African Americans and the Law
African Americans and the Law
ADAPTED FROM ESSAYS BY KIMBERLY GOFF-CREWS
While laws do not tell us everything about people's behavior, they do tell us what kinds of behavior a given society values, what it permits and even encourages, and what it prohibits. This fact has been particularly important in the history of African Americans.
During the era of slavery, their lives, families, and property were governed (though rarely protected) by laws they did not write, laws intended to permit, encourage, or prohibit the behavior of others toward them. Since Emancipation, and particularly in the twentieth century, African Americans have taken an active role in reshaping the nation's laws to better protect all citizens. Their struggle for equal justice under the law has been at the heart of a reinterpretation and broadening of constitutional protections for all Americans.
IN THE BEGINNING
From the early 1600s until the passage of the Thirteenth Amendment to the Constitution, African Americans' lives were governed by a series of laws and police regulations known as slave codes, originally passed by British colonial territories. These codes restricted the rights and privileges of African American slaves and freedmen and to some degree controlled how whites could or could not relate to them. The codes regulated a wide range of activities, including access to education, travel, and marriage. They undergirded the institution of slavery, protecting whites from possible violence against them by slaves while enforcing their absolute right to control all aspects of the lives of Africans and their descendants on this continent.
In 1787, the original thirteen colonies ratified the Constitution, which, in concert with the Bill of Rights (the first ten amendments to the Constitution), set forth the rights and privileges afforded to all citizens of the newly formed nation. The original language of the Constitution made it evident that the term "citizen" did not include Africans and their descendants, whether slave or free. For example, paragraph 3 of Article I, Section 2, referred to people of African descent as "three fifths of all other Persons"—thus the term "three-fifths of a man. "Furthermore, paragraph 3 of Article IV, Section 2, required that runaway slaves be returned to their masters and effectively denied them the right to be free of servitude should they escape to a state that prohibited slavery.
SEE PRIMARY SOURCE DOCUMENT Excerpt from the Denmark Vesey Trial Record
THE CASE OF DRED SCOTT
The Supreme Court underscored the fact that people of African descent were not citizens in the case ofDred Scott v. Sandford. In that case, Dred Scott (1809-1858) and his wife, both slaves owned by an army physician, moved with their master from a military post in a slave state to one in a free state. While there, the couple gave birth to two children. Upon returning to the slave state, Scott sued his owner for his and his family's freedom on the ground that they had lived in the free state. The trial court ruled in his favor, but the Missouri Supreme Court reversed the ruling.
While the case was being appealed, Dred Scott and his family were bequeathed to another owner. Scott later sued the second owner, a New York native, in federal court, pursuant to laws allowing citizens from different states involved in a single legal action to petition the federal government for redress. The Supreme Court was thus confronted by the issue of whether African Americans were U.S. citizens and thus entitled to sue in federal court. Its decision was based on the constitutional framers' understanding of the term "citizen."
Reviewing the slave codes, the Declaration of Independence, the Constitution, other laws, and the pervasiveness of black servitude, the Court concluded that persons of African descent were not and were never intended to be citizens of the United States. Indeed, the Court stated that blacks "had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit."
SEE PRIMARY SOURCE DOCUMENT Chief Justice Roger Taney's Majority Decision in Dred Scott v. Sandford
FROM SLAVE CODES TO BLACK CODES
The North's defeat of the South in the Civil War and the passage of the Thirteenth Amendment banning slavery signaled an end to the slave codes. However, during the Reconstruction era, reconstituted Southern state governments passed "black codes" that curtailed the rights of the newly freed slaves. Similar to the former slave codes in tone and intent, the black codes restricted African Americans' rights to own land, carry weapons, or marry anyone outside their race.
SEE PRIMARY SOURCE DOCUMENT The Thirteenth Amendment
Over the objections of southern politicians, Radical Republicans passed the Fourteenth and Fifteenth Amendments in 1868 and 1870 respectively in order to address the growing southern backlash, as demonstrated by the codes and antiblack riots. The Fourteenth Amendment states that all persons born or naturalized in this country are citizens, while the Fifteenth Amendment guarantees all male citizens the right to vote. (Women received the right to vote when the Nineteenth Amendment was ratified in 1920.) SEE PRIMARY SOURCE DOCUMENT The Fourteenth Amendment
To circumvent the Fifteenth Amendment, southern states passed "Jim Crow" laws designed to deny African Americans the right to vote. The laws created procedures and tests that essentially disqualified African Americans from voting. Such measures ranged from literacy tests, property requirements, and poll taxes to the infamous Louisiana "grandfather" clause whereby only those persons whose ancestors had voted before the ratification of the two amendments were eligible to vote. The Jim Crow laws were not neutralized until the passage of the Voting Rights Act of 1965.
THE FOURTEENTH AMENDMENT AND PLESSY v. FERGUSON
The Fourteenth Amendment guarantees to all citizens many of the fundamental rights of citizenship explicitly or implicitly outlined in the Bill of Rights. Section 1 of the amendment specifically provides that "all persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law;nor deny to any person within its jurisdiction the equal protection of the laws. "
Note that the Fourteenth Amendment prohibits unlawful interference with citizens' rights on the part of a state government, as opposed to the federal government or private individuals. Thus, in order for the Fourteenth Amendment to be applicable in a case, there must be some showing that state action is involved. This requirement is met when the suing party establishes that a governmental entity, a government official, or a private individual or entity performing a government function is responsible for the offensive activity.
In addition, the amendment's prohibitions are invoked when private individuals discriminate against fellow citizens with the encouragement of laws enacted by the government. Examples of this include regulations mandating segregated public accommodations and enforcement of contractual agreements between private individuals that prevent the sale of land to black persons.
Some of the pivotal cases concerning this amendment interpret the equal protection clause with respect to racial classifications. The clause specifically prohibits the denial of equal treatment. In Plessy v. Ferguson (1896), the Supreme Court struggled to determine what constitutes equal protection. The immediate question was whether Louisiana could establish and enforce separate but equal railway facilities for black and white patrons without violating the equal protection clause of the Fourteenth Amendment. Homer Plessy, a biracial African American who could pass as a white person, had been ejected from the white section of a train and taken to a local jail. Plessy argued that segregation not only violated the amendment but also "stamps the colored race with a badge of inferiority. "The Court disagreed, stating that the amendment was designed to create equality before the law but not to "abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either."
SEE PRIMARY SOURCE DOCUMENT The Ruling in Plessy v. Ferguson and Justice John Marshall Harlan's Dissent
THE FIGHT FOR EQUAL RIGHTS UNDER THE FOURTEENTH AMENDMENT
Despite Plessy v. Ferguson and the setbacks of the post-Civil War years, the Fourteenth and Fifteenth Amendments gave those fighting for the rights of African Americans a constitutional basis upon which to launch what would be a series of long legal battles for equality and justice. The individual plaintiffs who courageously fought these battles were supported by their families and communities and were often represented by attorneys working for the Legal Defense Fund (LDF) of the National Association for the Advancement of Colored People. Since its inception in 1939, the LDF has served as the legal arm of the civil rights movement.
From 1896 to 1954,"separate but equal" was the law of the land, with segregated restaurants, transportation services, and other public facilities a part of the canvas of American life. Prodded by cases developed by the LDF, the courts eventually turned their attention to the definition of "equal" under this judicial doctrine.
According to Plessy v. Ferguson, "equal" meant that facilities were "substantially similar" to each other. This question was explored in a series of education cases in which, to determine whether the "substantially similar" test was met, courts typically compared facilities, staff, and books and supplies. In Sweatt v. Painter (1950), the Supreme Court also analyzed intangible qualities, such as a school's reputation, the quality of its faculty, and the potential influence of its alumni, to determine whether the "substantially similar" test had been met.
In 1954, the Supreme Court reversed the "separate but equal" doctrine in the landmark decision ofBrown v. Board of Education (sometimes called Brown I ). A stellar group of LDF attorneys litigated the case, including Thurgood Marshall (1908-1993), who eventually became the first African American to serve on the Court. In consolidated cases from four states, the parents of African American schoolchildren requested admission to all-white secondary schools in their communities.
The cases were carefully selected to challenge the "separate but equal" doctrine at its core. In the school districts in question, there were "substantially similar" schools for black children, but the students contended that segregated schools were unconstitutional per se, a violation of the equal protection clause of the Fourteenth Amendment. Having reviewed numerous sociological and psychological studies showing the negative effects of segregation on black schoolchildren's self-esteem and educational potential, the Court concluded that "separate educational facilities are inherently unequal" and firmly rejected the "separate but equal" doctrine. In Bolling v. Sharpe (1954), the Court extended this ruling to public school systems in the District of Columbia using the equal protection clause of the Fifth Amendment, since the Fourteenth Amendment applies only to state actions.
As a result ofBrown I, legal barriers to equal treatment in other aspects of African American life were also removed. The most visible change occurred when a series of court cases found segregated public facilities unconstitutional. In Mayor and City Council of Baltimore v. Dawson (1955), segregated public beaches and bath-houses were outlawed; in Gayle v. Browder (1956), segregated municipal buses were outlawed;New Orleans Park Development Association v. Detiege (1958) prohibited segregated public parks and golf courses; and Turner v. City of Memphis (1962) outlawed segregated restaurants in municipal airports. Access for all citizens was further secured by the passage of the Civil Rights Act of 1964, which prohibited discrimination in any private business or facility that serves the public.
Ultimately, the Fourteenth Amendment and the painstaking but persistent challenges to the status quo raised by African American plaintiffs have assured all citizens of many basic rights. For example, in the landmark case ofPowell v. Alabama (1932), the Supreme Court held that, pursuant to the Sixth Amendment as applied to the states by the Fourteenth Amendment, the young African American male defendants in the notorious Scottsboro trial had an automatic right to counsel. The case established a fundamental right to legal services where defendants are found to be incapable of protecting themselves against the full weight of the law.
In 1967, the Court reversed vestiges of the slave and black codes when it held in Loving v. Virginia that laws prohibiting interracial marriage violated the Fourteenth Amendment. And in Shelley v. Kraemer (1948), the Court prohibited the enforcement of racial covenants or contractual agreements between whites to prevent the sale of property to African Americans and other "non-Caucasians."
THE REVOLUTION IN EDUCATION
Perhaps no decisions have had a more profound impact on African Americans than the Brown decisions. As described above, the Supreme Court abolished de jure or legal segregation in Brown I. In Brown II (1955), the Court ruled that the methods used to desegregate schools should be developed by local school authorities "with all deliberate speed," while the district courts would monitor progress toward that end.
Since then, school districts and legislative bodies across the country have struggled with various methods of desegregating schools and promoting diversity. Some local authorities have actively resisted certain methods, such as busing students to schools outside their neighborhoods, while others have questioned what constitutes a desegregated school system. Progress was excruciatingly slow during the first fifteen years after the decisions were handed down, and the Court ultimately moved from sanctioning desegregation efforts made at "deliberate speed" to demanding that some progress be made "at once" in the case ofAlexander v. Holmes County Board of Education (1969).
In Swann v. Charlotte-Mecklenburg Board of Education (1971), the Court discussed certain key issues related to desegregation of schools. It determined that racial quotas could be used as a starting point in determining what degree of racial balance needs to be achieved. However, racial quotas were not to be an end unto themselves. The Court also declared that actionable de jure segregation did not exist where there was a small number of one-race or racially segregated schools, provided authorities could prove that the racial composition was not a result of discriminatory state action. Students in such schools should be allowed to transfer to other schools where they would be in the minority.
The Court also approved the creation of school districts of varying sizes and populations (gerrymandering) to provide racially diverse school-age populations, as well as the use of busing plans to achieve proper results. With respect to busing, the Court noted that plans were not permissible where the time and distance traveled would be physically or mentally unhealthy for students.
Finally, in Regents of the University of California v. Bakke (1978), the Court reviewed the validity of preferential treatment based on race in the college admissions process. In that case, Allan Bakke, a white male applicant to the University of California at Davis Medical School, alleged that he had been denied admission despite superior grades because of a special admissions program that set aside a certain number of places for disadvantaged students. After reviewing the facts, the Court determined that Bakke was indeed denied admission on the basis of race, in violation of the equal protection clause of the Fourteenth Amendment and Title VI of the 1964 Civil Rights Act. It noted that race could be one of the factors used to determine admission but could not be the sole basis for admission.
CONGRESSIONAL ACTION AND CIVIL RIGHTS PROGRESS IN OTHER AREAS
Demonstrations, sit-ins, student protests, and lengthy court battles engaged in by African Americans and citizen groups assured that Congress would be an active partner with the courts in the drive to make the constitutional promise of equal justice a reality for all Americans. Not only has congressional action further institutionalized the Court's interpretation of constitutional rights (and vice versa), but in many cases it has regulated private discriminatory acts that could not be enforced under the Fourteenth Amendment without proof of state action. Examples include the Civil Rights Act of 1968, which made discriminatory practices in the sale and rental of housing units illegal, and the Voting Rights Act of 1965, which outlawed many state attempts to undermine African American voting rights through literacy tests, reapportionment of districts, and burdensome voter qualifications.
Job discrimination was tackled in Title VII of the Civil Rights Act of 1964, which outlaws discrimination by employers, employment agencies, and labor unions on the basis of race, color, religion, or national origin. Employees are specifically protected from intentional discrimination in these categories, from hostile work environments, and from segregation in the workplace. In addition, according to Griggs v. Duke Power Co. (1971), Title VII also bans unintentional discrimination: "practices that are fair in form, but discriminatory in operation. "However, where the discriminatory impact was not intended, the particular practice is permissible if it constitutes a "business necessity. "Thus, in Griggs, a requirement that applicants have a high school diploma and pass an IQ test was impermissible, even though not discriminatorily applied, because it was not relevant to the job performance needed and unduly affected the minority applicant pool.
Despite considerable progress, the nation's struggles with issues of race continue to be played out against the backdrop of legal history. African Americans still encounter discrimination from private individuals and businesses, and they continue to challenge it, as in the case of those who sued Denny's Corp. for systematically refusing to serve minority customers, requiring them to prepay for their meals, and seating them in specific sections of restaurants."White flight" to the suburbs has once again created single-race school districts, hampering the ability of school authorities to develop the diverse student populations envisioned by the Court in Brown v. Board of Education. This too is being challenged, as in the case of Sheff v. O'Neill in the Connecticut courts in 2002.
Challenges to the gains of the past are also ongoing. New attempts to deny rights to illegal and legal aliens, bilingual students, and others threaten to revive old battles fought by the civil rights movement. The canvas of legal history continues to be painted as courageous politicians, civil rights leaders, attorneys, and average citizens—people who believe in the underlying principles of the Declaration of Independence and the Constitution and its amendments—fight to make true equality a reality for all citizens.
Eastland, Terry. Counting by Race: Equality from the Founding Fathers to Bakke and Weber. New York: Basic Books, 1979.
Fede, Andrew. People without Rights: An Interpretation of the Fundamentals of the Law of Slavery in the U.S. South. New York: Garland, 1992.
Finkelman, Paul. Slavery in the Courtroom: An Annotated Bibliography of American Cases. Washington, D.C.: Library of Congress, 1985.
——, ed. Emancipation and Reconstruction. New York: Garland, 1992.
——, ed. The Era of Integration and Civil Rights. New York:Garland, 1992.
Flanigan, Daniel J. The Criminal Law of Slavery and Freedom: 1800-1868. New York: Garland, 1987.
Greenberg, Jack. Crusaders in the Courts: How a Dedicated Band of Lawyers Fought for the Civil Rights Revolution. New York:Basic Books, 1994.
Kull, Andrew. The Color-Blind Constitution. Cambridge: Harvard University Press, 1992.
Lofgren, Charles A. The Plessy Case: A Legal-Historical Interpretation. New York: Oxford University Press, 1987.
Wilkinson, J. Harvie, III. From Brown to Bakke: The Supreme Court and School Integration: 1954-1978. New York: Oxford University Press, 1979.
PRIMARY SOURCE DOCUMENT
Excerpt from the Denmark Vesey Trial Record
In the year 1822, a ship's carpenter namedPeter Poyas was Denmark Vesey's second-in-command in a planned rebellion in Charleston, South Carolina. Entirely committed to the rebellion and of unquestioned loyalty, Poyas was given the assignment of capturing Charleston's main guardhouse. The thousands marshaled under Vesey's banner were then to attack and occupy the city itself. As Poyas had feared, their plans were betrayed by fellow servants, and the rebellion never went beyond the planning stages. One such servant offered testimony against Poyas in the trial that followed their arrest, resulting in the execution of both Vesey and Poyas, along with some thirty others. Reprinted here is a portion of the testimony given in the Denmark Vesey trial, namely the testimony given against Peter, "a Negro man, the property of Mr. James Poyas," with Robert Bentham, Esq., acting as his counsel.
Witness No. 5. A Negro man gave the following evidence: I know Peter, he belongs to Mr. James Poyas. In May last Peter and myself met in Legare Street, at the corner of Lambol Street, when the following conversation took place. He asked me the news—I replied none that I know of. He said by George we can't live so—I replied how will we do. He said we can do very well; if you can find anyone to assist us will you join. I asked him how do you mean—he said, why to break the yoke. I replied I don't know. He asked me suppose you were to hear that the whites were going to kill you would you defend yourself—I replied I'd try to escape. He asked have you lately seen Denmark Vesey, and has he spoken to you particularly—I said no. Well then said he that's all now, but call at the shop tomorrow after knocking off work and I will tell you more—we then parted. I met him the next day according to appointment, when he said to me, we intend to see if we can't do something for ourselves, we can't live so, I asked him where he would get men—he said we'll fined them fast enough, we have got enough—we expect men from country and town. But how said I will you manage it—why we will give them notice said he, and they will march down and camp round the city. But what said I will they do for arms—he answered they will find arms enough, they will bring down their hoes, axes, &c. I said that won't do to fight with here—he said stop, let us get candidates from town with arms, and we will then take the Guard House and Arsenal in town, the Arsenal on the Neck and the upper Guard House, and supply the country people with arms. How said I will you approach these Arsenals for they are guarded—yes said he, I know that, but what are those guards, one man here and one man there, we won't let a man pass before us. Well said I but how will the black people from the country and those from the Islands know when you are to begin; or how will you get the town people together—why said he we will have prayer meetings at night and there notify them when to start and as the clock strikes 12 all must move—But said I, the whites in the back country, Virginia, when they hear the news will turn to and kill you all, and besides you may be betrayed. Well said he what if that, if one gets hanged we will rise at that minute. We then left his shop and walked towards Broad Street, when he said I want you to take notice of all the shops and stores in town with arms in them, take down the numbers and give them to me. I said I will see to it and then we parted. About the 1st June I saw in the public papers a statement that the white people were going to build Missionary Houses for the blacks, which I carried and showed to Peter and said to him, you see the good they are going to do for us—when he said, what of that, have you not heard that on the 4th July the whites are going to create a false alarm of fire, and every black that comes out will be killed in order to thin them. Do you think that they would be so barbarous said I. Yes said he I do; I fear they have knowledge of an army from Santo Domingo, and they would be right to do it, to prevent us from joining that army if it should march towards this land. I was then very much alarmed—we then parted and I saw no more of him until (the Guards were very strict) about a fortnight ago. At that time I saw Peter and Ned Bennett standing and talking together at the corner of Lambol and Legare Streets—they crossed over and met me by Mrs. Myles, and Ned Bennett said to me, did you hear what those boys were taken up for the other day. I replied No, but some say 'twas for stealing. Ned asked me if I was sure I had never said anything to the whites about what Peter Poyas had spoken to me about—I replied No—says Peter you never did—No I answered—says Ned to me how do you stand—at which, I struck the tree box with my knuckles and said, as firm as this box, I'll never say one word against you. Ned then smiled and nodded his head and said, that will do, when we all separated. Last Tuesday or Wednesday week Peter said to me you see my lad how the white people have got to windward of us—you won't said I be able to do anything. O yes said he we will, by George, we are obliged to—he said all down this way ought to meet and have a collection to purchase powder. What said I is the use of powder, the whites can fire three times to our once—he said but 'twill be such a dead time of night they won't know what is the matter, and our Horse Companies will go about the streets and prevent the whites from assembling. I asked him where will you get horses—why said he there are many butcher boys with horses, and there are the public Livery Stables, where we have several candidates and the waiting men belonging to the white people of the Horse Companies will be told to take away their master's horses. He asked me if my master was not a horseman—I said yes. Has he not got arms in his house—I answered yes. Can't they be got at—I said yes—then said he 'tis good to have them. I asked him what was the plan—why said he after we have taken the Arsenal and Guard Houses, then we will set the town on fire in different places, and as the whites come out we will slay them; if we were to set fire to the town first, the main in the steeple would give the alarm too soon—I am the Captain said he, to take the lower Guard House and Arsenal. But, I replied, when you are coming up the sentinel will give the alarm—he said he would advance a little distance ahead, and if he could only get a grip at his throat he was a gone man, for his sword was very sharp; he had sharpened it and had made it so sharp it had cut his finger, which he showed me. As to the Arsenal on the Neck he said that is gone as sure as fate, Ned Bennett would manage that with the people from the country, and the people between Hibben's Ferry and Santee would land and take the upper Guard House. I then said, then this thing seems true. My man, said he, God has a hand in it, we have been meeting for four years and are not yet betrayed. I told him I was afraid after all of the white people from the back country and Virginia. He said that the blacks would collect so numerous from the country we need not fear the whites from other parts, for when we have once got the city we can keep them all out. He asked if I had told my boys—I said no—then he said you should do it, for Ned Bennett has his people pretty well ranged; but said he take care and don't mention it to those waiting men who receive presents of old coats from their masters or they'll betray us; I will speak to them. We then parted and I have not conversed with him. He said the rising was to take place last Sunday night (16th June)—that any of the colored people who said a word about this matter would be killed by the others—the little man who can't be killed, shot, or taken is named Jack, a Gullah Negro. Peter said there was a French company in town of 300 men fully armed—that he was to see Monday Gell about expediting the rising. I know that Mingo went often to Mr. Paul's to see Edwin, but don't know if he spoke with William. Peter said he had a sword and I ought to get one—he said he had a letter from the country, I think from St. Thomas', from a Negro man who belonged to the Captain of a Militia Company, who said he could easily get the key of the house where the Company's arms were put after muster, and take them all out and help in that way. This business originates altogether with the African Congregation in which Peter is a leader. When Bennett's Ned asked about those take up, he alluded particularly to Mr. Paul's William, and asked me if I had said anything to him about it.
The owner of Witness No. 5, testified as follows: My servant bears a good character. His general conduct is good. He was raised up in my family, and I would place my life in his hands.
PRIMARY SOURCE DOCUMENT
Chief Justice Roger Taney's Majority Decision in Dred Scott v. Sandford
Reprinted here is an account of the Court proceedings of the Dred Scott v. Sandford case. Note the infamous Majority Opinion, written by Chief Justice Taney, an invaluable document because (1) it provides insight into the convoluted reasoning of those in the highest circles of power who would see African Americans stripped of their rights of citizenship and (2) because the Dred Scott case, along with Plessy v. Ferguson, represent the two landmark decisions which guided more than a century's worth of legislation hampering the efforts of African Americans to gain equal footing under the law.
By way of ruling against Scott, Taney offers a seriously distorted review of early colonial law, ignoring the differing status of free and enslaved African Americans, as well as the rights accorded the latter under colonial law prior to the adoption of the Constitution. Despite the fact that the case would be undone by the Fourteenth Amendment in the following decade, Dred Scott provides a disturbing insight into the malleability of the law in the hands of pro-slavery judges and justices, as well as the ways in which legislation and legal manipulations would come to be used to retard the efforts of African Americans during the history of the nation, both preceding and following the Civil War.
Opinion: Mr. Chief Justice Taney delivered the opinion of the court.
This case has been twice argued. After the argument at the last term, differences of opinion were found to exist among the members of the court; and as the questions in controversy are of the highest importance, and the court was at that time much pressed by the ordinary business of the term, it was deemed advisable to continue the case, and direct a re-argument on some of the points, in order that we might have an opportunity of giving to the whole subject a more deliberate consideration. It has accordingly been again argued by counsel, and considered by the court; and I now proceed to deliver its opinion.
There are two leading questions presented by the record:
1. Had the Circuit Court of the United States jurisdiction to hear and determine the case between these parties? And
2. If it had jurisdiction, is the judgment it has given erroneous or not?
The plaintiff in error, who was also the plaintiff in the court below, was, with his wife and children, held as slaves by the defendant, in the State of Missouri; and he brought this action in the Circuit Court of the United States for that district, to assert the title of himself and his family to freedom.
The declaration is in the form usually adopted in that State to try questions of this description, and contains the averment necessary to give the court jurisdiction; that he and the defendant are citizens of different States; that is, that he is a citizen of Missouri, and the defendant & citizen of New York.
The defendant pleaded in abatement to the jurisdiction of the court, that the plaintiff was not a citizen of the State of Missouri, as alleged in his declaration, being a negro of African descent, whose ancestors were of pure African blood, and who were brought into this country and sold as slaves.
To this plea the plaintiff demurred, and the defendant joined in demurrer. The court overruled the plea, and gave judgment that the defendant should answer over. And he thereupon put in sundry pleas in bar, upon which issues were joined; and at the trial the verdict and judgment were in his favor. Whereupon the plaintiff brought this writ of error.
Before we speak of the pleas in bar, it will be proper to dispose of the questions which have arisen on the plea in abatement.
That plea denies the right of the plaintiff to sue in a court of the United States, for the reasons therein stated.
If the question raised by it is legally before us, and the court should be of opinion that the facts stated in it disqualify the plaintiff from becoming a citizen, in the sense in which that word is used in the Constitution of the United States, then the judgment of the Circuit Court is erroneous, and must be reversed.
…When a plaintiff sues in a court of the United States, it is necessary that he should show, in his pleading, that the suit he brings is within the jurisdiction of the court, and that he is entitled to sue there. And if he omits to do this, and should, by any oversight of the Circuit Court, obtain a judgment in his favor, the judgment would be reversed in the appellate court for want of jurisdiction in the court below. The jurisdiction would not be presumed, as in the case of a common-law English or State court, unless the contrary appeared. But the record, when it comes before the appellate court, must show, affirmatively, that the inferior court had authority, under the Constitution, to hear and determine the case. And if the plaintiff claims a right to sue in a Circuit Court of the United States, under that provision of the Constitution which gives jurisdiction in controversies between citizens of different States, he must distinctly aver in his pleading that they are citizens of different States; and he cannot maintain his suit without showing that fact in the pleadings.
…The question to be decided is, whether the facts stated in the plea are sufficient to show that the plaintiff is not entitled to sue as citizen in a court of the United States.
We think they are before us. The plea in abatement and the judgment of the court upon it, are a part of the judicial proceedings in the Circuit Court, and are there recorded as such; and a writ of error always brings up to the superior court the whole record of the proceedings in the court below. And in the case of the United States v. Smith, (11 Wheat., 172,) this court said, that the case being brought up by writ of error, the whole record was under the consideration of this court. And this being the case in the present instance, the plea in abatement is necessarily under the consideration; and it becomes, therefore, our duty to decide whether the facts stated in the plea are or are not sufficient to show that the plaintiff is not entitled to sue as a citizen in a court of the United States.
This is certainly a very serious question, and one that now for the first time has been brought for decision before this court. But it is brought here by those who have a right to bring it, and it is our duty to meet it and decide it.
The question is simply this: Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution.
It will be observed, that the plea applies to that class of persons only whose ancestors were negroes of the African race, and imported into this country, and sold and held as slaves. The only matter in issue before the court, therefore, is, whether the descendants of such slaves, when they shall be emancipated, or who are born of parents who had become free before their birth, are citizens of a State, in the sense in which the word citizen is used in the Constitution of the United States. And this being the only matter in dispute on the pleadings, the court must be understood as speaking in this opinion of that class only, that is, of those persons who are the descendants of Africans who were imported into this country, and sold as slaves.
…We proceed to examine the case as presented by the pleadings.
The words "people of the United States" and "citizens" are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government through their representatives. They are what we familiarly call the "sovereign people," and every citizen is one of this people, and a constituent member of this sovereignty. The question before us is, whether the class of persons described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word "citizens" in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.
It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or law-making power; to those who formed the sovereignty and framed the Constitution. The duty of the court is, to interpret the instrument they have framed, with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted.
In discussing this question, we must not confound the rights of citizenship which a State may confer within its own limits, and the rights of citizenship as a member of the Union. It does not by any means follow, because he has all the rights and privileges of a citizen of a State, that he must be a citizen of the United States. He may have all of the rights and privileges of the citizen of a State, and yet not be entitled to the rights and privileges of a citizen in any other State. For, previous to the adoption of the Constitution of the United States, every State had the undoubted right to confer on whomsoever it pleased the character of citizen, and to endow him with all its rights. But this character of course was confined to the boundaries of the State, and gave him no rights or privileges in other States beyond those secured to him by the laws of nations and the comity of States. Nor have the several States surrendered the power of conferring these rights and privileges by adopting the Constitution of the United States. Each State may still confer them upon an alien, or any one it thinks proper, or upon any class or description of persons; yet he would not be a citizen in the sense in which that word is used in the Constitution of the United States, nor entitled to sue as such in one of its courts, nor to the privileges and immunities of a citizen in the other States. The rights which he would acquire would be restricted to the State which gave them. The Constitution has conferred on Congress the right to establish an uniform rule of naturalization, and this right is evidently exclusive, and has always been held by this court to be so. Consequently, no State, since the adoption of the Constitution, can be naturalizing an alien invest him with the rights and privileges secured to a citizen of a State under the Federal Government, although, so far as the State alone was concerned, he would undoubtedly be entitled to the rights of a citizen, and clothed with all the rights and immunities which the Constitution and laws of the State attached to that character.
It is very clear, therefore, that no State can, by any act or law of its own, passed since the adoption of the Constitution, introduce a new member into the political community created by the Constitution of the United States. It cannot make him a member of this community by making him a member of its own. And for the same reason it cannot introduce any person, or description of persons, who were not intended to be embraced in this new political family, which the Constitution brought into existence, but were intended to be excluded from it.
The question then arises, whether the provisions of the Constitution, in relation to the personal rights and privileges to which the citizen of a State should be entitled, embraced the negro African race, at that time in this country, or who might afterwards be imported, who had then or should afterwards be made free in any State; and to put it in the power of a single State to make him a citizen of the United States, and endue him with the full rights of citizenship in every other State without their consent? Does the Constitution of the United States act upon him whenever he shall be made free under the laws of a State, and raised there to the rank of a citizen, and immediately cloth him with all the privileges of a citizen in every other State, and in its own courts?
The court think the affirmative of these propositions cannot be maintained. And if it cannot, the plaintiff in error could not be a citizen of the State of Missouri, within the meaning of the Constitution of the United States, and, consequently, was not entitled to sue in its courts.
…In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.
…They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.
And in no nation was this opinion more firmly fixed or more uniformly acted upon than by the English Government and English people.
…The opinion thus entertained and acted upon in England was naturally impressed upon the colonies they founded on this side of the Atlantic. And, accordingly, a negro of the African race was regarded by them as an article of property, and held, and bought and sold as such, in every one of the thirteen colonies which united in the Declaration of Independence, and afterwards formed the Constitution of the United States. The slaves were more or less numerous in the different colonies, as slave labor was found more or less profitable. But no one seems to have doubted the correctness of the prevailing opinion of the time.
The legislation of the different colonies furnishes positive and indisputable proof of this fact.
…A perpetual and impassable barrier was intended to be erected between the white race and the one which they had reduced to slavery, and governed as subjects with absolute and despotic power, and which they then looked upon as so far below them in the scale of created beings, that intermarriages between white persons and negroes or mulattoes were regarded as unnatural and immoral, and punished as crimes, not only in the parties, but in the person who joined them in marriage. And no distinction in this respect was made between the free negro or mulatto and the slave, but this stigma, of the deepest degradation, was fixed upon the whole race.
We refer to these historical facts for the purpose of showing the fixed opinions concerning that race, upon which the statesmen of that day spoke and acted. It is necessary to do this, in order to determine whether the general terms used in the Constitution of the United States, as to the rights of man and the rights of the people, was intended to include them, or to give to them or their posterity the benefit of any of its provisions.
The language of the Declaration of Independence is equally Conclusive:
It begins by declaring that, "when in the course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth the separate and equal station to which the laws of nature and nature's God entitle them, a decent respect for the opinions of mankind requires that they should declare the causes which impel them to the separation."
It then proceeds to say: "We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among them is life, liberty, and the pursuit of happiness; that to secure these rights, Governments are instituted, deriving their just powers from the consent of the governed."
The general words above quoted would seem to embrace the whole human family, and if they were used in a similar instrument at this day would be so understood. But it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration; for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted; and instead of the sympathy of mankind, to which they so confidently appeared, they would have deserved and received universal rebuke and reprobation.
…This state of public opinion had undergone no change when the Constitution was adopted, as is equally evident from its provisions and language.
…There are two clauses in the Constitution which point directly and specifically to the negro race as a separate class of persons, and show clearly that they were not regarded as a portion of the people or citizens of the Government then formed.
One of these clauses reserves to each of the thirteen States the right to import slaves until the year 1808, if it thinks proper. And the importation which it thus sanctions was unquestionably of persons of the race of which we are speaking, as the traffic in slaves in the United States had always been confined to them. And by the other provision the States pledge themselves to each other to maintain the right of property of the master, by delivering up to him any slave who may have escaped from his service, and be found within their respective territories. By the first above-mentioned clause, therefore, the right to purchase and hold this property is directly sanctioned and authorized for twenty years by the people who framed the Constitution. And by the second, they pledge themselves to maintain and uphold the right of the master in the manner specified, as long as the Government they then formed should endure. And these two provisions show, conclusively, that neither the description of persons therein referred to, not their descendants, were embraced in any of the other provisions of the Constitution; for certainly these two clauses were not intended to confer on them or their posterity the blessings of liberty, or any of the personal rights so carefully provided for the citizen.
…We need not refer, on this point, particularly to the laws of the present slaveholding States. Their statute books are full of provisions in relation to this class, in the same spirit with the Maryland law which we have before quoted. They have continued to treat them as an inferior class, and to subject them to strict police regulations, drawing a broad line of distinction between the citizen and the slave races, and legislating in relation to them upon the same principle which prevailed at the time of the Declaration of Independence. As related to these States, it is too plain for argument, that they have never been regarded as a part of the people or citizens of the State, nor supposed to possess any political rights which the dominant race might not withhold or grant at their pleasure. And as long ago as 1822, the Court of Appeals of Kentucky decided that free negroes and mulattoes were not citizens within the meaning of the Constitution of the United States; and the connectness of this decision is recognized, and the same doctrine affirmed, in 1 Meigs's Tenn. Reports, 331.
And if we turn to the legislation of the States where slavery had worn out, or measures taken for its speedy abolition, we shall find the same opinions and principles equally fixed and equally acted upon.
…The legislation of the States therefore shows, in a manner not to be mistaken, the inferior and subject condition of that race at the time the Constitution was adopted, and long afterwards, throughout the thirteen States by which that instrument was framed, and it is hardly consistent with the respect due to these States, to suppose that they regarded at that time, as fellow-citizens and members of the sovereignty, a class of beings whom they had thus stigmatized; whom, as we are bound, out of respect to the State sovereignties, to assume they had deemed it just and necessary thus to stigmatize, and upon whom they had impressed such deep and enduring marks of inferiority and degradation; or, that when they met in convention to form the Constitution, they looked upon them as a portion of their constituents, or designed to include them in the provisions so carefully inserted for the security and protection of the liberties and rights of their citizens. It cannot be supposed that they intended to secure to them rights, and privileges, and rank, in the new political body throughout the Union, which every one of them denied within the limits of its own dominion. More especially, it cannot be believed that the large slaveholding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.
It is impossible, it would seem, to believe that the great men of the slaveholding States, who took so large a share in framing the Constitution of the United States, and exercised so much influence in procuring its adoption, could have been so forgetful or regardless of their own safety and the safety of those who trusted and confided in them.
Besides, this want of foresight and care would have been utterly inconsistent with the caution displayed in providing for the admission of new members into this political family. For, when they gave to the citizens of each State the privileges and immunities of citizens in the several States, they at the same time took from the several States the power of naturalization, and confined that power exclusively to the Federal Government. No State was willing to permit another State to determine who should or should not be admitted as one of its citizens, and entitled to demand equal rights and privileges with their own people, within their own territories. The right of naturalization was therefore, with one accord, surrendered by the States, and confided to the Federal Government. And this power granted to Congress to establish an uniform rule of naturalization is, by the well-understood meaning of the word, confined to persons born in a foreign country, under a foreign Government. It is not a power to raise to the rank of a citizen any one born in the United States, who, from birth or parentage, by the laws of the country, belongs to an inferior and subordinate class. And when we find the States guarding themselves from the indiscreet or improper admission by other States of emigrants from other countries, by giving the power exclusively to Congress, we cannot fail to see that they could never have left with the States a much more important power—that is, the power of transforming into citizens a numerous class of persons, who in that character would be much more dangerous to the peace and safety of a large portion of the Union, than the few foreigners one of the States might improperly naturalize. The Constitution upon its adoption obviously took from the States all power by any subsequent legislation to introduce as a citizen into the political family of the United States any one, no matter where he was born, or what might be his character or condition; and it gave to Congress the power to confer this character upon those only who were born outside of the dominions of the United States. And no law of a State, therefore, passed since the Constitution was adopted, can give any right of citizenship outside of its own territory.
A clause similar to the one in the Constitution, in relation to the rights and immunities of citizens of one State in the other States, was contained in the Articles of Confederation. But there is a difference of language, which is worthy of note. The provision in the Articles of Confederation was,"that the free inhabitants of each of the States, paupers, vagabonds, and fugitives from justice, excepted, should be entitled to all the privileges and immunities of free citizens in the several States."
It will be observed, that under this Confederation, each State had the right to decide for itself, and in its own tribunals, whom it would acknowledge as a free inhabitant of another State. The term free inhabitant, in the generality of its terms, would certainly include one of the African race who had been manumitted. But no example, we think, can be found of his admission to all the privileges of citizenship in any State of the Union after these Articles were formed, and while they continued in force. And, notwithstanding the generality of the words "free inhabitants," it is very clear that, according to their accepted meaning in that day, they did not include the African race, whether free or not: for the fifth section of the ninth article provides that Congress should have the power "to agree upon the number of land forces to be raised, and to make requisitions from each State for its quota in proportion to the number of white inhabitants in such State, which requisition should be binding."
Words could hardly have been used which more strongly mark the line of distinction between the citizen and the subject; the free and the subjugated races. The latter were not even counted when the inhabitants of a State were to be embodied in proportion to its numbers for the general defence. And it cannot for moment be supposed, that a class of persons thus separated and rejected from those who formed the sovereignty of the States, were yet intended to be included under the words "free inhabitants," in the preceding article, to whom privileges and immunities were so carefully secured in every State.
But although this clause of the Articles of Confederation is the same in principle with that inserted in the Constitution, yet the comprehensive word inhabitant, which might be construed to include an emancipated slave, is omitted; and the privilege is confined to citizens of the State. And this alteration in words would hardly have been made, unless a different meaning was intended to be conveyed, or a possible doubt removed. The just and fair inference is, that as this privilege was about to be placed under the protection of the General Government, and the words expounded by its tribunals, and all power in relation to it taken from the State and its courts, it was deemed prudent to describe with precision and caution the persons to whom this high privilege was given—and the word citizen was on that account substituted for the words free inhabitant. The word citizen excluded, and no doubt intended to exclude, foreigners who had not become citizens of some one of the States when the Constitution was adopted; and also every description of persons who were not fully recognized as citizens in the several States. This, upon any fair construction of the instruments to which we have referred, was evidently the object and purpose of this change of words.
To all this mass of proof we have still to add, that Congress has repeatedly legislated upon the same construction of the Constitution that we have given. Three laws, two of which were passed almost immediately after the Government went into operation, will be abundantly sufficient to show this. The two first are particularly worthy of notice, because many of the men who assisted in framing the Constitution, and took an active part in procuring its adoption, were then in the halls of legislation, and certainly understood what they meant when they used the words "people of the United States" and "citizen" in that well-considered instrument.
The first of these acts is the naturalization law, which was passed at the second session of the first Congress, March 26, 1790, and confines the right of becoming citizens "to aliens being free white persons."
Now, the Constitution does not limit the power of Congress in this respect to white persons. And they may, if they think proper, authorize the naturalization of any one, of any color, who was born under allegiance to another Government. But the language of the law above quoted, shows that citizenship at that time was perfectly understood to be confined to the white race; and that they alone constituted the sovereignty in the Government.
…But it is said that a person may be a citizen, and entitled to that character, although he does not possess all the rights which may belong to other citizens; as, for example, the right to vote, or to hold particular offices; and that yet, when he goes into another State, he is entitled to be recognized there as a citizen, although the State may measure his rights by the rights which it allows to persons of a like character or class resident in the State, and refuse to him the full rights of citizenship.
This argument overlooks the language of the provision in the Constitution of which we are speaking.
Undoubtedly, a person may be a citizen, that is, a member of the community who form the sovereignty, although he exercises no share of the political power, and is incapacitated from holding particular offices. Women and minors, who form a part of the political family, cannot vote; and when a property qualification is required to vote or hold a particular office, those who have not the necessary qualification cannot vote or hold the office, yet they are citizens.
So, too, a person may be entitled to vote by the law of the State, who is not a citizen even of the State itself. And in some of the States of the Union foreigners not naturalized are allowed to vote. And the State may give the right to free negroes and mulattoes, but that does not make them citizens of the State, and still less of the United States. And the provision in the Constitution giving privileges and immunities in other States, does not apply to them.
Neither does it apply to a person who, being the citizen of a State, migrates to another State. For then he becomes subject to the laws of the State in which he lives, and he is no longer a citizen of the State from which he removed. And the State in which he resides may then, unquestionably, determine his status or condition, and place him among the class of persons who are not recognized as citizens, but belong to an inferior and subject race; and may deny him the privileges and immunities enjoyed by its citizens.
But so far as mere rights of person are concerned, the provision in question is confined to citizens of a State who are temporarily in another State without taking up their residence there. It gives them no political rights in the State, as to voting or holding office, or in any other respect. For a citizen of one State has no right to participate in the government of another. But if he ranks as a citizen in the State to which he belongs, within the meaning of the Constitution of the United States, then, whenever he goes into another State, the Constitution clothes him, as to the rights of person, with all the privileges and immunities which belong to citizens of the State. And if persons of the African race are citizens of a State, and of the United States, they would be entitled to all of these privileges and immunities in every State, and the State could not restrict them; for they would hold these privileges and immunities under the paramount authority of the Federal Government, and its courts would be bound to maintain and enforce them, the Constitution and laws of the State to the contrary notwithstanding. And if the States could limit or restrict them, or place the party in an inferior grade, this clause of the Constitution would be unmeaning, and could have no operation; and would give no rights to the citizen when in another State. He would have none but what the State itself chose to allow him. This is evidently not the construction or meaning of the clause in question. It guaranties rights to the citizen, and the State cannot withhold them. And these rights are of a character and would lead to consequences which make it absolutely certain that the African race were not included under the name of citizens of a State, and were not in the contemplation of the framers of the Constitution when these privileges and immunities were provided for the protection of the citizen in other States.
…The only two provisions which point to them and include them, treat them as property, and make it the duty of the Government to protect it; no other power, in relation to this race, is to be found in the Constitution; and as it is a Government of special, delegated, powers, no authority beyond these two provisions can be constitutionally exercised. The Government of the United States had no right to interfere for any other purpose but that of protecting the rights of the owner, leaving it altogether with the several States to deal with this race, whether emancipated or not, as each State may think justice, humanity, and the interests and safety of society, require. The States evidently intended to reserve this power exclusively to themselves.
No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted. Such an argument would be altogether inadmissible in any tribunal called on to interpret it. If any of its provisions are deemed unjust, there is a mode prescribed in the instrument itself by which it may be amended; but while it remains unaltered, it must be construed now as it was understood at the time of its adoption. It is not only the same in words, but the same in meaning, and delegates the same powers to the Government, and reserves and secures the same rights and privileges to the citizen; and as long as it continues to exist in its present form, it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers, and was voted on and adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day. This court was not created by the Constitution for such purposes. Higher and graver trusts have been confided to it, and it must not falter in the path of duty.
What the construction was at that time, we think can hardly admit of doubt. We have the language of the Declaration of Independence and of the Articles of confederation, in addition to the plain words of the Constitution itself; we have the legislation of the different States, before, about the time, and since, the Constitution was adopted; we have the legislation of Congress, from the time of its adoption to a recent period; and we have the constant and uniform action of the Executive Department, all concurring together, and leading to the same result. And if anything in relation to the construction of the Constitution can be regarded as settled, it is that which we now give to the word "citizen" and the word "people."
And upon a full and careful consideration of the subject, the court is of opinion, that, upon the facts stated in the plea in abatement, Dred Scott was not a citizen of Missouri within the meaning of the Constitution of the United States, and not entitled as such to sue in its courts; and, consequently, that the Circuit Court had no jurisdiction of the case, and that the judgment on the plea in abatement is erroneous.
PRIMARY SOURCE DOCUMENT
The Thirteenth Amendment
An amendment to the Constitution was required to free those people still in bondage and to ensure that slavery would never again be made legal anywhere in the United States. The Thirteenth Amendment to the Constitution, adopted in 1865 following the Union victory over the Confederate army, did just that.
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate legislation.
PRIMARY SOURCE DOCUMENT
The Fourteenth Amendment
The Fourteenth Amendment has been one of the most frequently debated items in the Constitution. In 1896, in the case ofPlessy v. Ferguson, the Supreme Court, arguing that the Fourteenth Amendment did not guarantee African Americans equal access to public services, established the doctrine of "separate but equal. "In 1954, the Court, under Chief Justice Earl Warren, overturned this doctrine and ordered that American public schools be desegregated with "all deliberate speed. "The basis of the Court's decision in 1954 was the Fourteenth Amendment, whose equal protection clause, it argued, was violated by segregation in public schooling.
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of Electors for President and Vice-President of the United States, Representatives in Congress, the executive and judicial officers of a State, or the members of the legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Section 3. No person shall be a Senator or Representative in Congress, or Elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. Congress may, by a vote of two-thirds of each house, remove such disability.
Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss of emancipation of any slave; but all such debts, obligations, and claims shall be held illegal and void.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
PRIMARY SOURCE DOCUMENT
The Ruling in Plessy v. Ferguson and Justice John Marshall Harlan's Dissent
In 1896, the U.S. Supreme Court ruled on a case involving the constitutionality of a Louisiana law that provided for segregation on passenger railway cars. The Court maintained that segregration was enforceable because such a situation allowed for "separate but equal" treatment of the races.
The lone dissenter in Plessy v. Ferguson was Justice John Marshall Harlan, a former Kentucky slaveholder who understood that the purpose of the 1890 Louisiana law was not only to separate, but to degrade. Looking ahead to what the future might hold with such laws in place, he wrote that the "present decision … will not only stimulate aggressions, more or less brutal and irritating, upon the admitted rights of colored citizens, but will encourage the belief that it is possible, by means of state enactments, to defeat the beneficent purposes which the people of the United States had in view when they adopted the recent amendments of the Constitution.… The destinies of the two races, in this country, are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law."
Justice Harlan has earned high praise for both the high-mindedness and the accuracy of his prediction. Plessy v. Ferguson did indeed plant "the seeds of race hate … under the sanction of law. "In its wake, the number of incidents of racial violence soared throughout the country, and a system of discriminatory racial segregation developed from which the nation has yet to recover.
On many occasions during the years following the Civil War, the nation had a chance to reassess its racial practices and move ahead. Though there were a few legal victories, there were more failures, and those failures were summed up in the ruling and dissenting opinions ofPlessy v. Ferguson, excerpts of which are provided below.
Opinion: Mr. Justice Brown, after stating the case, delivered the opinion of the court.
This case turns upon the constitutionality of an act of the General Assembly of the State of Louisiana, passed in 1890, providing for separate railway carriages for the white and colored races. Acts 1890, No. 111, p. 152.
The first section of the statute enacts "that all railway companies carrying passengers in their coaches in this State, shall provide equal but separate accommodations for the white, and colored races, by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations: Provided, That this section shall not be construed to apply to street railroads.No person or persons, shall be admitted to occupy seats in coaches, other than, the ones, assigned, to them on account of the race they belong to."
By the second section it was enacted "that the officers of such passenger trains shall have power and are hereby required to assign each passenger to the coach or compartment used for the race to which such passenger belongs; any passenger insisting on going into a coach or compartment to which by race he does not belong, shall be liable to a fine of twenty-five dollars, or in lieu thereof to imprisonment for a period of not more than twenty days in the parish prison, and any officer of any railroad insisting on assigning a passenger to a coach or compartment other than the one set aside for the race to which said passenger belongs, shall be liable to a fine of twenty-five dollars, or in lieu thereof to imprisonment for a period of not more than twenty days in the parish prison; and should any passenger refuse to occupy the coach or compartment to which he or she is assigned by the officer of such railway, said officer shall have power to refuse to carry such passenger on his train, and for such refusal neither he nor the railway company which he represents shall be liable for damages in any of the courts of this State."
The third section provides penalties for the refusal or neglect of the officers, directors, conductors and employes of railway companies to comply with the act, with a proviso that "nothing in this act shall be construed as applying to nurses attending children of the other race. "The fourth section is immaterial.
The information filed in the criminal District Court charged in substance that Plessy, being a passenger between two stations within the State of Louisiana, was assigned by officers of the company to the coach used for the race to which he belonged, but he insisted upon going into a coach used by the race to which he did not belong. Neither in the information nor plea was his particular race or color averred.
The petition for the writ of prohibition averred that petitioner was seven eighths Caucasian and one eighth African blood; that the mixture of colored blood was not discernible in him, and that he was entitled to every right, privilege and immunity secured to citizens of the United States of the white race; and that, upon such theory, he took possession of a vacant seat in a coach where passengers of the white race were accommodated, and was ordered by the conductor to vacate said coach and take a seat in another assigned to persons of the colored race, and having refused to comply with such demand he was forcibly ejected with the aid of a police officer, and imprisoned in the parish jail to answer a charge of having violated the above act.
The constitutionality of this act is attacked upon the ground that it conflicts both with the Thirteenth Amendment of the Constitution, abolishing slavery, and the Fourteenth Amendment, which prohibits certain restrictive legislation on the part of the States.
1. That it does not conflict with the Thirteenth Amendment, which abolished slavery and involuntary servitude, except as a punishment for crime, is too clear for argument. Slavery implies involuntary servitude—a state of bondage; the ownership of mankind as a chattel, or at least the control of the labor and services of one man for the benefit of another, and the absence of a legal right to the disposal of his own person, property and services.… This amendment was regarded by the statesmen of that day as insufficient to protect the colored race from certain laws which had been enacted in the Southern States, imposing upon the colored race onerous disabilities and burdens, and curtailing their rights in the pursuit of life, liberty and property to such an extent that their freedom was of little value; and that the Fourteenth Amendment was devised to meet this exigency.
So too, in the Civil Rights cases, 109 U.S. 3, 24, it was said that the act of a mere individual, the owner of an inn, a public conveyance or place of amusement, refusing accommodations to colored people, cannot be justly regarded as imposing any badge of slavery or servitude upon the applicant, but only as involving an ordinary civil injury, properly cognizable by the laws of the State, and presumably subject to redress by those laws until the contrary appears.
…A statute which implies merely a legal distinction between the white and colored races—a distinction which is founded in the color of the two races, and which must always exist so long as white men are distinguished from the other race by color—has no tendency to destroy the legal equality of the two races, or reestablish a state of involuntary servitude. Indeed, we do not understand that the Thirteenth Amendment is strenuously relied upon by the plaintiff in error in this connection.
2. By the Fourteenth Amendment, all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are made citizens of the United States and of the State wherein they reside; and the States are forbidden from making or enforcing any law which shall abridge the privileges or immunities of citizens of the United States, or shall deprive any person of life, liberty or property without due process of law, or deny to any person within their jurisdiction the equal protection of the laws.
…It was said generally that its main purpose was to establish the citizenship of the negro; to give definitions of citizenship of the United States and of the States, and to protect from the hostile legislation of the States the privileges and immunities of citizens of the United States, as distinguished from those of citizens of the States.
The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for white and colored children, which has been held to be a valid exercise of the legislative power even by courts of States where the political rights of the colored race have been longest and most earnestly enforced.
One of the earliest of these cases is that of Roberts v. City of Boston, 5 Cush. 198, in which the Supreme Judicial Court of Massachusetts held that the general school committee of Boston had power to make provision for the instruction of colored children in separate schools established exclusively for them, and to prohibit their attendance upon the other schools.… It was held that the powers of the committee extended to the establishment of separate schools for children of different ages, sexes and colors, and that they might also establish special schools for poor and neglected children, who have become too old to attend the primary school, and yet have not acquired the rudiments of learning, to enable them to enter the ordinary schools.
…The distinction between laws interfering with the political equality of the negro and those requiring the separation of the two races in schools, theatres and railway carriages has been frequently drawn by this court. Thus in Strauder v. West Virginia, 100 U.S. 303, it was held that a law of West Virginia limiting to white male persons, 21 years of age and citizens of the State, the right to sit upon juries, was a discrimination which implied a legal inferiority in civil society, which lessened the security of the right of the colored race, and was a step toward reducing them to a condition of servility. Indeed, the right of a colored man that, in the selection of jurors to pass upon his life, liberty and property, there shall be no exclusion of his race, and no discrimination against them because of color, has been asserted in a number of cases.… So, where the laws of a particular locality or the charter of a particular railway corporation has provided that no person shall be excluded from the cars on account of color, we have held that this meant that persons of color should travel in the same car as white ones, and that the enactment was not satisfied by the company's providing cars assigned exclusively to people of color, though they were as good as those which they assigned exclusively to white persons. Railroad Company v. Brown, 17 Wall. 445.
Upon the other hand, where a statute of Louisiana required those engaged in the transportation of passengers among the States to give to all persons travelling within that State, upon vessels employed in that business, equal rights and privileges in all parts of the vessel, without distinction on account of race or color, and subjected to an action for damages the owner of such a vessel, who excluded colored passengers on account of their color from the cabin set aside by him for the use of whites, it was held to be so far as it applied to interstate commerce, unconstitutional and void. Hall v. De Cuir, 95 U.S. 485. The court in this case, however, expressly disclaimed that it had anything whatever to do with the statute as a regulation of internal commerce, or affecting anything else than commerce among the States.
In the Civil Rights case, 109 U.S. 3, it was held that an act of Congress, entitling all persons within the jurisdiction of the United States to the full and equal enjoyment of the accommodations, advantages, facilities and privileges of inns, public conveyances, on land or water, theatres and other places of public amusement, and made applicable to citizens of every race and color, regardless of any previous condition of servitude, was unconstitutional and void, upon the ground that the Fourteenth Amendment was prohibitory upon the States only, and the legislation authorized to be adopted by Congress for enforcing it was not direct legislation on matters respecting which the States were prohibited from making or enforcing certain laws, or doing certain acts, but was corrective legislation, such as might be necessary or proper for counteracting and redressing the effect of such laws or acts. In delivering the opinion of the court Mr. Justice Bradley observed that the Fourteenth Amendment "does not invest Congress with power to legislate upon subjects that are within the domain of state legislation; but to provide modes of relief against state legislation, or state action, of the kind referred to. It does not authorize Congress to create a code of municipal law for the regulation of private rights; but to provide modes of redress against the operation of state laws, and the action of state officers, executive or judicial, when these are subversive of the fundamental rights specified in the amendment. Positive rights and privileges are undoubtedly secured by the Fourteenth Amendment; but they are secured by way of prohibition against state laws and state proceedings affecting those rights and privileges, and by power given to Congress to legislate for the purpose of carrying such prohibition into effect; and such legislation must necessarily be predicated upon such supposed state laws or state proceedings, and be directed to the correction of their operation and effect."
Much nearer, and, indeed, almost directly in point, is the case of the Louisville, New Orleans &c. Railway v. Mississippi, 133 U.S. 587, wherein the railway company was indicted for a violation of a statute of Mississippi, enacting that all railroads carrying passengers should provide equal, but separate, accommodations for the white and colored races, by providing two or more passenger cars for each passenger train, or by dividing the passenger cars by a partition, so as. to secure separate accommodations. The case was presented in a different aspect from the one under consideration, inasmuch as it was an indictment against the railway company for failing to provide the separate accommodations, but the question considered was the constitutionality of the law. In that case, the Supreme Court of Mississippi, 66 Mississippi, 662, had held that the statute applied solely to commerce within the State, and, that being the construction of the state statute by its highest court, was accepted as conclusive."If it be a matter,"said the court, p. 591, "respecting commerce wholly within a State, and not interfering with commerce. between the States, then, obviously, there is no violation of the commerce clause of the Federal Constitution.… No question arises under this section, as to the power of the State to separate in different compartments interstate passengers, or affect, in any manner, the privileges and rights of such passengers. All that we can consider is, whether the State has the power to require that railroad trains within her limits shall have separate accommodations for the two races; that affecting only commerce within the State is no invasion of the power given to Congress by the commerce clause."
A like course of reasoning applies to the case under consideration, since the Supreme Court of Louisiana in the case of the State ex rel. Abbott v. Hicks, Judge, et al., 44 La. Ann. 770, held that the statute in question did not apply to interstate passengers, but was confined in its application to passengers travelling exclusively within the borders of the State. The case was decided largely upon the authority of Railway Co. v. State, 66 Mississippi, 662, and affirmed by this court in 133 U.S. 587. In the present case no question of interference with interstate commerce can possibly arise, since the East Louisiana Railway appears to have been purely a local line, with both its termini within the State of Louisiana.…
While we think the enforced separation of the races, as applied to the internal commerce of the State, neither abridges the privileges or immunities of the colored man, deprives him of his property without due process of law, nor denies him the equal protection of the laws, within the meaning of the Fourteenth Amendment, we are not prepared to say that the conductor, in assigning passengers to the coaches according to their race, does not act at his peril, or that the provision of the second section of the act, that denies to the passenger compensation in damages for a refusal to receive him into the coach in which he properly belongs, is a valid exercise of the legislative power.
…It is claimed by the plaintiff in error that, in any mixed community, the reputation of belonging to the dominant race, in this instance the white race, is property, in the same sense that a right of action, or of inheritance, is property. Conceding this to be so, for the purposes of this case, we are unable to see how this statute deprives him of, or in any way affects his right to, such property. If he be a white man and assigned to a colored coach, he may have his action for damages against the company for being deprived of his so called property. Upon the other hand, if he be a colored man and be so assigned, he has been deprived of no property, since he is not lawfully entitled to the reputation of being a white man.
In this connection, it is also suggested by the learned counsel for the plaintiff in error that the same argument that will justify the state legislature in requiring railways to provide separate accommodations for the two races will also authorize them to require separate cars to be provided for people whose hair is of a certain color, or who are aliens, or who belong to certain nationalities, or to enact laws requiring colored people to walk upon one side of the street, and white people upon the other, or requiring white men's houses to be painted white, and colored men's black, or their vehicles or business signs to be of different colors, upon the theory that one side of the street is as good as the other, or that a house or vehicle of one color is as good as one of another color. The reply to all this is that every exercise of the police power must be reasonable, and extend only to such laws as are enacted in good faith for the promotion for the public good, and not for the annoyance or oppression of a particular class.
…So far, then, as a conflict with the Fourteenth Amendment is concerned, the case reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and with respect to this there must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness it is at liberty to act with reference to the established usages, customs and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order. Gauged by this standard, we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable, or more obnoxious to the Fourteenth Amendment than the acts of Congress requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned, or the corresponding acts of state legislatures.
We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. The argument necessarily assumes that if, as has been more than once the case, and is not unlikely to be so again, the colored race should become the dominant power in the state legislature, and should enact a law in precisely similar terms, it would thereby relegate the white race to an inferior position. We imagine that the white race, at least, would not acquiesce in this assumption. The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other's merits and a voluntary consent of individuals.… Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.
It is true that the question of the proportion of colored blood necessary to constitute a colored person, as distinguished from a white person, is one upon which there is a difference of opinion in the different States, some holding that any visible admixture of black blood stamps the person as belonging to the colored race, (State v. Chavers, 5 Jones, [N.C.] 1, p. 11); others that it depends upon the preponderance of blood, (Gray v. State, 4 Ohio, 354; Monroe v. Collins, 17 Ohio St. 665); and still others that the predominance of white blood must only be in the proportion of three fourths. (People v. Dean, 14 Michigan, 406; Jones v. Commonwealth, 80 Virginia, 538.) But these are question to be determined under the laws of each State and are not properly put in issue in this case. Under the allegations of his petition it may undoubtedly become a question of importance whether, under the laws of Louisiana, the petitioner belongs to the white or colored race.
The judgment of the court below is, therefore, Affirmed.
Dissent by: Harlan
Dissent: Mr. Justice Harlan dissenting.
By the Louisiana statute, the validity of which is here involved, all railway companies (other than street railroad companies) carrying passengers in that State are required to have separate but equal accommodations for white and colored persons, "by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations. "Under this statute, no colored person is permitted to occupy a seat in a coach assigned to white persons; nor any white person, to occupy a seat in a coach assigned to colored persons. The managers of the railroad are not allowed to exercise any discretion in the premises, but are required to assign each passenger to some coach or compartment set apart for the exclusive use of his race. If a passenger insists upon going into a coach or compartment not set apart for persons of his race, he is subject to be fined, or to be imprisoned in the parish jail. Penalties are prescribed for the refusal or neglect of the officers, directors, conductors and employes of railroad companies to comply with the provisions of the act.
Only "nurses attending children of the other race" are excepted from the operation of the statute. No exception is made of colored attendants travelling with adults. A white man is not permitted to have his colored servant with him in the same coach, even if his condition of health requires the constant, personal assistance of such servant. If a colored maid insists upon riding in the same coach with a white woman whom she has been employed to serve, and who may need her personal attention while travelling, she is subject to be fined or imprisoned for such an exhibition of zeal in the discharge of duty.
While there may be in Louisiana persons of different races who are not citizens of the United States, the words in the act,"white and colored races," necessarily include all citizens of the United States of both races residing in that State. So that we have before us a state enactment that compels, under penalties, the separation of the two races in railroad passenger coaches, and makes it a crime for a citizen of either race to enter a coach that has been assigned to citizens of the other race.
Thus the State regulates the use of a public highway by citizens of the United States solely upon the basis of race.
However apparent the injustice of such legislation may be, we have only to consider whether it is consistent with the Constitution of the United States.
That a railroad is a public highway, and that the corporation which owns or operates it is in the exercise of public functions, is not, at this day, to be disputed. Mr. Justice Nelson, speaking for this court in New Jersey Steam Navigation Co. v. Merchants' Bank, 6 How. 344, 382, said that a common carrier was in the exercise "of a sort of public office, and has public duties to perform, from which he should not be permitted to exonerate himself without the assent of the parties concerned. "Mr. Justice Strong, delivering the judgment of this court in Olcott v. The Supervisors, 16 Wall. 678, 694, said: "That railroads, though constructed by private corporations and owned by them, are public highways, has been the doctrine of nearly all the courts ever since such conveniences for passage and transportation have had any existence.…"
In respect of civil rights, common to all citizens, the Constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights. Every true man has pride of race, and under appropriate circumstances when the rights of others, his equals before the law, are not to be affected, it is his privilege to express such pride and to take such action based upon it as to him seems proper. But I deny that any legislative body or judicial tribunal may have regard to the race of citizens when the civil rights of those citizens are involved. Indeed, such legislation, as that here in question, is inconsistent not only with that equality of rights which pertains to citizenship, National and State, but with the personal liberty enjoyed by every one within the United States.
The Thirteenth Amendment does not permit the withholding or the deprivation of any right necessarily inhering in freedom. It not only struck down the institution of slavery as previously existing in the United States, but it prevents the imposition of any burdens or disabilities that constitute badges of slavery or servitude. It decreed universal civil freedom in this country. This court has so adjudged. But that amendment having been found inadequate to the protection of the rights of those who had been in slavery, it was followed by the Fourteenth Amendment, which added greatly to the dignity and glory of American citizenship, and to the security of personal liberty, by declaring that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside," and that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. "These two amendments, if enforced according to their true intent and meaning, will protect all the civil rights that pertain to freedom and citizenship. Finally, and to the end that no citizen should be denied, on account of his race, the privilege of participating in the political control of his country, it was declared by the Fifteenth Amendment that "the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color or previous condition of servitude."
These notable additions to the fundamental law were welcomed by the friends of liberty throughout the world. They removed the race line from our governmental systems. They had, as this court has said, a common purpose, namely, to secure "to a race recently emancipated, a race that through many generations have been held in slavery, all the civil rights that the superior race enjoy. "They declared, in legal effect, this court has further said, "that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color. "We also said: "The words of the amendment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity, or right, most valuable to the colored race—the right to exemption from unfriendly legislation against them distinctively as colored—exemption from legal discriminations, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps towards reducing them to the condition of a subject race. "It was, consequently, adjudged that a state law that excluded citizens of the colored race from juries, because of their race and however well qualified in other respects to discharge the duties of jurymen, was repugnant to the Fourteenth Amendment.… At the present term, referring to the previous adjudications, this court declared that "underlying all of those decisions is the principle that the Constitution of the United States, in its present form, forbids, so far as civil and political rights are concerned, discrimination by the General Government or the States against any citizen because of his race. All citizens are equal before the law. "Gibson v. Mississippi, 162 U.S. 565.
The decisions referred to show the scope of the recent amendments of the Constitution. They also show that it is not within the power of a State to prohibit colored citizens, because of their race, from participating as jurors in the administration of justice.
It was said in argument that the statute of Louisiana does not discriminate against either race, but prescribes a rule applicable alike to white and colored citizens. But this argument does not meet the difficulty. Every one knows that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons. Railroad corporations of Louisiana did not make discrimination among whites in the matter of accommodation for travelers. The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while travelling in railroad passenger coaches. No one would be so wanting in candor as to assert the contrary. The fundamental objection, therefore, to the statute is that it interferes with the personal freedom of citizens."Personal liberty," it has been well said,"consists in the power of locomotion, of changing situation, or removing one's person to whatsoever places one's own inclination may direct, without imprisonment or restraint, unless by due course of law. "1 Bl. Com. *134. If a white man and a black man choose to occupy the same public conveyance on a public highway, it is their right to do so, and no government, proceeding alone on grounds of race, can prevent it without infringing the personal liberty of each.
It is one thing for railroad carriers to furnish, or to be required by law to furnish, equal accommodations for all whom they are under a legal duty to carry. It is quite another thing for government to forbid citizens of the white and black races from travelling in the same public conveyance, and to punish officers of railroad companies for permitting parsons of the two races to occupy the same passenger coach. If a State can prescribe, as a rule of civil conduct, that whites and blacks shall not travel as passengers in the same railroad coach, why may it not so regulate the use of the streets of its cities and towns as to compel white citizens to keep on one side of a street and black citizens to keep on the other? Why may it not, upon like grounds, punish whites and blacks who ride together in street cars or in open vehicles on a public road of street? Why may it not require sheriffs to assign whites to one side of a court-room and blacks to the other? And why may it not also prohibit the commingling of the two races in the galleries of legislative halls or in public assemblages convened for the considerations of the political questions of the day? Further, if this statute of Louisiana is consistent with the personal liberty of citizens, why may not the State require the separation in railroad coaches of native and naturalized citizens of the United States, or of Protestants and Roman Catholics?
The answer given at the argument to these questions was that regulations of the kind they suggest would be unreasonable, and could not, therefore, stand before the law. Is it meant that the determination of questions of legislative power depends upon the inquiry whether the statute whose validity is questioned is, in the judgment of the courts, a reasonable one, taking all the circumstances into consideration? A statute may be unreasonable merely because a sound public policy forbade its enactment. But I do not understand that the courts have anything to do with the policy or expediency of legislation. A statute may be valid, and yet, upon grounds of public policy, may well be characterized as unreasonable. Mr. Sedgwick correctly states the rule when he says that the legislative intention being clearly ascertained, "the courts have no other duty to perform than to execute the legislative will, without any regard to their views as to the wisdom or justice of the particular enactment. "Stat. & Const. Constr. 324. There is a dangerous tendency in these latter days to enlarge the functions of the courts, by means of judicial interference with the will of the people as expressed by the legislature. Our institutions have the distinguishing characteristic that the three departments of government are coordinate and separate. Each must keep within the limits defined by the Constitution. And the courts best discharge their duty by executing the will of the law-making power, constitutionally expressed, leaving the results of legislation to be dealt with by the people through their representatives. Statutes must always have a reasonable construction. Sometimes they are to be construed strictly; sometimes, liberally, in order to carry out the legislative will. But however construed, the intent of the legislature is to be respected, if the particular statute in question is valid, although the courts, looking at the public interests, may conceive the statute to be both unreasonable and impolitic. If the power exists to enact a statute, that ends the matter so far as the courts are concerned. The adjudged cases in which statutes have been held to be void, because unreasonable, are those in which the means employed by the legislature were not at all germane to the end to which the legislature was competent.
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. But 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. It is, therefore, to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a State to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.
In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case. It was adjudged in that case that the descendants of Africans who were imported into this country and sold as slaves were not included nor intended to be included under the word "citizens" in the Constitution, and could not claim any of the rights and privileges which that instrument provided for and secured to citizens of the United States; that at the time of the adoption of the Constitution they were "considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the government might choose to grant them. "19 How. 393, 404. The recent amendments of the Constitution, it was supposed, had eradicated these principles from our institutions. But it seems that we have yet, in some of the States, a dominant race—a superior class of citizens, which assumes to regulate the enjoyment of civil rights, common to all citizens, upon the basis of race. The present decision, it may well be apprehended, will not only stimulate aggressions, more or less brutal and irritating, upon the admitted rights of colored citizens, but will encourage the belief that it is possible, by means of state enactments, to defeat the beneficent purposes which the people of the United States had in view when they adopted the recent amendments of the Constitution, by one of which the blacks of this country were made citizens of the United States and of the States in which they respectively reside, and whose privileges and immunities, as citizens, the States are forbidden to abridge. Sixty millions of whites are in no danger from the presence here of eight millions of blacks. The destinies of the two races, in this country, are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law. What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races, than state enactments, which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens? That, as all will admit, is the real meaning of such legislation as was enacted in Louisiana.
The sure guarantee of the peace and security of each race is the clear, distinct, unconditional recognition by our governments, National and State, of every right that inheres in civil freedom, and of the equality before the law of all citizens of the United States without regard to race. State enactments, regulating the enjoyment of civil rights, upon the basis of race, and cunningly devised to defeat legitimate results of the war, under the pretence of recognizing equality of rights, can have no other result than to render permanent peace impossible, and to keep alive a conflict of races, the continuance of which must do harm to all concerned. This question is not met by the suggestion that social equality cannot exist between the white and black races in this country. That argument, if it can be properly regarded as one, is scarcely worthy of consideration; for social equality no more exists between two races when travelling in a passenger coach or a public highway than when members of the same races sit by each other in a street car or in the jury box, or stand or sit with each other in a political assembly, or when they use in common the streets of a city or town, or when they are in the same room for the purpose of having their names placed on the registry of voters, or when they approach the ballot-box in order to exercise the high privilege of voting.
There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race. But by the statute in question, a Chinaman can ride in the same passenger coach with white citizens of the United States, while citizens of the black race in Louisiana, many of whom, perhaps, risked their lives for the preservation of the Union, who are entitled, by law, to participate in the political control of the State and nation, who are not excluded, by law or by reason of their race, from public stations of any kind, and who have all the legal rights that belong to white citizens, are yet declared to be criminals, liable to imprisonment, if they ride in a public coach occupied by citizens of the white race. It is scarcely just to say that a colored citizen should not object to occupying a public coach assigned to his own race. He does not object, nor, perhaps, would he object to separate coaches for his race, if his rights under the law were recognized. But he objects, and ought never to cease objecting to the proposition, that citizens of the white and black races can be adjudged criminals because they sit, or claim the right to sit, in the same public coach on a public highway.
The arbitrary separation of citizens, on the basis of race, while they are on a public highway, is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution. It cannot be justified upon any legal grounds.
If evils will result from the commingling of the two races upon public highways established for the benefit of all, they will be infinitely less than those that will surely come from state legislation regulating the enjoyment of civil rights upon the basis of race. We boast of the freedom enjoyed by our people above all other peoples. But it is difficult to reconcile that boast with a state of the law which, practically, puts the brand of servitude and degradation upon a large class of our fellow-citizens, our equals before the law. The thin disguise of "equal" accommodations for passengers in railroad coaches will not mislead any one, nor atone for the wrong this day done.
The result of the whole matter is, that while this court has frequently adjudged, and at the present term has recognized the doctrine, that a State cannot, consistently with the Constitution of the United States, prevent white and black citizens, having the required qualifications for jury service, from sitting in the same jury box, it is now solemnly held that a State may prohibit white and black citizens from sitting in the same passenger coach on a public highway, or may require that they be separated by a "partition,"when in the same passenger coach. May it not now be reasonably expected that astute men of the dominant race, who affect to be disturbed at the possibility that the integrity of the white race may be corrupted, or that its supremacy will be imperilled, by contact on public highways with black people, will endeavor to procure statutes requiring white and black jurors to be separated in the jury box by a "partition," and that, upon retiring from the court room to consult as to their verdict, such partition, if it be a moveable one, shall be taken to their consultation room, and set up in such way as to prevent black jurors from coming too close to their brother jurors of the white race. If the "partition" used in the court room happens to be stationary, provision could be made for screens with openings through which jurors of the two races could confer as to their verdict without coming into personal contact with each other. I cannot see but that, according to the principles this day announced, such state legislation, although conceived in hostility to, and enacted for the purpose of humiliating citizens of the United States of a particular race, would be held to be consistent with the Constitution.
I do not deem it necessary to review the decisions of state courts to which reference was made in argument. Some, and the most important, of them are wholly inapplicable, because rendered prior to the adoption of the last amendments of the Constitution, when colored people had very few rights which the dominant race felt obliged to respect. Others were made at a time when public opinion, in many localities, was dominated by the institution of slavery; when it would not have been safe to do justice to the black man; and when, so far as the rights of blacks were concerned, race prejudice was, practically, the supreme law of the land. Those decisions cannot be guides in the era introduced by the recent amendments of the supreme law, which established universal civil freedom, gave citizenship to all born or naturalized in the United States and residing her, obliterated the race line from our systems of governments, National and State, and placed our free institutions upon the broad and sure foundation of the equality of all men before the law.
I am of opinion that the statute of Louisiana is inconsistent with the personal liberty of citizens, white and black, in that State, and hostile to both the spirit and letter of the Constitution of the United States. If laws of like character should be enacted in the several States of the Union, the effect would be in the highest degree mischievous. Slavery, as an institution tolerated by law would, it is true, have disappeared from our country, but there would remain a power in the States, by sinister legislation, to interfere with the full enjoyment of the blessings of freedom; to regulate civil rights, common to all citizens, upon the basis of race; and to place in a condition of legal inferiority a large body of American citizens, now constituting a part of the political community called the People of the United States, for whom, and by whom through representatives, our government is administered. Such a system is inconsistent with the guarantee given by the Constitution to each State of a republican form of government, and may be stricken down by Congressional action, or by the courts in the discharge of their solemn duty to maintain the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding.
For the reasons stated, I am constrained to withhold my assent from the opinion and judgment of the majority.
Mr. Justice Brewer did not hear the argument or participate in the decision of this case.
From Armed Uprising to Courtroom Uprising
Throughout the history of slavery many bloody revolts occurred. To avoid such uprisings, masters would try various techniques of physical torture and psychological manipulation to control populations larger than their own, such as a slave population that was determined to gain its freedom. This dynamic between masters and slaves has become etched in the historical memory of the United States.
Many elements of the slaveowner-slave relationship continued to surface during the paranoid and brutal enforcement of the black codes in the years following the Civil War. Although the Civil Rights movement has since changed the dynamic between the races in the United States, it is not difficult to see that earlier paradigm repeated in subtle ways through the years. The history of African Americans, enmeshed with the institutions of slavery and economic disenfranchisement, has produced many who would rebel against those conditions. As the nation has slowly moved toward integration, African American rebellions have morphed from armed uprisings to courtroom challenges and even to politically and socially charged expressions of black culture in the fields of arts and entertainment.
The Dred Scott Case
During the final decades of slavery, the case of Dred Scott garnered national attention and provided a glimpse of the way many battles regarding the rights of African Americans would be handled in the years following manumission. Rather than stage his uprising in the dead of night, Scott turned to the courts in order to confirm his right to freedom as written in the laws of the time. Scott, a native of Virginia, was brought to St. Louis in 1830 when his owners Peter and Elizabeth Blow migrated west with their children and slaves. Following their early deaths, he became the property of an army doctor named John Emerson, with whom he traveled throughout the trans-Mississippi territories in the years that followed.
In 1836, Emerson was assigned to Fort Snelling, near the present-day city of St. Paul, Minnesota, and Scott accompanied him. There Scott met and married his wife, Harriet. According to the Missouri Compromise of 1820, Fort Snelling was in free territory and the state law of Missouri provided that any slave who had been taken into free territory was thereby emancipated.
Armed with these facts, the Scotts filed suit for their own and their two daughters' freedom. In the following years the Scott v. Emerson cases bounced back and forth between the Missouri Circuit Court and the Missouri Supreme Court, with rulings both for and against Dred and Harriet Scott. But in 1852, with the debate over slavery in the territories heating up, the Missouri Supreme Court gave a final ruling deciding in favor of the slaveholders and denying the Scott family freedom. Here, the matter might have ended, and in some ways it is something of a mystery that it continued at all. The Scott v. Emerson rulings were never appealed to the United States Supreme Court, which would have been the legal next step. Instead, Scott filed a new suit against John Sanford (whose name was misspelled in the Court record due to a clerical error), Mrs. Emerson's brother and a New York state resident who represented himself as the Scott family's new owner. It was this case, much broader in its implications, that reached the high court four years later as Dred Scott v. Sandford.
Some legal historians have suggested that abolitionists had a hand in keeping the suit alive. Others have suggested that pro-slavery forces redefined it to produce a new ruling on the constitutionality of the Missouri Compromise and, hence, slavery in the territories. Regardless, the Supreme Court had to decide two questions in Dred Scott v. Sandford which the earlier cases had never raised: Was Dred Scott a citizen of Missouri, and thus entitled to bring suit in federal court against a citizen of another state? And did the Scott family become free at Fort Snelling as a result of the 1820 Missouri Compromise, which placed it in free territory?
In perhaps the most infamous ruling in the history of the Supreme Court, six of the eight justices answered no to both questions. Chief Justice Roger Taney wrote the majority opinion, and he wrote it in broad strokes: Not only was Scott not a citizen, he said, no Negro was according to the Constitution. Not only were the Scotts not emancipated by their residence at Fort Snelling, the court ruled that the Missouri Compromise, in excluding slavery north of the 36 degree 30 minutes line, was itself unconstitutional. The decision was a short-lived victory for pro-slavery forces. Less than five years later, the Civil War would erupt, bringing with it amendments to the Constitution abolishing slavery and establishing beyond doubt the rights of citizenship for African Americans.
The Reconstruction Amendments
The Constitution adopted in 1787 had rigorously avoided mentioning slavery, though it had acknowledged the fact of slavery in the "three-fifths" clause of Article 1, Section 2, and in its postponement of the abolition of the slave trade until 1808. Lincoln's Emancipation Proclamation had liberated the slaves residing in only those states still in rebellion on January 1, 1863, thus leaving in bondage thousands of people in Maryland, Delaware, Kentucky, Missouri, and various counties and parishes of Virginia and New Orleans.
Despite the passage of the Thirteenth Amendment, Southern states quickly set about trying to reduce freed men and women once again to a condition of slavery, passing black codes that stringently controlled their labor. Such codes stipulated that freed people could rent land only in rural districts, required them to sign year-long work contracts, denied them any pay for their labor if they quit in the middle of a contract, and made them subject to arrest, fines, forced labor, and physical punishment for being unemployed. Such codes often forbade African Americans from doing any work other than field labor.
Outraged by such laws, Northern interests in Congress passed the 1866 Civil Rights Act over President Johnson's veto. Two years later, Congress drafted the Fourteenth Amendment, intended to give African Americans equal protection under the law.
In 1870 Congress passed the Fifteenth Amendment, which extended the right to vote to African American men. But southern states had any number of ways of getting around the Fifteenth Amendment's extension of suffrage to African American men. One of the more complicated was the "grand-father clause. "Louisiana, for example, instituted a literacy test as a requirement for voting, and then, in order to insure that illiterate whites would not be prevented from voting, the state instituted a grandfather clause that exempted anyone from meeting the requirement who had voted, or whose ancestors had voted, prior to January 1, 1866.
The Case of Plessy v. Ferguson and the Doctrine of"Separate but Equal"
In 1890, in an early piece of Jim Crow legislation, Louisiana adopted a law providing for "equal but separate accommodations for the white and colored races" on passenger railroads operating within the state. Black Louisianans immediately set about challenging the constitutionality of the law, and two years later they had a case that could be taken before the U.S. Supreme Court.
On June 7, 1892, Homer Plessy purchased a ticket on the East Louisiana Railway from New Orleans to Covington and refused to take a seat in the car for blacks. He was arrested and arraigned before Judge John Ferguson in New Orleans Criminal Court on a charge of having violated the 1890 law. Before his case could come to trial, Plessy filed a "writ of error" with the Supreme Court, challenging the law under which he was being held on the ground that it violated both the Thirteenth and Fourteenth Amendments to the Constitution.
On April 13, 1896, the Supreme Court handed down its decision in Plessy v. Ferguson. By a vote of seven to one, the justices ruled against Plessy, dismissing with little comment the argument relating to the Thirteenth Amendment and concentrating instead on the question of whether the Fourteenth Amendment's guarantee of citizenship and equal protection had been violated. Writing for the majority, Justice Henry Billings Brown wrote that, while the purpose of the Fourteenth Amendment was "undoubtedly to enforce the absolute equality of the two races before the law," the laws that permit or even require racial separation "do not necessarily imply the inferiority of either race to the other. ""Separate," in other words, could still be "equal. "It was, as one legal historian has put it,"bad logic, bad history, bad sociology, and bad constitutional law."
With the exception ofDred Scott v. Sandford, no case in the Supreme Court's history has been as widely condemned as Plessy v. Ferguson. Unlike the Dred Scott decision, however, Plessy v. Ferguson remained in force for almost sixty years. Under the cover of its argument, there were few if any activities that might not be legally segregated by state governments. With the Supreme Court's blessing, state legislatures rushed to pen dozens of Jim Crow laws, transforming what had been informal, de facto segregation into a de jure wall separating black and white in housing, transportation, and, most importantly, schooling. Not until Brown v. Board of Education in 1954 would that wall come down, replaced once again, many would argue, by de facto segregation.
Reversing Plessy v. Ferguson : The Decision to Desegregate Schools
The infamous history set in motion by the Plessy v. Ferguson decision was finally undone on May 17, 1954. On that date Brown v. Board of Education and the companion decision Bolling v. Sharpe were issued by the Supreme Court. A separate decision was required in the case of Washington, D.C., which, as a federal district, was not covered by the Fourteenth Amendment. The justices, ruling again unanimously, found segregation in district schools to be in violation of the Fifth Amendment's guarantee of due process. Referring to their Brown v. Board of Education ruling, they added that "in view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government."