CHALLENGES TO THE CIVIL RIGHTS ACT OF 1875 reached the Supreme Court in 1880, just after the Strauder and Rives decisions had been handed down, but Morrison Waite refused to schedule a hearing for another three years. Finally, on March 29, 1883, the justices heard arguments on the five appeals, which would be decided together and called the Civil Rights Cases.
As the Chicago Daily Tribune had predicted, none of the five cases came from the Deep South. One originated in California, where “a colored person [was refused] a seat in the dress circle of Maguire’s theatre in San Francisco,” and a second in New York City, where “a person, whose color was not stated, [was denied] the full enjoyment of the accommodations of the theatre known as the Grand Opera House.”1 The remaining three cases originated in Missouri, Kansas, and Tennessee.
Waite had given no reason for the delay beyond vague pronouncements of procedural problems, but by the time the cases were heard, the nation’s rejection of Reconstruction was near complete. Horatio Seymour, who had narrowly lost the popular vote to Ulysses Grant in 1868, wrote that while he would not “impeach the patriotism” of those who had implemented the Reconstruction programs, “in their eagerness to extend the jurisdiction of the General Government, they went too far, and exposed the country to unforeseen dangers.”2 Seymour was not alone. Even most Republicans had concluded that a good deal of the program had been a mistake. Much of the party had turned against African Americans, and Republican candidates were openly courting white votes in the South. C. Vann Woodward wrote, “The wing of the Republican party that raised the loudest outcry against Hayes’s policy of deserting the Negro promptly abandoned him and threw support to . . . any white independent organization available.”3
And so, when the Court was finally ready to rule on the constitutionality of the Civil Rights Act of 1875, no one expected it to be much of a contest. And as a matter of law it was not—the vote was 8–1. But as to larger questions, those of what America should stand for, whether or not honor was as important a national value as power, the Civil Rights Cases were quite a contest indeed. The main combatants were two of the justices, the seemingly ubiquitous Joseph Bradley (representing the eight) and the former Kentucky slaveholder, John Marshall Harlan (the one).
* * *
Harlan had come to the Court to replace David Davis. At first look, Harlan seemed exactly what those who accused Hayes of selling out black America would have expected. In addition to being raised in a family of slaveholders, he had opposed the Emancipation Proclamation, had spoken out passionately against the three postwar amendments, and, at age twenty-one, had joined the anti-immigrant, anti-black, anti-Catholic, semi-secret society called the “Know Nothings,” whose motto was “Put none but Americans on Guard.” As Harlan wrote later, “On the evening of my initiation, an oath was administered to me which bound me to vote only for native Americans, and, in effect, only for Protestants.”4 Harlan, at six foot two and 240 pounds, with a shock of red hair and a deep, booming delivery, was soon giving speeches all over Kentucky in support of the party’s nativist, bigoted agenda.
But Harlan, like Abraham Lincoln, was that rare man who was not afraid how he might look if he abandoned views he had held since childhood when he realized those views were wrong.
Harlan’s conversion began because he opposed secession. He campaigned tirelessly to keep Kentucky loyal—and Kentucky, although a slave state, remained in the Union—and when war did break out, he raised an infantry regiment to fight for the North. He was commissioned into the Union army as a colonel and distinguished himself in battle. Fighting arm in arm with German immigrants and Catholics, Harlan emerged from the war with his Know-Nothing sentiments abandoned.
His views on slavery, however, were unchanged and based on a strong commitment to rights of property holders to not have what they owned taken from them. He opposed the Thirteenth Amendment on the grounds that it was “a flagrant invasion of the right of self government.”5 He also believed the amendment broke a promise made to the slaveholders of Kentucky who had chosen to remain in the Union, and violated property rights guaranteed by the Constitution. His opinion of the Fourteenth and Fifteenth Amendments was no better, and after the war he joined the Conservative Party. At that point, if forced to choose between the major parties, he would certainly have become a Democrat.
With the presidential nomination of Ulysses Grant, however, Harlan’s views changed once more. He had known Grant during the war and respected his toughness and commitment to the United States. Although the Democrats, who dominated Kentucky politics, were urging Harlan to join them and perhaps even to run for office, Harlan instead aligned himself with Grant and the Republicans.
Kentucky Republicans, thrilled to have attracted such a prominent convert, nominated Harlan for governor in 1871. The only chance he had to win in a heavily Democratic state was to attract a heavy turnout among African Americans—those who could still vote—and so, as in his soldiering days, he found himself getting to know people against whom he had previously been prejudiced. Again showing his capacity for personal growth, Harlan totally changed his perspective on issues of equal rights.
“I rejoice,” announced the man who had opposed the Thirteenth Amendment late in the campaign, “that [slavery] is gone; I rejoice that the Sun of American Liberty does not this day shine upon a single human slave upon this continent; I rejoice that these human beings are now in possession of freedom, and that that freedom is secured to them in the fundamental law of the land, beyond the control of any state.” Then he added, noting his attitudes of the past, “Let it be said that I am right rather than consistent.”6
Harlan lost the election, but he amassed more votes than any other Republican in Kentucky’s history. He was nominated again four years later. In this election, the Civil Rights Act of 1875 was a major issue. Of that law, Harlan said, “Under the law of Kentucky, any one of the colored men within the sound of my voice has the same right that any white man possesses to ride in one of your cars from here to the city of Louisville.”7 Harlan lost once more, by an even narrower margin, and was instrumental in gaining the presidential nomination for Rutherford B. Hayes the following year. On October 16, 1877, the president nominated him to be associate justice of the Supreme Court. On Thanksgiving Day 1877, Harlan learned by telegram that he had been confirmed.
In early 1878, John Marshall Harlan came to Washington and joined Joseph Bradley on the Supreme Court.
* * *
The key question in the Civil Rights Cases was once again how much or how little the Fourteenth Amendment guaranteed every person in America fair and equal treatment under the law. Were the officials who refused to enforce the Civil Rights Act—and, by extension, who denied qualified African Americans the right to vote—“states” or, as the Court seemed to have ruled in Reese, ordinary people? The difference here was that in Reese, the registrars were not seen as in violation of guaranteed rights because they had simply followed the law—or so they said—and refused to register a person who had not paid his poll tax; in the five Civil Rights Cases, state employees had refused to respond to complaints that private individuals were violating a federal law.
An additional factor was the question of whether the Fourteenth Amendment took precedence over the Tenth. Ordinarily, a law that was passed later—the Fourteenth—would take precedence over an earlier law—the Tenth. In fact, in arguing his case, Solicitor General Samuel F. Phillips claimed that very thing: that the Fourteenth Amendment’s insistence on “equal protection of the laws” overrode the Tenth by defining new areas “delegated to the United States.” Equality, then, as defined in the Fourteenth Amendment, was appropriate to be ensured by Congress.
But the Waite Court had in the past seemed to disagree. It had ruled, for example, that the Bill of Rights guarantees did not apply to the states, and that the states alone could decide whether or not such fundamental liberties as freedom of speech, freedom of the press, free exercise of religion, or freedom of peaceable assembly would apply within their borders. Attorneys for the defendants in the Civil Rights Cases played to that stance, accusing Phillips of trying to broaden the Fourteenth Amendment to achieve social goals that neither Congress nor the Constitution had intended. But of course, the drafters of the Fourteenth Amendment had made it plain that they meant to do precisely that.
With the law so imprecise, the justices could find support in any interpretation of the Constitution they chose. Through Justice Bradley, they chose to support white supremacy.
* * *
Bradley kept the definition of “ordinary people” broad. He wrote that the Fourteenth Amendment did “not invest Congress with power to legislate upon subjects which are within the domain of State legislation, but to provide modes of relief against State legislation, or State action.”8 Bradley was, in essence, choosing broad construction for the Tenth Amendment and strict construction for the Fourteenth. In addition, although the defendants in these five cases were all private business owners, Bradley made a point of not making an exception for state employees. In fact, he added, “Individual invasion of individual rights is not the subject matter of the amendment.” And so, according to this definition, “subjects which are within the domain of State legislation” would include, say, voting registrars. And since the Civil Rights Act of 1875 was an unconstitutional incursion on the rights of states not justified by the Fourteenth Amendment, Bradley continued, it was unconstitutional and must be struck down.
The decision and the legal reasoning surprised no one. The Court had been creating precedent for this decision for years. But then Bradley did something unexpected. Seemingly unable to restrain himself, he added commentary on the entire effort to obtain equal rights for black Americans. He began by dismissing the notion of extending the Thirteenth Amendment, which prohibited slavery, to apply to the type of discrimination alleged in these cases as “badges of servitude.” “It would be running the slavery argument into the ground,” he wrote, “to make it apply to every act of discrimination which a person may see fit to make as to the guests he will entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theatre, or deal with in other matters of intercourse or business.”9
He was not done. From there, Bradley asserted,
When a man has emerged from slavery, and, by the aid of beneficent legislation, has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen and ceases to be the special favorite of the laws, and when his rights as a citizen or a man are to be protected in the ordinary modes by which other men’s rights are protected.
That a justice of the United States Supreme Court could make such a statement in the face of literally thousands of incidents of beatings, murder, rape, and intimidation of African Americans by whites; despite the reign of terror waged by the Ku Klux Klan and other violent Redeemer groups; despite the most obvious ploys to deny the vote instituted by whites against blacks; despite vagrancy laws, rigged juries, and rampant violation of contract rights—is simply astonishing.
This, however, seemed the Court’s point all along. The justices who concurred with Bradley had all but announced that they, as well as the white population they represented, wanted to be out of the business of protecting a class of Americans whom they held to be of no value. As Oliver Wendell Holmes would later write,
The very considerations which judges most rarely mention and always with an apology, are the secret root from which the law draws all the juices of life. I mean, of course, considerations of what is expedient to the community concerned. Every important principle which is developed by litigation is in fact and at bottom the result of more or less definitely understood views of public policy.10
But then there was the one. At the same inkstand at which Chief Justice Roger B. Taney had written the infamous Dred Scott opinion, John Marshall Harlan, the former slave owner from Kentucky, wrote what was to become one of the most praised opinions in the history of the Supreme Court.
“I cannot resist the conclusion that the substance and spirit of the recent amendments of the Constitution have been sacrificed by a subtle and ingenious verbal criticism,” Harlan began. Then he quoted Edmund Plowden, an English legal theorist, who in 1574 wrote, “It is not the words of the law, but the internal sense of it that makes the law; the letter of the law is the body; the sense and reason of the law is the soul.”11 There are those, of course, who insist that the law must be soulless in order to be fair; that souls can be subject to the feelings, even the whims, of those who claim to be acting at their behest. But Joseph Bradley was the epitome of the soulless legal practitioner; it would difficult to categorize his opinion in the Civil Rights Cases, or even in Cruikshank, as “fair.”
Harlan also chided his colleagues for ignoring what those who enacted the amendments had intended to achieve.
Constitutional provisions, adopted in the interest of liberty and for the purpose of securing, through national legislation, if need be, rights inhering in a state of freedom and belonging to American citizenship have been so construed as to defeat the ends the people desired to accomplish, which they attempted to accomplish, and which they supposed they had accomplished by changes in their fundamental law . . . The court has departed from the familiar rule requiring . . . that full effect be given to the intent with which they were adopted.
But he saved his harshest words for Bradley’s words about African Americans being “special favorites of the laws.”
What the nation, through congress, has sought to accomplish in reference to that race is, what had already been done in every state in the Union for the white race, to secure and protect rights belonging to them as freemen and citizens; nothing more. The one underlying purpose of congressional legislation has been to enable the black race to take the rank of mere citizens. The difficulty has been to compel a recognition of their legal right to take that rank, and to secure the enjoyment of privileges belonging, under the law, to them as a component part of the people for whose welfare and happiness government is ordained.
Harlan closed with this famous passage:
Today it is the colored race which is denied by corporations and individuals . . . rights fundamental in their freedom and citizenship. At some future time, it may be that some other race will fall under the ban of race discrimination. If the constitutional amendments be enforced according to the intent with which . . . they were adopted, there cannot be, in this republic, any class of human beings in practical subjection to another class . . . The supreme law of the land has decreed that no authority shall be exercised in this country upon the basis of discrimination . . . against freemen and citizens because of their race, color, or previous condition of servitude.12
History may have praised Justice Harlan, but most of white America did not. Harlan’s ideals were as unwelcome in the North as in the South. The New York Times, pleased to find its prediction that the Court would overturn the law accurate, wrote in an editorial that “the whole matter is now remanded to State authority in which it rightfully belongs.”13 The writer added, “it is doubtful if social privileges can be successfully dealt with by legislation of any kind.” He pointed out, however, all too correctly that “the decision is unlikely to have any considerable practical impact, for the reason that the act of 1875 has never been enforced. The general practice of railroads, hotels and theatres has remained unchanged and has depended mainly on the prevailing sentiment of the communities in which they are located.”
The Brooklyn Daily Eagle agreed.
There was a time when this decision would have created some excitement, but that time passed years ago . . . The Negro gained nothing by the passage of the Civil Rights act, and he will lose nothing by having it declared a dead letter. The decision simply gives him notification . . . that his advancement from a position of mere dependency on his white neighbor was to be brought about, not by fulminations of politicians but by self-respect, patience, hard work and general good behavior on his own part.
The editor also observed, “The decision is interesting as another proof that the Supreme Court continues to be . . . true to the spirit and structure of our Government . . . There, if nowhere else . . . loyalty to the fundamental law of the land has found a home.”14
Southern newspapers were gleeful. The Atlanta Constitution proclaimed in a headline, “A Radical Relic Rubbed Out. Special Rights for None but Equal Rights for All. A Triumph of Law and Sense Which Strengthens the Decree That the Republicans Must Go.”15
Not every white newspaper praised the decision. The Hartford Courant wrote sadly, “We regret that the judicial authority of the land has felt a duty . . . to wipe out of existence a law that for nearly ten years has worked no harm to anybody, and has been a testimony on the part of the American people of their sincerity in demanding equal rights for all men.”16 Of course, most of white America had done no such thing.
Black newspapers were unanimous in their outrage at the decision. The Boston Hub charged that the Court had deliberately cast the power of the judiciary against equal rights. The Louisville Bulletin exclaimed, “Our government is a farce, and a snare, and the sooner it is overthrown and an empire established upon its ruins the better.” The New York Globe denounced Bradley as reaffirming the “infamous decision of infamous Chief Justice Taney [in Dred Scott] that ‘a black man has no rights that a white is bound to respect.’”17
One of the most interesting reactions came from William Strong, who had retired from the Court to reenter private practice. He wrote to Justice Harlan, “At first I was inclined to agree with the Court but since reading your opinion, I am in great doubt. It may be that you are right. The opinion of the Court, as you said, is too narrow—sticks to the letter, while you aim to bring out the Spirit of the Constitution.”18
Although the Civil Rights Cases decision did not bear directly on voting, it enabled, even encouraged white America to keep itself separate from the nation’s black citizens; said that it was acceptable for them to shun those whom most whites thought members of an inferior race; raised, in fact, the distinct possibility that as far as the United States Supreme Court was concerned, they might well be members of an inferior race. Why then should they be allowed to vote?