Civil Rights Cases, 1883

Sources

Civil Rights Act of 1875. Race remained a contentious issue in America after the Civil War, and racial discrimination a fact of life for minorities. Sen. Charles Sumner of Massachusetts sponsored the Civil Rights Act of 1875, which prohibited racial discrimination in public accommodations. Sumner said that “It is essential to just government that we recognize the equality of all men before the law, and, it is the duty of government in its dealings with the people to mete out equal and exact justice to ali, of whatever nativity, race, color, or persuasion, religious or political.” The act guaranteed that “ali persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, of inns, public conveyances on land and water, theaters and other places of amusement, subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color.” Violators could be fined up to $1,000, and/or be sent to jail for a year.

Reaction to the Act. The public response to this federal legislation varied from place to place. Some hotels closed rather than comply, while certain theaters interpreted “equal enjoyment” to mean that blacks could be seated in the balcony. A Louisville, Kentucky, theater restricted African Americans to the balcony, while the theater across the Street allowed them to sit anywhere. Federal judges, like the hotel and theater owners, also disagreed about the exact meaning of the Civil Rights Act. Some dismissed cases of discrimination because they believed the Civil Rights Act was an unconstitutional infringement on state or local power. Others ruled the Civil Rights Act a legitimate exercise of power. Federal judges in Texas, Maryland, Pennsylvania, and Kentucky found the act constitutional, while judges in New Jersey, California, and North Carolina did not.

In New York, Missouri, Kansas, and Tennessee panels of federal judges divided on the issue, calling for the Supreme Court to clarify the law.

The Civil Rights Cases. Five cases came before the Supreme Court in November 1882. Two of them involved hotels in Missouri; two concerned theaters in San Francisco and in New York City; and the fifth involved a railroad. In each case the plaintiff had been denied service because of color. The defendants had clearly and consciously based their refusals on the complainant’s race; but sometimes the person’s ethnicity was not obvious. For example, a husband and wife sued the Memphis and Charleston Railroad when the conductor forbade the woman from entering the women’s car. She was dark, but her husband was so light-skinned that the conductor thought he was white. Based on that assumption, the conductor deduced that the woman must be an “improper person,” and that her relationship with this white man was inappropriate. In the New York case, William Davis (an African American) and his lady friend (an octoroon, or a person of one-eighth black ancestry) bought two tickets to the Grand Opera House. When they appeared at the entrance, doorkeeper John Singleton told them their tickets were not valid. Davis and his friend then found a white boy who agreed to buy two more tickets, which the couple then presented to Singleton. The tickets were valid, Singleton admitted, but the theater managers did not admit “colored people.” “Perhaps the managers do not,” Davis said, “but the laws of the country do.” He refused to leave, was arrested, and then filed a civil suit in federal court.

The Supreme Court. When the five cases reached the Supreme Court, it was not clear how the Court would rule. The U.S. government argued that Congress had the power to pass the Civil Rights Act by virtue of the Thirteenth Amendment (1865), which forbade slavery, and the Fourteenth Amendment (1865), which barred states from denying any person the equal protection of the laws. Racial discrimination was a badge of servitude, the government maintained, and Congress had the power to eliminate it. On the other hand, the defendants argued that Congress did not have the power to tell individuals how to run their businesses, and that only certain kinds of state action were banned under the Fourteenth Amendment. For example in the Slaughterhouse Cases (1873) the Court determined that the Fourteenth Amendment forbade the abridgment of those rights associated with United States, not state, citizenship. In United States v. Cruikshank (1876) the Court said Congress could forbid states from discriminating, but not individual citizens.

The Court Rules. On 15 October 1883 Justice Joseph Bradley wrote the majority opinion of the Supreme Court, which held that the Civil Rights Act of 1875 was unconstitutional. The Thirteenth Amendment, according to eight of the nine justices, did not give Congress the broad authority claimed by the U.S. government. Private discrimination was neither slavery nor involuntary servitude. “It would be running the slavery argument into the ground to make it apply to every act of discrimination. When a man has emerged from slavery, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws.” Bradley clearly thought that this stage had been reached. In addition the Fourteenth Amendment prohibited state actions of a certain character — for example, depriving citizens of the right to vote or serve on juries or hold property. The kinds of discrimination banned by the Civil Rights Act, Bradley said, could not be touched by congressional action because they dealt with individual businesses.

Reaction. At a protest meeting in Lincoln Hall in Washington, African American leader Frederick Douglass said the Court had left his people “naked and defenseless against . . . malignant, vulgar, and pitiless prejudice.” Douglass recalled that before the Civil War the Supreme Court had ruled that states and individuals could not interfere with the Fugitive Slave Act. “When slavery was the base-line of the Republic,” Douglass charged, Congress’s power was unlimited. Now that freedom was the issue, the Court restricted Congress’s power and said individuals could deprive one another of liberty. Orator Robert Ingersoll said that “From the moment of the adoption of the thirteenth amendment the law became color-blind.” John Finnel of Kentucky wrote to his friend Justice John M. Harlan: “Now the patriotic vagabonds of the South will feel called upon to vindicate the Supreme Court by ‘jumping on’ the poor darkey. . . .”

Harlan’s Dissent. Harlan was the only former slave-owner on the Supreme Court; he was also the only dissenter in these cases. The Thirteenth Amendment, Harlan wrote, was intended to abolish slavery. The institution of slavery rested on an assumption of racial inferiority, and in order to do away with slavery this notion of inferiority had to go as well. The second clause of the amendment, Harlan wrote, gave Congress the power to enforce the act through “appropriate legislation.” He observed that his colleagues on the Court had declined to decide in 1877 whether it was appropriate for states to regulate grain elevators, but now the Court would decide what kind of laws were “appropriate” to remove racial barriers. In addition, Harlan noted that aside from granting all Americans’ citizenship, the Fourteenth Amendment gave Congress further power to remove racial distinctions. As for Bradley’s contention that the Civil Rights Act made blacks “the special favorite of the laws,” Harlan said the Act merely extended to blacks the same rights as other citizens enjoyed. “The one underlying principle of congressional legislation has been to enable the black race to take the rank of mere citizen. The difficulty has been to compel a recognition of their legal right to take that rank. . . . Today, it is the colored race which is denied, by corporations and individuals wielding public authority, rights fundamental in their freedom and citizenship. At some future time, it may be that some other race will fall under the ban of race discrimination. If the constitutional amendments be enforced, according to the intent with which, as I conceive, they were adopted, there cannot be in this republic, any class of human beings in practical subjection to another class, with power . . . to dole out. . . just such privileges as they may choose to grant.” Harlan’s forceful dissent was widely published and is one of the classic statements in the Supreme Court’s history. One hundred years later his position would be accepted as the legitimate one. However, at the time, the majority of the Court allowed certain persons to be treated as second-class citizens.

Sources

Alan F. Westin, “The Case of the Prejudiced Doorkeeper,” in Quarrels That Have Shaped the Constitution, edited by John A. Garraty (New York: Harper & Row, 1962), pp. 128-144;

Tinsley E. Yarbrough, Judicial Enigma: The First Justice Harlan (New York: Oxford University Press, 1995).