Introduction
1.“Introduction to Federal Voting Rights Laws,” Electronic Privacy Information Center, epic.org/privacy/voting/register/intro.html.
2.“The Effects of Shelby County v. Holder,” Brennan Center for Justice, August 6, 2018, www.brennancenter.org/analysis/effects-shelby-county-v-holder.
3.P. R. Lockhart, “This is Voter Suppression: Black Seniors in Georgia Ordered Off Bus Taking Them to Vote,” Vox, October 17, 2018, www.vox.com/identities/2018/10/17/17990110/georgia-senior-citizens-bus-removal-black-voters-matter-suppression.
4.Senators were initially appointed by state legislatures, but that was changed to popular vote in 1913 with ratification of the Seventeenth Amendment.
Prologue: Overthrow
1.Richard Wormser, The Rise and Fall of Jim Crow (New York: St. Martin’s Press, 2003) 84.
2.The Daily Record, August 18, 1898.
3.Reprinted in the Wilmington, NC, The Semi-Weekly Messenger, September 6, 1898, 8.
4.“The Ghosts of 1898: Wilmington’s Race Riot and the Rise of White Supremacy,” News and Observer, November 17, 2006, media2.newsobserver.com/content/media/2010/5/3/ghostsof1898.pdf.
5.“The Ghosts of 1898,” News and Observer, November 17, 2006, media2.newsobserver.com/content/media/2010/5/3/ghostsof1898.pdf.
6.“Rev. Charles S. Morris Describes the Wilmington Massacre of 1898,” Black Past.org, January 28, 2007, www.blackpast.org/african-american-history/1898-rev-charles-s-morris-describes-wilmington-massacre-1898.
7.Harry Hayden, The Story of the Wilmington Rebellion (Privately printed, 1936), www.1898wilmington.org/hayden.shtml.
8.“The Life of Alexander L. Manly,” Goin’ North, goinnorth.org/exhibits/show/milo-manly/manly-family.
Chapter 1: Who Votes?
1.Max Farrand, Records of the Federal Convention (New Haven, CT: Yale University Press, 1937) Vol. 2, 203–4.
2.Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Philadelphia: J. B. Lippincott & Co., 1839) Vol. 5, 243.
3.“From John Adams to James Sullivan, 26 May 1776,” National Archives, Founders Online, founders.archives.gov/documents/Adams/06-04-02-0091.
4.Harold C. Syrett, ed., Papers of Alexander Hamilton (New York: Columbia University Press, 1961–79) Vol. 1, 106.
5.Farrand, Records, Vol. 1, 299.
6.Julian P. Boyd, ed. Papers of Thomas Jefferson (Princeton, NJ: Princeton University Press, 1950) Vol. 1, 504.
7.“Thomas Jefferson to Richard Price,” Library of Congress, January 8, 1789, www.loc.gov/exhibits/jefferson/60.html.
8.Quoted in Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States (New York: Basic Books, 2000), 3.
Chapter 2: Two Amendments . . .
1.Congressional Globe, 40th Congress, 2nd Session, (1867) 2. The message was delivered in an attempt to ward off impeachment. Johnson was successful that time. Two days after his message was read in Congress, the House of Representatives voted 108–57 against reporting a bill of impeachment. He would not be so fortunate two months later.
2.Congressional Globe, 40th Congress, 2nd Session, (1867) 2.
3.George P. Smith, “Republican Reconstruction and Section Two of the Fourteenth Amendment,” The Western Political Quarterly, Vol. 23, No. 4 (December 1970): 829–853.
4.Mildred Bryant-Jones, “The Political Program of Thaddeus Stevens, 1865,” Phylon, Vol. 2, No. 2 (2nd Qtr., 1941): 149.
5.Bryant-Jones, “Political Program,” 150.
6.Statutes at Large, 14 Stat. 27 (1866).
7.Quoted in C. Vann Woodward, “The Political Legacy of Reconstruction,” in “The Negro Voter in the South,” The Journal of Negro Education, Vol. 26, No. 3 (Summer 1957), 231.
8.Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York: NYU Press, 2013), 125.
9.New York Times, June 15, 1866, 4.
10.Hartford Courant, June 14, 1866, 2. The article referred to Stevens’s proposal of a section bluntly barring disfranchisement of blacks.
11.William W. Van Alstyne, “The Fourteenth Amendment, the ‘Right’ to Vote, and the Understanding of the Thirty-Ninth Congress,” The Supreme Court Review, Vol. 1965 (1965).
12.Statutes at Large, 39th Congress, 2nd Session, 428.
13.Statutes at Large, 39th Congress, 2nd Session, 429.
14.Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877 (New York: Harper and Row, 1988), 276.
15.New York Times, March 25, 1867, 4.
16.New York Times, July 10, 1868, 4.
17.Eric Foner, Freedom’s Lawmakers: A Directory of Black Officeholders during Reconstruction, revised ed. (Baton Rouge: Louisiana State University Press, 1996), xi–xxxii.
Chapter 3: Power in Black and White
1.Eddy W. Davison and Daniel Foxx, Nathan Bedford Forrest: In Search of the Enigma (Gretna, LA: Pelican Publishing, 2007) 246.
2.Mary Polk Branch, Memoirs of a Southern Woman (Chicago: Joseph E. Branch Publishing Company, 1912).
3.Thomas W. Burton, What Experience Has Taught Me: An Autobiography of Thomas William Burton (Cincinnati: Press of Jennings and Graham, 1910).
4.Frank Alexander Montgomery, Reminiscences of a Mississippian in Peace and War (Cincinnati: Robert Clarke Company, 1901), 268–70.
5.James Wilford Garner, Reconstruction in Mississippi (New York: MacMillan, 1901), 338.
6.William A. Dunning, “The Undoing of Reconstruction,” The Atlantic Monthly, vol. 88, 1901, 440–1.
7.Foner, Reconstruction, 343.
8.Garner, Reconstruction, 341.
Chapter 4: . . . and a Third
1.Congressional Globe, 39th Congress, 1st Session (1866), 362.
2.Congressional Globe, 39th Congress, 1st Session (1866), 1287.
3.Congressional Globe, 37th Congress, 3rd Session (1863), 2766.
4.“Amendments to the Constitution: a brief legislative history. Prepared for the use of the Subcommittee on the Constitution, Committee on the Judiciary, United States Senate.” Washington, D.C.: U.S. G.P.O., 1985, 36.
5.Congressional Globe, 40th Congress, 3rd Session (1868–1869), 378.
6.Edward McPherson, The Political History of the United States of America During the Period of Reconstruction (from April 15, 1865 to July 15, 1870) (Washington, D.C.: Philp and Solomons, 1871), 402–3.
7.Congressional Globe, 40th Congress, 3rd Session (1868-9), 727.
8.Garrison, of course, had also warned that such “coercion would gain nothing,” words that proved prophetic in the decades to come.
9.Xi Wang, “The Making of Federal Enforcement Laws, 1870–1872—Freedom: Political,” Chicago-Kent Law Review, vol. 70 (1995), 1015.
10.New York Times, March 31, 1870, 5. Grant did “call the attention . . . of our newly enfranchised race to the importance of their striving in every honorable manner to make themselves worthy of their new privilege.”
11.Quoted in Foner, Reconstruction, 449.
12.Quoted in Foner, Reconstruction, 446.
13.Quoted in the Hartford Courant, February 2, 1870, 2.
Chapter 5: A Fragile Illusion
1.Washington Evening Star, March 4, 1869, 1.
2.16 Stat. 140 (1870).
3.Wang, “Federal Enforcement Laws,” 1033. He writes, “The Republican party’s loss in New York during the 1868 presidential election was still a fresh memory. Not only did New York fail to give its electoral votes to Grant and Colfax, but the Democratic Party also won thirteen of the state’s thirty-one seats in Congress.”
4.The office of Attorney General had existed since the Judiciary Act of 1789. It was originally a part-time position, manned by an attorney who maintained a private practice to supplement his salary. He didn’t even have a clerk until 1818. Only after the start of the Civil War was the Attorney General given authority over United States attorneys. After the war, there were some nascent efforts to establish an executive department, but only after Andrew Johnson was out and Ulysses Grant was in did the bill authorizing its creation pass Congress.
5.Robert Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice and Civil Rights, 1866–1876 (New York: Fordham University Press, 2005), 65.
6.J. Morgan Kousser, “Response to Commentaries,” Social Science History, 24:2 (Summer 2000): 18.
7.Ulysses S. Grant, The Papers of Ulysses S. Grant: November 1, 1870–May 31, 1871 (Carbondale: Southern Illinois University Press, 1998), 259.
8.Grant, Papers, 261.
9.Kaczorowski, 99.
10.Congressional Globe, 42nd Congress, 1st Session (1875), 135.
11.Richard Zuczek, “The Federal Government’s Attack on the Ku Klux Klan: A Reassessment,” The South Carolina Historical Magazine 97, no. 1 (1996), 50.
12.Quoted in Kaczorowski, 66.
13.Quoted in Kaczorowski, 76.
14.Kousser, 18.
Chapter 6: Any Way You Slice It
1.“Report of the Special Joint Committee on Levees to the Legislature of the State of Louisiana,” Baton Rouge, 1859, 35.
2.Quoted in Jonathan Lurie, “Reflections on Justice Samuel F. Miller and the Slaughter-House Cases: Still a Meaty Subject,” NYU Journal of Law & Liberty, Vol. 1 (2005), 357.
3.There are those who insist the opposition by Democrats was not racially motivated; that complaints that the new corporation was just a money grab were sincere. Still, in a city and state famed for graft and corruption that knew no party boundaries, Democrats’ indignation would seem suspect, especially since they would be getting a tangible and long-demanded benefit.
4.Michael A. Ross, “Justice Miller’s Reconstruction: The Slaughter-House Cases, Health Codes, and Civil Rights in New Orleans, 1861–1873,” The Journal of Southern History, Vol. 64, No. 4 (November 1998), 21.
5.Quoted in Charles Lane, The Day Freedom Died: The Colfax Massacre, the Supreme Court, and the Betrayal of Reconstruction (New York: Henry Holt & Company, 2009), 120.
6.Michael A. Ross, “Obstructing Reconstruction: John Archibald Campbell and the Legal Campaign Against Louisiana’s Republican Government, 1868–1873,” Civil War History, Vol. 49, No. 3, 235–53 (2003), 241–2.
7.83 U.S. 36 (1873).
8.The Slaughter-House Cases are among the most widely dissected Supreme Court decisions. The most common slant, and the most obvious, is that Samuel Miller erred horribly, and in excising the privileges and immunities clause opened the door to rampant discrimination in the Redeemed South. Agreeing with conventional wisdom, however, is not the road to academic publication, and so a revisionist view has been taking shape. For example, David S. Bogen wrote, “Justice Miller used federalism in order to protect Reconstruction legislatures where significant numbers of African-Americans participated fully for the first time. His recital of the history and purpose of the Civil War Amendments centered on the Amendments’ design to protect African-Americans, and suggested sweeping federal power to accomplish that end. Gutting the Privileges and Immunities Clause compelled the Court to read the Equal Protection Clause broadly, and was indirectly responsible for the reapportionment decisions of the Warren Court.” (David S. Bogen, “Slaughter-House Five: Views of the Case.” Hastings Law Journal, Vol. 55, No. 2 (December 2003), 1130.
There are also those who argue, a good deal more persuasively, that voting, because of the many limitations that have traditionally been put on it—gender, property ownership, even age—cannot be considered a “privilege” of citizenship per se; it is a “political” rather than a “constitutional” right, and therefore must be left to political departments of government rather than the judiciary.
Certainly, that voting was a political act, not strictly a civil right, was supported by the prohibitions on certain classes of citizens, especially women, as the Court would unanimously rule in Minor v. Happersett in 1875. But the Fourteenth and Fifteenth Amendments seemed to have been intended to eliminate race as a legitimate barrier to the right to vote, to in fact create a “civil right” for African Americans who otherwise could have been barred from voting by criteria not applied to other races. It would then have been made a privilege of national citizenship not susceptible to being overturned by state law.
But once again, that interpretation would only become operative if the courts, and especially the Supreme Court, chose to rule that way. If not, after the Slaughter-House ruling, with federal privileges of citizenship no longer binding on the states without appended qualifications, unless the Court was willing to apply different reasoning in subsequent cases, discrimination and disfranchisement were certain to follow.
As they did.
Chapter 7: Equality by Law
1.Four seats, two on each side of the aisle, were held by splinter parties.
2.Congressional Globe, 41st Congress, 2nd session (May 13, 1870), 3,434.
3.Congressional Globe, 41st Congress, 2nd session (May 13, 1870), 767.
4.Congressional Globe, 41st Congress, 2nd session (May 13, 1870), 772.
5.18 Stat. 335 (1875).
6.New York Times, March 2, 1875, 6.
7.Chicago Daily Tribune, March 1, 1875, 4.
Chapter 8: The Uncertainty of Language
1.16 Stat. 141 (1870).
2.16 Stat. 140–6 (1870).
3.Kaczorowski, 163.
4.Kaczorowski, 163.
5.Charles Warren, The Supreme Court and United States History (Boston: Little, Brown and Company, 1923), 275.
6.Warren, Supreme Court, 275.
7.Brooklyn Daily Eagle, April 21, 1875, 2. Quoted in the New York Herald, December 8, 1873, 1.
8.John S. Goff, “The Rejection of United States Supreme Court Appointments,” The American Journal of Legal History, Vol. 5, No. 4 (October 1961): 365.
9.George H. Williams, “Reminiscences of the United States Supreme Court,” The Yale Law Journal, Vol. 8, No. 7 (April 1899): 299.
10.William H. Rehnquist, Centennial Crisis: The Disputed Election of 1876 (New York: Alfred A. Knopf, 2004), 132.
11.Widely quoted. See, for example, Lane, The Day Freedom Died, 231.
12.Quoted in Anthony Champagne and Dennis Pope, “Joseph P. Bradley: An Aspect of a Judicial Personality,” Political Psychology, Vol. 6, No. 3 (September 1985): 485.
13.Champagne and Pope, “Joseph P. Bradley,” 481, 485–6.
14.Champagne and Pope, “Joseph P. Bradley,” 485.
15.New Orleans Republican, June 28, 1874, 1.
16.92 U.S. 542 (1875).
17.92 U.S. 214 (1875).
18.L. C. Northrop to Charles Devens, January 14, 1879. Quoted by C. Peter Magrath, Morrison R. Waite: The Triumph of Character (New York: The Macmillan Company, 1963) 132.
Chapter 9: Rutherfraud Ascends, but Not Equal Rights
1.John Copeland Nagle, “How Not to Count Votes,” Columbia Law Review, Vol. 104, No. 6 (October 2004): 1734.
2.New York Times, November 6, 1876, 1.
3.Nagle, “How Not to Count Votes,” 1736.
4.New York Times, November 8, 1876, 1; November 9, 1876, 1.
5.Roy Morris Jr., Fraud of the Century. Rutherford B. Hayes, Samuel Tilden and the Stolen Election of 1876 (New York: Simon and Schuster, 2003), 218.
6.Allan Peskin, “Was There a Compromise of 1877?” The Journal of American History, Vol. 60, No. 1 (June 1973): 63.
Chapter 10: A Slight Case of Murder
1.Wheeling Daily Intelligencer (WDI), April 19 1872, 4. Wheeling Daily Register (WDR), April 19, 1872, 4. Each newspaper was four pages long and, unlike contemporary newspapers, featured the major local news on the back page.
2.WDR, April 22, 1872, 2.
3.WDR, May 9, 1873, 4.
4.WDR, July 22, 1873, 4.
5.WDI, August 29, 1873, 4.
6.According to statute, the case needed to be put before county court as an examining court before it could be tried in circuit court, and that had not been done.
7.WDR, March 3, 1875, 4.
8.WDI, December 23, 1876, 4.
9.WDI, November 19, 1877, 4.
10.WDI, April 3, 1878, 4.
11.WDI, January 24, 1880, 4.
12.80 U.S. 581 (1871).
13.14 Stat. 27. Italics added.
14.100 U.S. 303–312 (1880).
15.WDI, May 3, 1881, 4.
16.WDI, April 27, 1898, 5.
17.WDI, June 21, 1898, 6.
Chapter 11: Tightening the Knot
1.William Eleazar Barton, Pine Knot: A Story of Kentucky Life (New York: D. Appleton and Co., 1900).
2.Details of the crime from Richmond Daily Dispatch, December 2, 1878, 1.
3.Virginia G. Pedigo and Lewis G. Pedigo, History of Patrick and Henry Counties, Virginia (Baltimore: Genealogical Publishing Com, 1933).
4.Philip Alexander Bruce, History of the University of Virginia, 1819–1919: The Lengthened Shadow of One Man, Vol. III (New York: The Macmillan Company: 1920–22).
5.Bruce, University of Virginia, 112.
6.“Alexander Rives to James Madison, December 28, 1832,” Library of Congress, Manuscript Division, www.loc.gov/resource/mjm.23_1167_1169/?st=gallery.
7.Gaillard Hunt, ed., The Writings of James Madison, Vol. 9 (New York: G. P. Putnam’s Sons, 1903), 495.
8.Richmond Daily Dispatch, November 22, 1878, 3.
9.Staunton Spectator, December 17, 1878, 2.
10.Richmond Daily Dispatch, November 30, 1878, 3.
11.Richmond Daily Dispatch, December 10, 1878, 2.
12.New Orleans Daily Democrat, November 30, 1878, 4.
13.Richmond Daily Dispatch, December 5, 1878, 2.
14.Brooklyn Daily Eagle, Monday, October 20, 1879, 2.
15.New York Times, January 18, 1879, 4.
16.Chicago Daily Tribune, March 20, 1879, 2.
17.100 U.S. 313, 314.
18.Richmond Daily Dispatch, June 25, 1880, 3.
19.Jed Rubenfeld observed: “For me Strauder v. West Virginia, in which the Court held that the Fourteenth Amendment prohibited states from excluding blacks from jury service, is an easy case and a strong, clear example of the kind of paradigm-case reasoning I advocate.” Patrick Foley of Catholic University wrote: “By reversing the lower court, the Supreme Court incisively recognized that the protection offered by the Fourteenth Amendment included an assurance of Federal protection from legislation unfriendly to the Negroes as a class in order that they might enjoy the civil rights enjoyed by the white race . . . That the equal protection clause guarantees protection by the Federal Government against State denial thereof is clear.” Michael Klarman added: “[The Court’s] ruling in Strauder v. West Virginia that juries because of their race, either by statute or through the deliberate exercise of administrative discretion, violated the Fourteenth Amendment.” In fact, when Rives is added in, it is apparent that the Court did no such thing.
20.103 U.S. 401 (1881).
21.103 U.S. 401 (1881).
Chapter 12: Strangling the Constitution
1.109 U.S. 3 (1883). The New York plaintiff, William R. Davis, was a twenty-six-year-old employee of a black weekly newspaper, the Progressive American, who had been born a slave in South Carolina.
2.Horatio Seymour, “The Political Situation,” The North American Review. Volume 136, Issue 315 (February 1883): 155.
3.C. Vann Woodward, Origins of the New South, 1877–1913 (Baton Rouge: Louisiana State University Press, 1951), 216. Hayes had left office in 1880 and been replaced by James Garfield. But Garfield had been assassinated, and Roscoe Conkling associate Chester Arthur was president.
4.Quoted in Alan F. Westin, “John Marshall Harlan and the Constitutional Rights of Negroes: The Transformation of a Southerner,” The Yale Law Journal, Vol. 66, No. 5 (April 1957).
5.Quoted in Westin, “John Marshall Harlan,” 653.
6.Quoted in Westin, “John Marshall Harlan,” 660.
7.Quoted in Westin, “John Marshall Harlan,” 666.
8.109 U.S. 10 (1883).
9.109 U.S. 24–5 (1883).
10.Oliver Wendell Holmes Jr., The Common Law (Boston: The Little, Brown & Company, 1881) 35.
11.Italics added.
12.Italics added.
13.New York Times, October 16, 1883, 4.
14.Brooklyn Daily Eagle, October 16, 1883, 2.
15.The Atlanta Constitution, Oct 16, 1883, 1.
16.Hartford Courant, October 16, 1883, 2.
17.All quoted in Valeria W. Weaver, “The Failure of Civil Rights 1875–1883 and Its Repercussions,” The Journal of Negro History, vol. 54, no. 4 (Oct. 1969): 371–2.
18.Quoted in Westin, “John Marshall Harlan,” 668.
Chapter 13: The Curious Incident of the Chinese Laundry and Equal Protection
1.Sutter never did make any money on the find. Eventually, he transferred ownership of what remained of his land to his son, who laid out a city he called Sacramento. Sutter was furious—he had wanted it to be called Sutterville. The elder Sutter moved east to Pennsylvania and, while engaged in an unsuccessful fifteen-year crusade to persuade Congress to pay him restitution for his stolen land, died in a Washington, D.C., hotel in 1880.
2.Previous pacts, such as the Treaty of Tianjin in 1858, gave the United States and some European powers access to Chinese ports, allowed Christian missionaries to operate freely, and legalized the import of opium, giving the Chinese nothing in return, except the promise not to overrun their country.
3.43rd Congress, 2nd Session, Ch. 141 (1875).
4.Paul Kens, Justice Stephen Field: Shaping Liberty from the Gold Rush to the Gilded Age (Lawrence: University Press of Kansas, 1997) 205.
5.Kens, Justice Stephen Field, 212.
6.Ah Kow v. Nunan. 12 F. Cas. at 253, 256–57.
7.He also asserted that the law violated the provisions of the Burlingame Treaty.
8.The law was tested, but in a unanimous 1889 decision, authored by Stephen Field, the Court ruled that the United States was within its rights to enact legislation that abrogated provisions of previously negotiated treaties.
9.A Caucasian woman named Mary Meagles was also turned down for reasons never made explicit.
10.New York Times, December 2, 1888, 4.
11.Douglas S. Watson, “The San Francisco McAllisters,” California Historical Society Quarterly, Vol. 11, No. 2 (June 1932): 124–8.
12.Roughly $3 million today. New York Times, December 2, 1888, 4.
13.Others in the family achieved notoriety of their own. Sam Ward eventually did do a spot of mining and made a bit of money, but not nearly as much as when he returned east and married the eldest daughter of John Jacob Astor. His sister Julia married an abolitionist physician, Samuel Gridley Howe, became a noted poet, advocated for women’s suffrage, and eventually wrote “Battle Hymn of the Republic.”
14.In re Wo Lee, 26 E 471, 476 (C.C.D. Cal. 1886).
15.United States Supreme Court Reports, volume 59, 1013–15.
16.111 U.S. 703 (1885), italics added. Willingness to take public statements, sociological factors, or motivation into account when judging the constitutionality of a law has been inconsistently applied by the Court. In some cases, Brown v. Board of Education being among the most prominent, the Court did so, but on other occasions, Hawaii v. Trump, for example, the Court ignored public pronouncements as to a law’s intent.
17.118 U.S. 356 (1886).
18.Although not entirely. There is currently a Yick Wo Alternative Elementary School in San Francisco. Their school mascot is a panda.
19.Hall McAllister died on December 1, 1888. As reported in The New York Times: “He had been suffering from nervous prostration brought on by overwork for the past six months and his death has been expected for some time.” On April 15, 1905, 1,000 people stood in the rain to see a statue of McAllister unveiled near San Francisco City Hall and hear him praised as the “foremost advocate” of the city’s bar. The statue was mounted on a granite pedestal, which held the inscription LEARNED, ELOQUENT, UNTIRING. A FEARLESS ADVOCATE, A COURTEOUS FOE. The statue still stands.
20.United States Supreme Court Reports, Volume 118 (1885), 409.
21.118 U.S. 394 (1886). Waite later confirmed in correspondence with the court reporter that the transcript was correct.
22.See, for example, Gabriel J. Chin, “Unexplainable on Grounds of Race: Doubts About Yick Wo,” University of Illinois Law Review, 2008, and David Bernstein, “Revisiting Yick Wo v. Hopkins,” George Mason University Law and Economics Research Paper Series, 2008.
Chapter 14: Mississippi Leads the South
1.Jerrold M. Packard, American Nightmare: The History of Jim Crow (New York: Macmillan, 1992), 41.
2.Thomas B. Reed, “The Federal Control of Elections,” The North American Review, Vol. 150, No. 403 (June 1890): 677.
3.Reed, “Federal Control,” 671.
4.Reed, “Federal Control,” 675.
5.William Alexander Mabry, “Disenfranchisement of the Negro in Mississippi,” The Journal of Southern History, Vol. 4, No. 3 (August 1938).
6.Earl M. Lewis, “The Negro Voter in Mississippi,” in “The Negro Voter in the South,” special issue, The Journal of Negro Education, Vol. 26, No. 3, (Summer 1957), 330.
7.Mabry, 319.
8.S. S. Calhoon, “The Causes and Events that Led to the Calling of the Constitutional Convention of 1890,” in Mississippi Historical Society, Publications (Oxford, etc., 1897–1914; Centenary Series, 1916–1925), vol. VI (1902), 107. Quoted in Mabry, “Disenfranchisement,” 319.
9.Quoted in Mabry, “Disenfranchisement,” 319.
10.Mabry, “Disenfranchisement,” 320.
11.Woodward, Origins, 72–3.
12.“Report of the Annual Meeting of the Mississippi Bar Association” (Jackson, MS: Clarion Steam Printing, 1888), 14–15.
13.Timothy S. Huebner, “Emory Speer and Federal Enforcement of the Rights of African Americans, 1880–1910,” American Journal of Legal History, Vol. 54 (January 2015): 47–8.
14.The North American Review, Vol. 151, No. 406 (September 1890), 258.
15.Michael Perman, Struggle for Mastery: Disfranchisement and the South 1888–1908 (Chapel Hill: University of North Carolina Press, 2001), 74.
16.The Magnolia Gazette, August 2, 1890, 2.
17.Woodward, Origins, 72.
18.Quoted in Packard, American Nightmare, 69.
19.Jackson Daily Clarion-Ledger, August 7, 1890, 4.
20.Natchez Daily Democrat, August 12, 1890, 2.
21.Perman, Struggle for Mastery, 80.
22.Mabry, “Disenfranchisement,” 326.
23.Collier’s, July 6, 1946, 18.
24.J. W. Sumers, “The Grandfather Clause,” Lawyer & Banker & Southern Bench & Bar Review, Vol. 7 (1914): 39.
25.Perman, Struggle for Mastery, 86.
Chapter 15: The First Test
1.W. Lewis Burke, “Killing, Cheating, Legislating, and Lying: A History of Voting Rights in South Carolina after the Civil War,” South Carolina Law Review, Vol. 57 (2006): 869.
2.Daniel M. Robison, “From Tillman to Long: Some Striking Leaders of the Rural South,” The Journal of Southern History, Vol. 3, No. 3 (August 1937): 295.
3.Robison, “From Tillman to Long,” 297.
4.Stephen Kantrowitz, “Youngest Living Carpetbagger Tells All: Or, How Regional Myopia Created ‘Pitchfork’ Ben Tillman,” Southern Cultures, Vol. 8, No. 3 (Fall 2002): 19.
5.Burke, 867.
6.Burke, 870.
7.Burke, 870.
8.Perman, 104.
9.R. Volney Riser, Defying Disfranchisement (Baton Rouge: Louisiana State University Press, 2010).
10.67 Federal Reporter, 822.
11.Riser, 24.
12.67 Federal Reporter, 831.
13.67 Federal Reporter, 832.
14.Yorkville (South Carolina) Enquirer, May 15, 1895, 2.
15.Riser, 27.
16.New York Times, May 1, 1888, 5; Brooklyn Daily Eagle, April 30, 1888, 6. The Daily Eagle was somewhat more praising of Fuller’s qualifications than was the Times.
17.New-York Tribune, May 1, 1888, 1.
18.Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (New York: Oxford University Press, 2004), 16.
19.Green v. Mills. U.S. Courts of Appeals Reports, v. 25 (1894–1896), 383–406.
20.Riser, 29.
21.Quoted in Perman, 100.
22.Quoted in Perman, 100.
23.(Sumter, South Carolina) Watchman and Statesman, October 16, 1895, 1.
24.159 U.S. 651 (1895).
25.Riser, 33.
Chapter 16: Peer Review
1.“Anselm J. McLaurin (late a senator from Mississippi)” (Washington, D.C.: U.S. Government Printing Office, 1911), 10. Senators were not elected by popular vote until 1914.
2.162 U.S. 567 (1895).
3.162 U.S. 574 (1895).
4.Washington D.C. Evening Star, October 31, 1895, 16.
5.Washington Bee, December 21, 1895, 1.
6.162 U.S. 565.
7.163 U.S. 537.
8.Greenville Times, December 12, 1896, 2.
9.Greenville Times, November 5, 1898, 2.
10.Quoted in “Contested election case of Cornelius J. Jones vs. T. C. Catchings in House of Representatives of 56th Congress of the United States: brief of contestant” (Washington, D.C.: U.S. Government Printing Office, 1894), 18–19.
11.“Contested election case of Cornelius J. Jones,” 17.
12.Vicksburg Commercial Herald, January 5, 1899, 4.
13.170 U.S. 213 (1898).
14.170 U.S. 213 (1898), 214.
15.Field retired December 1, 1897. Despite encroaching senility, he had refused to resign until his tenure exceeded that of John Marshall, a display of hubris that aroused the enmity of his fellows, but since senility does not constitute a violation of “good behavior,” neither they nor anyone else who disapproved of Field’s stubbornness could do anything about it.
16.Roger Brooke Taney and Edward Douglass White were the previous two.
17.New York Times, January 15, 1898, 4.
18.Edward Purcell, “The Particularly Dubious Case of Hans v. Louisiana: An Essay on Law, Race, History, and Federal Courts,” North Carolina Law Review (June 2003): 2010.
19.170 U.S. 213 (1898).
20.170 U.S. 213 (1898).
21.Michael J. Klarman, “The Plessy Era,” The Supreme Court Review, Vol. 1998, 362–3.
22.Reports of Cases Adjudged in the Court of Appeals of the District of Columbia, Vol. 45 (1917): 440–1.
Chapter 17: Refining Redemption
1.Sumers, 40.
2.Quoted in George E. Cunningham, “Constitutional Disenfranchisement of the Negro in Louisiana, 1898,” Negro History Bulletin, Vol. 29, No. 7 (April 1966): 147.
3.Quoted in Mabry, 299.
4.Riser, 77.
5.Sumers, 40.
6.Mabry, 292.
7.“State Constitution of Louisiana, 1898, Suffrage and Elections,” Yale University, Gilder Lehrman Center, glc.yale.edu/state-constitution-louisiana-1898-suffrage-and-elections.
8.Mabry, 309.
9.New Orleans Times-Democrat, March 22, 1898, 2.
10.The Daily Picayune (New Orleans), Feb. 21, 1898, 2.
11.Helen G. Edmonds, The Negro and Fusion Politics in North Carolina, 1894–1901 (Chapel Hill: University of North Carolina Press, 1951), 141.
12.Mabry, 3.
13.The Caucasian (Clinton, N.C.), April 26, 1900, 3.
14.Winston (N.C.) Progressive Farmer, August 7, 1900, 3.
15.Wilmington (N.C.) Semi-Weekly Messenger, August 7, 1900, 4.
16.Perman, 18.
17.Wayne Flynt, “Alabama’s Shame: The Historical Origins of the 1901 Constitution,” Alabama Law Review, Vol. 53 (2001): 69.
18.Flynt, 69.
19.Flynt, 70.
20.Flynt, 70.
21.Journal of the Proceedings of the Constitutional Convention (1901), 8–9.
22.Journal, 12.
23.Journal, 9.
24.Journal, 9.
25.Quoted in Riser, 115–6.
26.New York Times, June 9, 1901, 1.
27.New York Times, November 12, 1901, 2.
28.Riser, 136.
29.New York Times, November 12, 1901, 2
Chapter 18: Forging an Attack
1.New-York Tribune, September 18, 1895, 1.
2.New York Times, September 19, 1895, 1.
3.New York Times, September 19, 1895, 1.
4.See Timothy S. Huebner, “Emory Speer and Federal Enforcement of the Rights of African Americans, 1880-1910,” American Journal of Legal History, Vol. 54 (January 2015).
5.Indianapolis Sunday Journal, September 15, 1895, part 2, 12.
6.New York Times, September 19, 1895, 1.
7.New York Times, September 19, 1895, 5.
8.New-York Tribune, September 19, 1895, 6.
9.“Letter from W. E. B. Du Bois to Booker T. Washington, September 24, 1895,” Columbia College, www.college.columbia.edu/core/content/letter-web-du-bois-booker-t-washington-september-24-1895.
10.Louis R. Harlan, “The Secret Life of Booker T. Washington,” The Journal of Southern History, vol. 37, no. 3 (August 1971): 396.
11.W. E. B. Du Bois, Souls of Black Folk: Essays and Sketches (Chicago: A. C. McClurg, 1903), 45.
12.Harlan, 394.
13.Riser, 102–3.
14.Wichita Daily Eagle, November 25, 1897, 1.
15.177 U.S. 442 (1900).
16.177 U.S. 448–9.
Chapter 19: The Window Slams Shut
1.Perman, 318.
2.Riser, 151.
3.Wilford H. Smith, “The Negro and the Law,” The Negro Problem: A Series of Articles by Representative American Negroes of Today (New York: James Pott and Company, 1903), 144.
4.Smith, The Negro Problem: A Series of Articles by Representative American Negroes of Today, 151–2.
5.Richard Pildes, “Democracy, Anti-Democracy and the Canon,” Constitutional Commentary (University of Minnesota Law School, 2000), 303.
6.Riser, 165.
7.Riser, 167.
8.189 U.S. 475–6 (1903).
9.189 U.S. 480–1 (1903).
10.Gary Aichele, Oliver Wendell Holmes, Jr.: Soldier, Scholar, Judge (Woodbridge, CT: Twayne Publishing, 1989), 155.
11.189 U.S. 475 (1903).
12.Pildes, “Democracy,” 296.
13.Charles A. Kent, Memoir of Henry Billings Brown (New York: Vail-Ballou Company, 1915), 92.
14.Kent, 113.
15.In view of jurisdictional issues, Smith tried again, this time suing for damages, but in Giles v. Teasley lost once more, with only Justice Harlan dissenting.
16.In 2000, Richard Pildes wrote: “Giles has been airbrushed out of the constitutional canon. It is surely one of the most momentous decisions in United States Supreme Court history and one of the most revealing. Yet, as far as I can tell, it receives nary a mention in four of the leading Constitutional Law casebooks. A fifth, the most historically oriented, notices the case but in an uncharacteristically legalistic footnote that hardly conveys the stakes. Professor Tribe’s magisterial treatise does not cite it. Giles permits the virtual elimination of black citizens from political participation in the South. Yet while extensive attention is devoted to judicial validation of separate but equal segregation, none is devoted to this.” He added, “Giles reflected and shaped a constitutional culture in which the large issues of democratic governance and institutional structure were, like unknown territories on a medieval map, cast as threatening monsters and placed outside the known domains of constitutional law.” (“Democracy, Anti-Democracy, and the Canon,” Constitutional Commentary [University of Minnesota Law School, 2000], 297.)
Primarily because of Professor Pildes, who described Holmes’s opinion as “wedding legalism with realpolitik into one of the most fascinatingly repellant analyses in the Court’s history,” Giles has since received more notice, and many recent characterizations have been more critical. One scholar called Giles “an especially noteworthy feat of judicial legerdemain . . . silently condoning states that had adopted new voting rules to deny blacks the vote at the end of the nineteenth century” and “cynical and disingenuous.” (Daniel P. Tokaji, “The Sordid Business of Democracy,” Ohio Northern University Law Review, Vol. 34, No. 2 [2008], 344.) Another wrote that Holmes “framed the case . . . as being about political rights as opposed to race. [He] suggested that political rights cases are not justiciable and that the political process itself must supply the remedy to political wrongs. If race cases are truly political rights cases, and political rights cases are not justiciable, then Giles clearly imports that claims alleging racial discrimination in the political process are also nonjusticiable.” (Guy-Uriel E. Charles, “Democracy and Distortion,” Cornell Law Review. Vol. 92 [May 2007], 626.) Others claimed claimed Holmes’s opinion “ingeniously evaded reaching the merits of the allegations that the African American electorate had been disenfranchised.” (Gabriel J. Chin and Randy Wagner, “The Tyranny of the Minority: Jim Crow and the Counter-Majoritarian Difficulty,” Harvard Civil Rights-Civil Liberties Law Review [Winter 2008], 294.)
But analyzing Holmes’s opinion in legalisms is largely beside the point. Giles should be viewed, as Holmes thought, as a political question.
17.Two Holmes critics later wrote, “This case represents a clear example of Justice Holmes allowing his racist views to shade his constitutional decision-making . . . [his] performance is nothing short of appalling . . . Even aside from his atrocious eugenics opinion, Justice Holmes’s deprivation of the right of African-Americans to vote is an egregious constitutional error. As in Buck v. Bell, Justice Holmes was judicially restrained in Giles v. Harris when the law called for judicial activism to enforce a real legal right conferred by the Fifteenth Amendment.” (Steven G. Calabresi and Hannah M. Begley, “Justice Oliver Wendell Holmes and Chief Justice John Roberts’s Dissent in Obergefell v. Hodges,” Elon Law Review, Vol. 8, No.1 [2016], 30.)
18.Morris B. Hoffman, “Reviewed work: Law without Values: The Life, Work and Legacy of Justice Holmes by Albert W. Alschuler,” Stanford Law Review, Vol. 54, No. 3 (December 2001): 612.
19.To Holmes’s point about the inability to enforce a decision in Giles’s favor, Michael Klarman, although speaking in this instance about Plessy v. Ferguson, wrote: “Given the background state of race relations at the turn of the century and the limited capacity of the Supreme Court generally to frustrate dominant public opinion, it may be implausible to think that the Justices realistically could have reached different results in these cases . . . it may be fanciful to expect the Justices to have defended black civil rights when racial attitudes and practices were as abysmal as they were at the turn of the century.”
But Professor Klarman and others who make that argument are missing an important point. The same criticism has been leveled at Brown v. Board of Education, in which not only did the justices unanimously take a position with which many Americans profoundly disagreed—and in the South that is a vast understatement—but it did not seem to have any positive impact, since segregation actually got worse in its wake. (It is unclear whether or not 1954 Americans, in the North at any rate, thought Brown was the right thing to do, although it is likely that most thought the Court had no business deciding who should go to what school.)
But Brown announced that, for the first time, the United States viewed segregation as wrong, even though the decision was confined to schools. And that mattered—as it turned out, it mattered a great deal. The following year, the Interstate Commerce Commission outlawed segregation on buses that traveled from one state to another, for the first time repealing the separate-but-equal doctrine. Five years later the ICC outlawed segregation in waiting rooms, and the year after in all interstate travel. Eventually, all forms of legal segregation slowly vanished—too slowly perhaps, but at least it got done. In other words, while the Court could not change behavior immediately, by ruling as it did, it set a tone that eventually moved the country in the direction it had mandated. Although one cannot know for certain, if the Court had ruled differently in Giles, it is possible that the impact of Jim Crow might have been mitigated.