v. Reese, as the case came to be known, became as much a political fight as a legal one. Democrats growled that Reese and Foushee were being persecuted, “dragged all the way to Louisville at great expense to themselves and to the government to stand trial before strangers rather than their neighbors.”4 Republicans countered that those “neighbors” would be all too happy to acquit two men who had blatantly broken the law in the name of white rule.
The government countered by assigning two special prosecutors, one of whom was a close friend of Wharton’s and who would later make a name for himself as an associate justice of the Supreme Court—John Marshall Harlan. Harlan had run for governor of Kentucky as a Republican and, although he lost, amassed more votes than any Republican ever had.
The trial, in United States Circuit Court, soon focused on just how much power the federal government had to define election standards for state and local governments. That, in turn, became a question of language—just what, exactly, did the Fourteenth and Fifteenth Amendments say? The circuit judges could not agree on specifics, so the case was referred to the Supreme Court.
Although the roster of associate justices on the Court was the same as for the Slaughter-House Cases, there had been a significant change at the top. The universally respected Chief Justice Salmon P. Chase had died in May 1873 and been replaced by Morrison R. Waite, a man who was viewed quite differently. In fact, never had a chief justice reached the Court as a lower choice of the president who nominated him, or with less impressive credentials.
With Chase gone, Ulysses Grant came under pressure to appoint a replacement of equal stature and reputation. Some thought Grant would nominate one of the other justices—most of whom wanted the job—while others felt that he would ask a prominent lawyer to take the job, while still others insisted it would be a member of Congress.
But Grant dithered. Summer gave way to fall, but still the president refused to name a successor. With every passing week, the nation became more impatient. Democrats accused Grant of not caring enough about the most important court in the nation, while Republicans declared that he was taking his time so he could choose the best, most honorable, most qualified man available.
Instead, he chose one of his closest friends. In early November, Grant nominated Senator Roscoe Conkling of New York, a consummate political infighter, and also perhaps the most feared and powerful politician in the nation. Before submitting Conkling’s name to the Senate, Grant wrote to him on November 8, 1873, to offer him the job. “When the Chief Justiceship became vacant, I immediately looked with anxiety to some one whose appointment would be recognized as entirely fitting and acceptable to the country at large. My own preference went to you at once.”5 This after waiting six months.
Roscoe Conkling was many things, but a fool was not one of them. Moving to the Supreme Court, even as chief justice, would diminish his vast power in government. He declined the appointment, a move many thought was fortunate for both the Court and the nation.
With Conkling unwilling to serve, Grant cast about for a replacement. On December 1, he again “stunned the nation” by nominating his attorney general, George Williams, who was almost immediately attacked as a “legal mediocrity” and “a weak if not corrupt politician.”6
Democratic newspapers were fierce in their criticism—The Brooklyn Daily Eagle described Williams as “knowing little of all law and less than that little of the law requisite for the Government cases”—but a surprising number of the Republican newspapers were highly critical as well. The Evansville Courier observed, “Judicial positions in the United States at the present time seem to be going begging, and legal talent and judicial ability is a lamentably scarce commodity . . . Williams is, without doubt, an obscure lawyer . . . recognizable only as one of the White House flunkeys, and is about to reap the reward of the faithful servant in that connection.”7
Republican senators showed their displeasure by sitting on their hands; they refused to vote and instead sent the nomination to the Judiciary Committee for “consideration.” After weeks, an embarrassed George Williams asked the president to withdraw his name. He later justified his critics’ assessment by being forced to resign as attorney general when his wife was accused of taking bribes so that Williams would drop a pending prosecution.
Grant then chose seventy-three-year-old Caleb Cushing, a man of high repute for intelligence, who had served as attorney general under Franklin Pierce. His sympathies were not totally clear, however. He would not have gone to war, even to keep the Union together, and certainly not to free slaves. He also had a reputation as a man who would “place political opportunity before principle.”8 But Cushing did not provoke strong opposition. Just when it appeared that President Grant had finally found a nominee that would be successfully confirmed, however, an “anonymous source” reported that in 1861, Cushing had sent a very friendly letter to Jefferson Davis, president of the Confederate States of America, accepting the split in the Union as “accomplished fact.” Grant then found the letter itself and immediately withdrew Cushing’s nomination.
Grant decided that his next nominee would have no trouble being confirmed, because he would choose someone no one in Washington had heard of. He found his man in Toledo, Ohio. George Williams observed that the new nominee was “supposed to be sufficiently obscure to meet the requirements of the occasion . . . at the time of his appointment had never held a federal office, had never argued a case in the Supreme Court, and was comparatively unknown in Washington.”9
This was Morrison R. Waite. A successful lawyer who had occasionally appeared at the fringes of politics—the one time he ran for office, he lost—he was so surprised when he received the telegram informing him of his nomination that he had to confirm its veracity. To those few who had heard of him, Waite was unimpressive. Lincoln’s secretary of the navy, Gideon Welles, remarked of Waite that “It is a wonder that Grant did not pick up some old acquaintance, who was a stage driver or bartender, for the place.”10 The Nation added, “Mr. Waite stands in the front rank of second rank lawyers.”11 Perhaps because Congress was now too fatigued to object, Waite was unanimously confirmed and took his seat on March 4, 1874.
He was not greeted warmly by his fellow justices. Not only had they been passed over for the seat Waite now held, but most of them regarded their new boss as an undeserving plodder. The only one of his colleagues who extended Waite any courtesy was Joseph Bradley, who invited the new chief justice and his wife to dinner their first night in the nation’s capital. It was to be a friendship of enormous consequence for the nation.
Bradley, who had been on the Court since 1870, was everything Waite was not. He was considered one of the most technically proficient legal scholars ever to occupy a seat on the high bench, yet where Waite was affable and social, Bradley was introverted and described himself as “cold and stoical; willing to do favors without caring for the objects of them, and willing to receive them without making very intemperate demonstrations of gratitude.”12 Other than mathematics and chess, he had almost no outside interests. A dour, meticulous man with a love of mathematics and an obsession with order, detail, and punctuality, Bradley had “an extreme interest in control over his environment” and was “unconcerned with people, social life, or material rewards. His views tended to be rigid and at times narrow.”13
But it would be difficult to describe Bradley better than he described himself. He recounted to one of his few friends, Cortland Parker, the rigorous routine of rising, eating, working, and going to bed at precisely the same time every day.
My habits are these: having sat up till 12 or thereabouts, I don’t rise till 7. I then drink a glass of camomile water—dress, etc. and at 7 1/2 go into my study across the hall, and put on a pot of coffee (which is saved for me the day before) on the gas, and when hot—fill a large cup having cream and sugar in it—and drink it. Whilst drinking my coffee, an egg is boiling in the same gas jet—which I next dispose of. At 8, I am ready to go to work. At 9, I go down to family breakfast, and eat just one heaping tablespoon of mush (oatmeal, wheaten grits, or fine hominy) with cream and sugar, and return to my study. At 11 1/2 get into the coupe or carriage and go to the court which sits from 12 to 4. Return by 4 1/2 and lounge or take a walk, and dine at 6, generally light, on mutton, poultry, etc. I often take lunch at court about 2—of 6 broiled oysters, or a bowl of milk with a cracker or two. After dinner I return to my study, and generally work or read till midnight often topping it off with a glass of whiskey and water.14
Just weeks after Morrison Waite took his seat, Bradley turned that logic, thoroughness, and attention to detail to the language of the Fifteenth Amendment, the very question that would lie at the core of United States v. Reese.
In those days, each Supreme Court justice also “rode circuit,” spending part of the year as a judge in United States Circuit Court in a specific part of the nation. Bradley’s assigned territory included Louisiana, and there he sat in on an explosive case stemming from what would become known as the Colfax Massacre.
On Easter Sunday, April 13, 1873, upwards of 150 heavily armed white men, most on horseback, some dragging a four-pound cannon, converged on the courthouse of Colfax, seat of Grant Parish, in central Louisiana. In and around the courthouse were approximately 150 black defenders, also armed, but with antiquated, barely functioning shotguns, awaiting the invasion behind hastily constructed barricades. The confrontation had been precipitated by a disputed gubernatorial election in which both the Republican, a carpetbagger, and the Democrat, a former Confederate officer, had been declared the winner. The issue was decided in the Republican-controlled courts with a predictable outcome.
After the white men besieged the courthouse, whether they offered terms of surrender was never totally clear. Once the shooting started, however, it became apparent that the outgunned African American defenders had no chance. In short order, they gave up. After their weapons had been confiscated, the white invaders proceeded to slaughter their captives. As many as one hundred black men were shot, stabbed, or burned to death in the courthouse. Afterward, the whites claimed the blacks had fired on them after the surrender, killing a Captain Hadnot, but that seemed unlikely since the bullet that killed Hadnot had entered at an angle that could only have come from friendly fire.
Aware that Louisiana, even under a Republican governor, might not respond energetically to the killings, the federal government moved to charge members of the band with conspiracy under the very same Enforcement Act of 1870 that was used in Reese. In this case, the charges came under a part of the law that applied criminal penalties to activities that could be seen as interfering with the exercise of a person’s constitutional rights. Ninety-eight of the white invaders were charged with banding together with the intent of depriving the black men of their First Amendment right of free assembly. Only three men were convicted, and they appealed in circuit court, where Justice Bradley had decided to participate.
The three convicted murderers had based their appeal on the wording of the Fourteenth Amendment, which said no state could deprive any person of life, liberty, or property without due process of law, or deny any person equal protection of the laws. That meant, they claimed, that the amendment did not apply to the behavior of ordinary citizens, and that the Enforcement Act—which applied to individuals and not states—exceeded the federal government’s authority. Controlling the behavior of individuals—prosecuting “ordinary crimes”—was solely the responsibility of state governments.
Justice Bradley’s response would alter the course of American history.
There were occasions, Bradley wrote, in which the federal government could control the behavior of private citizens, but some very specific conditions had to be met. The only time the federal government could pass “positive laws” to protect individual rights was if that right did not exist before the Constitution defined it. The notion of “new rights” versus “old rights” was as confusing to most lawyers as to everyone else, so to illustrate his point, Bradley gave some examples.
One was the Fifteenth Amendment.
“The Fifteenth Amendment confers no right to vote,” Bradley wrote. “That is the exclusive prerogative of the states. It does confer a right not to be excluded from voting by reason of race, color or previous condition of servitude, and this is all the right that Congress can enforce.”15
Bradley’s pivot was precisely what Bingham and Sumner had feared, and totally changed both the amendment’s meaning and its potential as a tool for the federal government to protect black voters. Under Bradley’s definition, if an African American was threatened, beaten, and his house burned to the ground in order to terrorize him into not voting, and the state refused to prosecute the offenders, the federal government could do nothing, unless the victim could prove that the actions were motivated only by race. He had therefore transferred the burden of proof from the state, to demonstrate it had not discriminated, to the individual whose right to vote had been denied, to demonstrate it had. That task was difficult enough, but it also had the potential, which was realized, to become virtually impossible depending on the standard of proof the Court would require.
In this one opinion, Joseph Bradley had strangled the equal rights guarantees of not one but two constitutional amendments. He also freed the three murderers, leaving the government to appeal to the Supreme Court, where they would again argue the case before, among others, Justice Bradley. That case, United States v. Cruikshank, would be decided the same day as United States v. Reese. If Bradley’s reasoning held up in Supreme Court, it would establish a precedent that all lower courts would be required to follow.
Which was precisely what occurred on March 27, 1876. Although Morrison Waite would write both opinions, each came from the cold, measured mind of Joseph Bradley.
In Cruikshank, Waite wrote, “The fourteenth amendment prohibits a State from depriving any person of life, liberty, or property, without due process of law; but this adds nothing to the rights of one citizen as against another.” Waite added that the First Amendment right of assembly “was not intended to limit the powers of the State governments in respect to their own citizens, but to operate upon the National Government alone.” As a result, “for their protection in its enjoyment . . . the people must look to the States. The power for that purpose was originally placed there, and it has never been surrendered to the United States.”16 So, despite what the drafters of the amendment had intended and what those ratifying the amendment thought they were agreeing to, the Bill of Rights applied to the federal government only, not the states.
In Reese, Waite lifted Bradley’s language almost verbatim. “The Fifteenth Amendment to the Constitution does not confer the right of suffrage, but it invests citizens of the United States with the right of exemption from discrimination in the exercise of the elective franchise on account of their race, color, or previous condition of servitude, and empowers Congress to enforce that right by ‘appropriate legislation.’”17 From there, the question became what Congress may or may not do to enforce the amendment. “The power of Congress to legislate at all upon the subject of voting at state elections rests upon this amendment, and can be exercised by providing a punishment only when the wrongful refusal to receive the vote of a qualified elector at such elections is because of his race, color, or previous condition of servitude.” And because the third and fourth sections of the Enforcement Act of 1870 were not “confined in their operation to unlawful discrimination on account of race, color, or previous condition of servitude,” they were “beyond the limit of the Fifteenth Amendment and unauthorized.”
And so the rule of “state action” passed into the jurisprudence. Neither decision was criticized at the time, since it seemed that the language was straightforward enough and matched the wording of the amendment. But dig a bit deeper and the notion becomes a good deal fuzzier. What, for example, constitutes the “state”? According to Bradley and Waite, it was a sort of disembodied entity, a product, words of a statute printed in law books. For if they expanded that definition to include people, such as the legislators or the governor who had approved such a law, how could not they also include those acting in the name of the state to administer it, like Reese and Foushee? But if they had accepted Reese and Foushee as state actors, they, as individuals, could not deny any person equal protection of the laws or due process of the law without running afoul of the Fourteenth Amendment. In other words, regardless of the statute they were administering, state actors would be forbidden to transgress the amendment’s guarantees. All of which would have made the Enforcement Act of 1870 constitutional after all.
To take the notion even further, does “state action” include “nonaction,” meaning if a state or any state actor refuses to protect its citizens, regardless of their color, are they then denying “persons” their Fourteenth and perhaps Fifteenth Amendment guarantees? In Cruikshank, did Louisiana’s refusal to act against the murderers grant the federal government the right to do so as a civil rights violation? There was nothing in either the amendments or the statutes to prevent the Court from choosing these interpretations rather than the more restrictive ones they did.
And so, while Waite and especially Bradley seemed simply to be applying cold, hard logic in Reese and Cruikshank, they were actually taking a subjective stance that by coincidence fell on the side of that era’s racial attitudes, and their own. In doing so, they enabled not only the intimidation and violence by which African Americans had been denied their rights, but also the contrivance and fraud that white supremacists had begun to turn to in order to achieve the same ends by less obvious and offensive means.
There were those who questioned the decisions, but their voices were not heard. In 1879, a Department of Justice attorney stationed in South Carolina wrote,
I have been forced by the unfortunate condition here, to give to Reese et al and Cruickshank et al my severest study. I made last spring a careful abstract with notes of these and all kindred cases and came to the conclusion then, which is much stronger now, that with the single exception of a few sections, relating to the election of federal officers, the federal election laws are a delusion and farce . . . [If white vigilantes] . . . break up meetings by violence, there is no remedy, unless it can be proved to have been done on account of race, etc., which can’t be proved . . . With colored men crowding my office, it is hard to make them understand my utter helplessness.18