IN DECEMBER 1895, TWO DAYS AFTER CHRISTMAS, THE body of Eliza Brown was discovered under a pile of clothing in the shack in which she lived in Washington County, Mississippi. She had been strangled, and her live-in lover Henry Williams had disappeared. There had been bad blood between the two, Williams having voiced strong suspicions to friends that Eliza had been unfaithful, and so he was immediately sought as a prime suspect in the murder.
Williams was found hiding in an attic a few days later and was arrested. His statements to police were muddled. For the most part, he denied killing Eliza Brown, although at one point said he couldn’t be certain whether he had done so or not, presumably because he was drunk. Williams also said that when he had arrived home on Christmas Day, he had observed another man leaving, hat in hand, although he could not identify the man, nor did any other evidence of the visitor turn up. Williams was adamant that he had not hidden the body under the clothing—Eliza Brown took in washing for a living—but he admitted freely that he was not unhappy his lover was dead, and insisted she would have felt the same way if it was him lying there instead.
The case appeared to be uncomplicated, with evidence of Williams’s guilt strong if not absolute. As with Virginia’s Reynolds brothers, if Henry Williams had been white, it might have been possible to plant some doubt in jurors’ minds. But here again, a domestic killing by a black man did not promise to result in anything but an abbreviated trial followed by a guilty verdict and death sentence.
Which was precisely how events played out. Henry Williams was indicted by an all-white grand jury, its members drawn from local voting rolls, and then convicted, on June 16, 1896, by a similarly comprised petit jury. He was quickly sentenced to hang by a white judge.
Under most circumstances, the execution of Henry Williams on the scheduled date of July 30, 1896, would have proceeded without fuss or fanfare, and Williams would have become nothing more than a statistic in the annals of Mississippi jurisprudence. But Henry Williams was to become a good deal more than that, because his lawyer, Cornelius J. Jones Jr., intended to make his client the centerpiece of one of the most important voting rights cases brought before the United States Supreme Court since the end of the Civil War.
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To say it was rare for a black lawyer to induce dread among white Mississippi politicians in the 1890s is an understatement, but that is precisely what Cornelius Jones did. Indefatigable and fearless, by the time he took up Henry Williams’s case, Jones had already spent more than five years on a crusade to overthrow the 1890 Mississippi Constitution.
Jones had been born in Vicksburg, Mississippi, in 1858, the son of two slaves who registered their marriage after the city fell to Ulysses Grant in July 1863. He attended a Freedmen’s Bureau school, after which he eventually enrolled at the newly commissioned Alcorn University—named for Mississippi governor James Alcorn, a Confederate general who had become a Republican—the facilities purchased for $40,000 from Oakland College, an institution for Southern white gentry that had closed at the onset of the Civil War. Alcorn’s first president was Hiram Revels, the first African American to serve in the United States Senate, who resigned that seat to accept the position.
While there is no official academic record, Jones must have been a quite talented student. After he left Alcorn, he did a stint as a schoolteacher in Louisiana, then returned to Mississippi to study law. There he was hired by Anselm McLaurin, considered the foremost criminal lawyer in the state. McLaurin would be elected governor, appointed as senator, and become “one of the most active, diligent, practical, and courageous members” of the 1890 convention.1 As such, Anselm McLaurin would burnish his reputation by helping to draft the document that disfranchised virtually every black man in Mississippi, against which Cornelius Jones would crusade for the remainder of his life. But for whatever reason—and he never said why—in the years before the convention was called, this bastion of white society was drawn to the young black lawyer.
In 1888, as he turned thirty, Jones decided to enter politics. Black voters, once a majority in Mississippi, had receded in number but were still sufficiently represented that Jones won a seat in the state legislature. As soon as the voting provisions of the 1890 constitution went into effect, however, he was turned out of his seat. Whether due to personal animus or to seek justice for his fellow African Americans—or both—Jones was soon using the legal system to test the provisions that had denied him and his fellow black legislators their positions in government.
The first case he found was, as with Henry Williams, an ordinary murder, a workplace killing. On December 12, 1892, a black laborer named John Gibson killed the manager of the Refuge Plantation, Robert Stinson, in a dispute over docked wages.2 Gibson admitted to being drunk and seeking out and confronting his victim. What was odd about the case was that while Gibson was not armed, the plant manager was—with a six-shooter and a heavy wooden staff. Facing Gibson down, the plant manager beat him with the stick until Gibson collapsed into the dirt. Gibson struggled toward the manager, who fired his revolver. But the shots missed and Gibson succeeded in reaching the other man. During the ensuing struggle, four more shots were heard and the plant manager crumpled to the ground, dead on the spot. Gibson attempted to flee but was almost immediately captured.
A verdict of self-defense, at least as far as the murder charge was concerned, could easily have been rendered, but instead, as was routine for black men in Mississippi, Gibson was quickly indicted, tried, and sentenced to hang, with every person on the bench, in the jury box, or pleading for the prosecution being white.
Cornelius Jones had not been Gibson’s lawyer at trial, but took over for his appeal and succeeded in winning a new trial, purely on a technicality. At the second trial—which all concerned knew would have the same outcome as the first—Jones laid the groundwork for an eventual appeal to federal court on Fourteenth Amendment grounds, specifically that Gibson had been denied due process because he had not been judged by a jury of his peers. “His peers,” of course, meant other African Americans, none of whom had served on the grand or petit juries. That, according to Jones, was due to a new method of selecting jury pools implemented in 1892, which drew jurors from voting post-1890 rolls, and they contained virtually no African Americans. The previous law, based on the 1880 state constitution, had allowed 7,000 adult African American men to be eligible for jury service in Bolivar County, where the trial would take place. Since Gibson’s crime had been committed before the 1892 change took effect, Jones claimed the jury pool should have been chosen based on the earlier statute. As it was, “the great prejudice prevailing against him among the white race” ensured Gibson’s conviction and denied him the constitutional protections to which he was entitled.3
Jones filed a motion to quash the indictment on both Fourteenth Amendment grounds and the constitutional prohibition against ex post facto laws. The motion was denied. Gibson was once more convicted and sentenced to hang.
By the time Jones filed another appeal, this one to remove the case to federal court, he was also representing another accused murderer, Charley Smith. Jones made a similar motion at Smith’s trial to have the case removed to federal court. This motion was denied as well. Although the case against Smith was not terribly strong—the prosecution could only prove that he had started a brawl in which another man had been shot and killed—he too was convicted and sentenced to be hanged. Jones appealed both Gibson’s and Smith’s convictions to the Mississippi Supreme Court, where, as expected, he lost. He then announced his intention to bring his appeal to the United States Supreme Court.
To press the action, Jones journeyed to Washington, where he teamed with another African American attorney, Emmanuel Hewlett, a well-connected law school graduate of Boston University. Jones took his appeal to the public as well as to the Court, and became a frequent speaker at churches and to civic groups. Word got around, and soon Cornelius Jones found himself the subject of numerous laudatory articles in both the black and the white press. A talk he gave at the Vermont Avenue Baptist Church was covered by the Washington Evening Star, at the time the capital’s leading newspaper. The subject of the meeting, the Star noted, “was to lay before the colored people of the city the merits of the case of John Gibson and Charley Smith against the state of Mississippi . . . Much interest is being manifested in the case, not only by the colored people here, but throughout the south generally, as it involves the question of colored men serving on juries in the south.4
“Both of the plaintiffs are colored men,” the article continued, “and have been three times convicted by the Mississippi state courts of murder, and the supreme court of the state has three times reversed the decision of the lower courts.” The implication that Jones had succeeded in thwarting Mississippi was overstated, but gives a sense of the favorable reception he had received.
From here, the Star observed, Jones had “carried [the case] to the state supreme court upon the grounds that there were no colored men on the juries which indicted and convicted the men. The supreme court sustained the lower courts in excluding colored men from jury duty, and upon this Judge White of the United States Supreme Court in July last granted a writ of error, and certified the case to the Supreme Court.”
The newspaper excerpted Jones’s speech. “There is a practice prevailing in many of the courts of the south,” he was quoted as saying, “and especially the state of Mississippi, wherein negroes, in state courts, are uniformly excluded from jury service, however well qualified, and this exclusion is on account of their race and color. The exclusion is effected by state officers purposely and intentionally.” Jones insisted this was a “gross violation” of the Fourteenth Amendment to the Constitution, and expressed confidence the justices would agree with him. If they did, “it will revolutionize the present system of jury service in many states of the south.”
Smith was argued on December 16, 1895, and Gibson two days later. African American newspapers could not contain their praise for the crusading black lawyer from the cradle of white supremacy who might change history by pleading landmark cases to the highest court in the land. “Mr. Jones is a Mississippian by birth,” The Washington Bee, a black newspaper, wrote, “and a man who enjoys the full confidence and respect of the citizens of his State, regardless of race or color. Having occupied many places of honor with great credit, we are also creditably informed that the judges of the courts of the State and members of the bar respect him for his manly bearing and knowledge of the law in the conduct of his cases.”5
Jones, however, did not conduct Gibson or Smith well at all. The first hurdle he and Hewlett faced was to persuade the justices that the Supreme Court should even be hearing the cases. If he could not provide evidence that black potential jurors had been excluded specifically on racial grounds, there would be no federal jurisdiction in either case. Such demonstrations, however, had become increasingly difficult. Savvy white Southern legislators would no longer make the mistake that West Virginia had in Strauder; nor would a state official make a damning public statement, as had the Delaware Supreme Court chief justice in Neal. The only avenue that seemed open was that which had been used successfully in Yick Wo, that the administration of laws facially race-neutral had been obviously and blatantly discriminatory.
But Emmanuel Hewlett, who wrote the brief in Gibson, did not cite Yick Wo. Rather, he attempted to portray the case as an extension of Strauder and Neal. He stated that “there had not been for a number of years any colored man ever summoned on the grand jury of said county court; and that the colored citizens were purposely, on account of their color, excluded from jury service by the officers of the law charged with the selection of said jurors.” This was a dubious strategy at best, but made worse because Jones and Hewlett presented no evidence in either case that demonstrated willful discrimination by Mississippi officials, only certified statements by the plaintiffs that the discrimination in jury selection had been present.
They also blundered in citing the Slaughter-House Cases as their justification for seeking Fourteenth Amendment relief. “It was designed,” Hewlett wrote, “to assure the colored race the enjoyment of all of the civil rights that under the law are enjoyed by white persons, and to give that race the protection of the Federal government in that enjoyment, when it should be denied by the States.” But the Slaughter-House Cases had done precisely the opposite by creating different “privileges and immunities” of citizenship for the nation and the states, therefore allowing Mississippi to conduct jury pool selection and voter registration—if it avoided openly and verifiably discriminating—pretty much as it pleased.
Decisions in both cases were reported out on April 16, 1896, and both were unanimous. Justice Harlan wrote in Gibson,
There was either no evidence offered in support of the motion, or, if offered, it does not appear in the record, and in this case we can do nothing but affirm the action of the [Mississippi Supreme Court] in denying this motion. The affidavit appended to the motion in its terms affords no sort of evidence . . . that the affiant had any personal knowledge touching any of the facts relied upon as grounds for upholding the motion.6
Harlan affirmed the principle that laws must be applied equally to all citizens, but since Jones and Hewlett had not sought to invoke the Yick Wo principle of discriminatory application, Harlan reverted to the Rives rule in which a state had to announce discrimination to trigger a Fourteenth Amendment violation.
It is clear that the accused in the present case was not entitled to have the case removed into the Circuit Court of the United States unless he was denied by the constitution or laws of Mississippi some of the fundamental rights of life or liberty that were guaranteed to other citizens resident in that State. The equal protection of the laws is a right now secured to every person without regard to race, color or previous condition of servitude; and the denial of such protection by any State is forbidden by the supreme law of the land. These principles are earnestly invoked by counsel for the accused. But they do not support the application for the removal of this case from the state court in which the indictment was found, for the reason that neither the constitution of Mississippi nor the statutes of that State prescribe any rule for, or mode of procedure in, the trial of criminal cases which is not equally applicable to all citizens of the United States and to all persons within the jurisdiction of the State without regard to race, color or previous condition of servitude.
Gibson was thus denied, as was Smith in a similar ruling. Both were subsequently hanged.
The following month, Harlan would break with his colleagues and be the sole dissenting vote in Plessy v. Ferguson, an intense defense of equal protection of law for all citizens, in which he wrote,
In view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. 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 law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.
(Less often quoted were the words that immediately preceded these: “The white race deems itself to be the dominant race in this country. And so it is in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time if it remains true to its great heritage and holds fast to the principles of constitutional liberty.”)7
One month after that, Henry Williams was convicted of murder and sentenced to death.
While taking up Williams’s appeal, Cornelius Jones decided to run for Congress in Mississippi’s third congressional district in the November 1896 election. His opponent would be a six-term incumbent, Democrat Thomas Catchings. Although he had served in the Confederate army only as a private, after his election to Congress, local newspapers had taken to referring to him as “General Catchings.” Jones had little hope of besting Catchings—even if all the disfranchised black voters had been allowed to cast ballots, local election officials would have tossed them in the river—but as with the Gibson and Smith cases, Jones intended to use the contest to mount a fresh assault on the 1890 constitution.
On Election Day, Catchings received more than 80 percent of the votes. Soon afterward, Jones filed an official challenge with the House of Representatives, claiming that the Mississippi Constitution’s provisions granting or denying adult males the right to vote violated the United States Constitution. Although this was essentially the same assertion that had been dismissed by the Supreme Court, Congress was a different venue, one more attuned, Jones hoped, to public opinion. As was standard in voting challenges, Jones was awarded $2,000 to press his claim, which Mississippi newspapers disparagingly insisted was his sole motivation. While Jones undoubtedly welcomed the money—it was a good deal more than he could make representing largely indigent black criminal defendants—that his motives ran deeper was disquieting for Mississippi whites.
Although his challenge was soon dismissed—and provoked little mention in the press—the white political establishment in Mississippi had taken notice. They thought enough of him to make him the subject of eviscerating articles in state newspapers. For example, in December 1896, The Greenville Times discussed Jones’s challenge and his previous failures to successfully contest the Mississippi Constitution in the United States Supreme Court. “These experiences should have taught any head less thick than that of an African that he was wasting his time. If he had been conscientiously fighting for a principle he would no doubt have been convinced, but it is the double temptation of lucre and prestige with his race that actuates this chronic contestant.”8
Jones tried again in 1898, this time using an ingenious ploy. Mississippi law stated that if an amendment to the state constitution was up for a vote, then it must be printed on the same ballot as that of the candidates for office or else be judged void. That year, an amendment to cede both control and the cost of maintaining levees on the Mississippi River to the federal government was to be put to a vote, but through an oversight, state officials printed a separate ballot. When Jones learned of the error—only days before the votes were to be cast—he instructed his supporters, Republicans both black and white, to show up at the polling station and file affidavits instead of ballots. The affidavits would state that the voter came to polling station to cast his vote for Cornelius Jones, but when he discovered the ballot was illegal, filed this document instead. From there, Jones would once again contest the election, claiming that under Mississippi law, all ballots for Catchings were illegal. He would again be granted $2,000 to pursue his claim.
This time, the white press was waiting for him. Aghast that white voter indifference might actually result in the election of a black man, local newspapers urged their readers to go to the polls. “There is nothing more dangerous than the apathy which follows a feeling of absolute security in politics,” wrote the editor of The Greenville Times,
and that is a danger which is now threatens us . . . After the last congressional election in this district a contest was inaugurated by the negro Republican candidate which menaced the peace of the district and the seat of its representative much more seriously than was suspected by the general public. It is quite possible—probable, even, that a similar attempt may be made in the present election. There is also a possibility that Democratic members may be arbitrarily unseated on whatever grounds can be trumped up. Democratic voters of this district should see to it that there is no ground for a contest. If every man will but do his individual duty there will be no room for any question as to the will of the majority of qualified voters who return Mr. Catchings to congress.9
A September 1898 editorial in the Mayersville Spectator, under the headline “Voters, Listen!” read,
On the 8th of next November we will be called upon to elect a member of Congress to represent this district. It is of vital importance to go to the polls. It is true that the Republicans are largely in minority in this district, but it is too true that after nominations are made our people are indifferent and do not turn out and vote. But it is our duty this time to come to the front and vote for General Catchings, who is the party nominee. We cannot afford to let a negro be elected in this district, and if we do not turn out and vote, there is danger of such a thing . . . Let us do our duty to the grand old party that delivered us from the clutches of negro rule years ago. Let us prove to the world that they may slander our county, but they will never weaken our Democracy.10
Despite these dire portents, few Democrats felt any sense of urgency, and voter turnout remained low. Catchings received only 2,486 votes, all cast on ballots that did not contain the levee amendment. Jones, whose official vote total was less than 250—all also on the disputed ballot—secured more than 1,000 certified statements, although it was likely that many were submitted by adult black males who had been disqualified as voters under the provisions of the 1890 constitution.
Jones then filed his appeal. Unlike after the previous election, Jones on this occasion hired two attorneys to prepare and file his brief, in which he specifically attacked not the constitutionality of the 1890 Mississippi Constitution, but simply the legality of the 2,486 ballots cast for his opponent. The brief stated, “The law is plain, and there remains no excuse for its violation, and the 2,486 votes cast for Representative, and the 2,212 votes cast for the levee amendment on the 8th of last November, 1898, in this district, must, in compliance with the express command of the sovereign people of Mississippi, be declared illegal.”11
Mississippi’s secretary of state freely admitted that Jones was correct, but claimed the dual ballots were due merely to oversight and should not void an election in which voters had freely and overwhelmingly expressed their preference. In any event, as an editorial in the Vicksburg Commercial Herald pointed out, even if the ballots for the levee amendment were voided, the ballots for Congress were legal.
It seems, however, that in drawing up his notice of contest, Jones discovered and has disclosed a grave error in the manner of the submission of the levee amendment to the constitution. Through a process of reasoning, which is all his own, it is contended in the notice that this error vitiates the regular election for Congressman, and validates the performance. How this conclusion is reached is too absurd for consideration; it is not worthwhile to state. This is not so, we fear, as to the constitutional amendment; that seems to have been fatally marred.12
But it was not. The levee amendment passed, and Thomas Catchings was once more seated as the representative for Mississippi’s third congressional district. Cornelius Jones did not run for Congress again.
Between his jousts with Mississippi Democrats for a congressional seat, Jones brought Henry Williams’s appeal to the Supreme Court.
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At the original trial in June 1896 in state circuit court, Jones had moved to quash the indictment on Fourteenth Amendment grounds, based on the systematic exclusion of blacks from the voting rolls on which grand jury participation was based. His petition specifically cited the 1890 Mississippi constitutional convention, which, according to Jones:
was composed of 134 members, only one of whom was a negro. That under prior laws, there were 190,000 colored voters and 69,000 white voters. The makers of the new constitution arbitrarily refused to submit it to the voters of the state for approval, but ordered it adopted, and an election to be held immediately under it, which election was held under the election ordinances of the said constitution in November, 1891, and the legislature assembled in 1892, and enacted the statutes complained of for the purpose to discriminate . . . and but for that the defendant’s race would have been represented impartially on the grand jury which presented this indictment.13
Without citing it as precedent, Jones also alluded to the Yick Wo decision. The Mississippi Constitution, he insisted, “is but a scheme . . . to abridge the suffrage of the colored electors in the State of Mississippi on account of the previous condition of servitude by granting a discretion to the said officers as mentioned in the several sections of the constitution of the state and the statute of the state adopted under the said constitution.”14
The petition to the grand jury was rejected, and the trial and subsequent sentence of death proceeded to its foregone conclusion.
Jones then appealed Williams’s case on a writ of error to federal circuit court, claiming that “the laws by which the grand jury was selected, organized, summoned, and charged, which presented the said indictment, are unconstitutional and repugnant to the spirit and letter of the Constitution of the United States of America, Fourteenth Amendment.” When this appeal was also denied, Jones brought the case to the Supreme Court.
Jones claimed in his Supreme Court petition that the exclusionary effect of the property tax and literacy clauses of the Mississippi Constitution had made it impossible for his client to be judged by a jury of his peers. As a citizen of the United States, Jones went on, Henry Williams was entitled to federal constitutional guarantees. Once again, he could produce no documentary records—he claimed Mississippi officials refused to make them available—but accompanied his motion only with four affidavits, two of which were from Williams himself.
On April 25, 1898, the Court issued its decision in a unanimous opinion written by the recently appointed Joseph McKenna. McKenna, after a brief stint as attorney general, had been on the Court only three months, replacing Stephen Field, who had retired after thirty-four years.15 But where Field had been universally respected as a brilliant legal scholar and either lauded or loathed for his role in assuring the ascension of the American corporation, McKenna was widely perceived as an intellectual mediocrity and distrusted as only the third Catholic ever appointed to the Court.16 McKenna, during his confirmation hearings, had become so sensitive to charges that he was, in fact, ignorant of many aspects of the law that he had sat in on classes at Columbia University Law School before taking the bench.
McKenna’s most compelling credential seemed to have been that, like Field, he came from California, the son of Irish immigrants who had migrated west. There, although he started a law practice, he soon went into politics, working his way from elective office to an appointment to federal circuit court, where he spent an undistinguished six years. His supporters attempted to paint the opposition to his nomination as religious bigotry. One claimed to “have no patience with men who held the opinion that Catholics necessarily must consult the Pope or some other high functionary of the Catholic Church in every important transaction of their lives.” But even that supporter was lukewarm, admitting “he did not contend that Mr. McKenna was a giant in his legal attainments.” Equally damning to his opponents was the charge by the California bar association “that large corporations had been instrumental in securing his nomination.”17
Although McKenna had dealt with few African Americans in California, his racial attitudes might be tentatively discerned by his attitudes toward the Chinese. “As a politician and legislator on both state and national levels, McKenna consistently and enthusiastically advocated various types of anti-Chinese legislation, and as a federal judge in California he construed the law rigorously to enforce the exclusion of Chinese, including even those who presented evidence of American citizenship.”18
Chief Justice Melville Fuller assigned McKenna Williams v. Mississippi for his first opinion. There was little doubt as to the outcome, and so it would provide the new associate an opportunity to demonstrate to a dubious legal community that he could write a lucid, persuasive, straightforward opinion. And so McKenna, who doubtless took exceptional care, mirrored his predecessors by beginning with a lofty pronouncement.
[The Fourteenth Amendment] and its effect upon the rights of the colored race have been considered by this Court in a number of cases, and it has been uniformly held that the Constitution of the United States, as amended, forbids, so far as civil and political rights are concerned, discriminations by the general government or by the states against any citizen because of his race.19
Then, also as in previous opinions, McKenna retreated to the narrow, strict reading of the amendment. “But it has also been held [that] to justify a removal from a state court to a federal court of a cause in which such rights are alleged to be denied, that such denial must be the result of the constitution or laws of the state, not of the administration of them.” This, of course, was not at all true, given the Yick Wo decision a dozen years earlier. Still, McKenna was aware enough of the precedent to acknowledge that if Williams could prove that the law had been administered in a discriminatory fashion, he would then have grounds for his action.
Although Jones had been unable to obtain reams of documentary evidence of specific incidents, for most laymen looking at the Mississippi voting rolls, it would have been all too obvious that some chicanery had been afoot, certainly as obvious as the plaintiffs had supplied in Yick Wo. After implementation of the 1890 constitution, virtually none of Mississippi’s 907,000 black residents remained eligible to go to the polls, whereas tens of thousands of its 563,000 white residents were. In addition, Mississippi state officials, unlike San Francisco city fathers, had boasted of their intention to disfranchise black voters. As such, the Court could easily have ruled that the “interpretation clause” of the Mississippi Constitution was not, in fact, used to test literacy, but simply as a ruse to deny the vote to African Americans.
But McKenna and his fellows refused to see past their own prejudices, and granted wide discretion to Mississippi’s administering officers (all of whom also were white) on their choices of what an applicant to vote should read and “interpret.” Even Justice Harlan joined the chorus. If Mississippi officials chose a short simple phrase for whites—or even no phrase at all—and long, complex phrases for blacks; even if they had publicly proclaimed that those phrases had been inserted in the state constitution simply to foil potential black voters, the burden remained on Williams to prove that these choices of phrase had been made intentionally, on a case-by-case basis, to deny blacks the right to register. And then, to raise the bar yet higher, even if a certain officer was discriminatory in the manner in which he administered the test, it was the fault of the man, not the constitution under which he was operating.
The opinion was also openly racist. McKenna cited a South Carolina Supreme Court ruling that declared “the negro race had acquired or accentuated certain peculiarities of habit, of temperament, and of character which clearly distinguished it as a race from the whites; a patient, docile people, but careless, landless, migratory within narrow limits, without forethought, and its criminal members given to furtive offenses, rather than the robust crimes of the whites,” to conclude that the Mississippi Constitution did not in itself discriminate. “Nor,” he added incredibly, “is there any sufficient allegation of an evil and discriminating administration of [it].”
In the end, the decrease of black registrants in Mississippi to almost zero did not prove that potential black voters had been dealt with in a discriminatory fashion. “The Constitution of Mississippi and its statutes do not on their face discriminate between the races, and it has not been shown that their actual administration was evil; only that evil was possible under them.”20
Unwilling to simply dismiss McKenna’s opinion and the acquiescence of his fellow justices as mere racism, some contemporary analysts have cast about, without a great deal of success, for some appropriate legal underpinning. Michael Klarman, for example, in defending the decision, wrote that “the Court drew on a dominant tradition in constitutional law that held legislative motive to be irrelevant,” and cited John Marshall’s opinion in Fletcher v. Peck as precedent. But Klarman is then forced to admit that “this tradition rejecting judicial inquiries into legislative motive was not the only one available to the Court,” and that Marshall’s opinion in McCulloch v. Maryland “sounds suspiciously like a motive inquiry.” Then, of course, there was Yick Wo, technically decided on application, which by any reasonable understanding must be bound inextricably to motive. And in Ah Kow, which Klarman also cites, Stephen Field “expressly employed motive analysis.”21
Like Plessy, Williams was accepted without criticism by the press, the public, and in legal journals. The case was not subject to critical analysis until many decades later and was, in fact, cited in a number of articles in the Harvard Law Review as perfectly sound precedent. And so it remains. Williams was never overturned by the Court at all, but rather was rendered moot by the Voting Rights Act of 1965.
Cornelius Jones never gave up the fight for equal rights. In 1915, he initiated the first ever lawsuit to gain reparations for former slaves. He sued the Treasury Department for $68 million, the proceeds from the sale of raw cotton seized from slave states during the Civil War. The suit was dismissed in 1917 because the judges ruled “the real defendant is the United States, which cannot be sued without its consent.”22 The following year, Jones was indicted for attempting to defraud former slaves by allegedly asking them to contribute $1.75 each to be a plaintiff. That case was thrown out as well.