by Peter Irons
Before the Civil War, Harlan had voiced no opposition to slavery, but he supported the Union, organizing and leading a regiment until he resigned his commission in 1863 to take over the family law practice after his father died. Harlan opposed ratification of the Thirteenth Amendment in 1865 as a violation of the property rights of slave owners. Harlan’s views on race take on added significance in light of his solitary dissenting opinions in the Civil Rights Cases in 1883 and Plessy v. Ferguson in 1896, in which he supported the rights of blacks to enjoy public accommodations on an equal basis with whites. But these prophetic opinions, for which Harlan has been justly praised by historians, should be viewed in the context of his own history.
What is not widely recalled is that Harlan’s firm belief in political equality for blacks was tempered by his equally firm rejection of their social equality with whites. On this issue, Harlan echoed the views and the words of Abraham Lincoln, whom he resembled in many ways. Both men agreed, as Harlan wrote, that “even upon grounds of race, no legal right of a citizen is violated by the refusal of others to maintain merely social relations with him.” Harlan and Lincoln did not consider blacks to be their social equals. In this regard, they shared the views of most whites, even the most educated and enlightened. But their commitment to the legal and political equality of both races put Harlan and Lincoln at odds with those who considered blacks inferior in every respect. This was the contested ground on which Harlan and his colleagues fought their postwar battles.
President Hayes, who had pledged to serve just one term, made two more nominations to the Supreme Court. To replace the undistinguished Justice William Strong, who resigned in December 1880, Hayes nominated William B. Woods, an Ohio native who had moved to Alabama after the Civil War to serve as a “carpetbagger” on the federal circuit court. Like John Harlan, Woods served in the Union army and belonged to the Republican Party. Aside from those facts, the two men had nothing in common. During his six years on the Court, Woods voted consistently against the rights of blacks, and is justly considered a “forgotten justice,” the epitaph bestowed by one biographer.
Before he left office in 1881, President Hayes nominated his Kenyon College classmate, Stanley Matthews of Ohio, to fill the seat of justice Noah Swayne, who retired after nineteen years of undistinguished service. As a federal attorney, Matthews had prosecuted violators of the fugitive slave laws, but he later fought in the Union army. Elected to the Senate as a Republican, he served on the commission that placed Hayes in the White House. The Senate hardly ever rejected one of its own members for the Supreme Court, but Matthews was closely tied to railroad interests as chief counsel to Jay Gould, whose financial deals had ruined many investors. The Senate Judiciary Committee refused to act on the nomination, and Matthews was left to hang after Hayes left the White House.
President James Garfield, who replaced Hayes in 1881, surprised many by renominating Matthews, Garfield owed his debts to Jay Gould and the railroad lobby, and this was a small price to pay for political favors. After two months of heated debate, Matthews squeaked through the Senate by one vote. During his seven years on the Supreme Court, Matthews wrote only two significant opinions; one denied the protections of the Bill of Rights to criminal defendants, and one extended those protections to members of racial minorities. This legal ambivalence, which reflected his personal struggles, turned Matthews into the classic “man in the middle.”
Garfield spent just six months in the White House before his death from a bullet fired by a disappointed office seeker. His unexpected and unprepared successor, Vice President Chester A. Arthur of New York, assumed his office with a reputation as a “spoilsman” who handed out political offices for the benefit of party coffers. To the surprise of many, President Arthur supported civil service reform in the federal government and added two respected lawyers—both with substantial judicial experience—to the Supreme Court. Arthur’s first nomination, to replace Justice Nathan Clifford, whose death in 1881 came after several years of senility, gave the Court’s “New England seat” to Horace Gray of Massachusetts. Gray had served for almost two decades on his state’s highest court, including eight years as chief justice. An economic and social conservative, Gray served on the Supreme Court for twenty years and wrote only ten dissents; he flowed with the tide of his time, supporting corporate powers over human rights. President Arthur bestowed his second nomination on Samuel Blatchford to succeed his fellow New Yorker Ward Hunt, who retired in 1882. Blatchford was a loyal Republican and had served on federal courts for fifteen years; during his eleven years on the Supreme Court, he specialized in admiralty and patent law. He died in 1893, leaving no visible imprint on constitutional law.
Five Republican presidents left their marks on the Supreme Court during the two decades between Lincoln’s nomination of Noah Swayne in 1862 and Arthur’s choice of Samuel Blatchford in 1882. The fourteen men who joined the Court over this period include one—John Harlan—who was ranked with the “great” justices in a 1970 survey of legal scholars, and four—Samuel Miller, Stephen Field, Joseph Bradley, and Morrison Waite—ranked in the “near great” category. (Waite’s ranking owed more to his longevity and position as Chief Justice than to his legal abilities or judicial leadership.) But with the exception of Harlan, none of these five (or the other nine) displayed much sympathy for the constitutional claims of blacks. As Reconstruction faltered and finally died, one southern editor boasted that the Fourteenth and Fifteenth Amendments “may stand forever; but we intend . . . to make them dead letters on the statute-book.” The Supreme Court did the job for the unrepentant South.
The Court imposed a judicial death sentence on the Civil Rights Act of 1875 eight years after its passage. Under the caption Civil Rights Cases, the justices decided four cases from Kansas, California, Tennessee, and Missouri. The dry legal wording of the federal indictments in these disparate cases illustrates the humiliation that black citizens endured every day, north and south and across the continent; these musty records put human faces on cases decided without names.
In Topeka, Kansas (the home of Linda Brown of the celebrated Brown case in 1954), “on the tenth day of October, in the year of our Lord one thousand eight hundred and seventy-five, one Murray Stanley, having management and control of a certain inn, did unlawfully deny to one Bird Gee the full enjoyment of the accommodations of said inn by denying to said Bird Gee the privilege of partaking of a meal, to wit, of a supper, at the table of said inn, for the reason that he, the said Bird Gee, was a person of color and of the African race, and for no other reason whatever, contrary to the act of Congress, and against the peace and dignity of the United States of America.”
The California indictment charged that “on the 4th day of January, A.D. 1876, Michael Ryan did unlawfully deny to George M. Tyler, the full enjoyment. of accommodations of Maguire’s Theatre in the city of San Francisco, as follows, that the said George M. Tyler did purchase a ticket of admission, for the sum of one dollar, to the orchestra seats, and said orchestra seats did possess superior advantages to any other portion of said theatre, and that the said Michael Ryan, who was the ticket-taker of said theatre, did then and there, by force and arms, deny to said George M. Tyler, admission to said theatre, solely for the reason that said George M. Tyler was and is of the African or negro race, being what is commonly called a colored man, and not a white man.”
The third indictment charged the Memphis & Charleston Railroad Company with discriminating against Sallie J. Robinson, stating that “on the 22nd of May, 1879, Mrs. Robinson, wishing to be carried from Grand Junction, Tennessee, to Lynchburg, Virginia, purchased tickets entitling her to be carried as a first-class passenger over the defendant’s railway, and that being so entitled Mrs. Robinson got upon defendant’s train of cars at Grand Junction, Tennessee, and. attempted to go into the ladies’ car, being the car provided for ladies and first-class passengers, when the conductor of the train refused to admit her into the car, and tha
t in so refusing her admission the conductor took Mrs. Robinson by the arm and jerked her roughly around, wherefore she was damaged $500, and therefore the plaintiff sues.”
The final indictment, printed without dates, alleged that in St. Louis, Missouri, “one Samuel Nichols was the proprietor of a certain common inn called the Nichols House, for the accommodations of travelers and the general public, that one W. H. R. Agee, was an applicant to the said Samuel Nichols for the accommodations of said inn as a guest therein, but the said Samuel Nichols did deny to the said W. H. R. Agee admission as a guest in said inn, for the sole reason that the said W. H. R. Agee, was a person of color and one of the Negro race.”
The Supreme Court decided the Civil Rights Cases on October 15, 1883, with an opinion by justice Joseph Bradley (whose deciding vote had elected Rutherford Hayes as president in 1877). the intervening six years, Bradley had compiled a mixed record in cases that dealt with the rights of blacks. In 1880, he voted to nullify a West Virginia law that restricted jury duty to whites: the Court declared that the Fourteenth Amendment’s Equal Protection Clause was designed “to protect an emancipated race and to strike down all possible legal discriminations” against blacks. The same year, Bradley joined a decision that rejected a habeas corpus petition by a Virginia judge who had been indicted and held in federal custody for excluding blacks from jury duty. These cases involved what the Court. called “political rights,” those which stemmed from the essential duties of citizenship, as distinguished from “civil rights,” defined as those which protect equal access to public facilities. But only in the jury cases did Bradley vote to strike down state laws or practices that singled out blacks for discrimination. In a case decided in 1883, before the Civil Rights Cases reached the Court, Bradley voted to invalidate the section of the Ku Klux Klan Act of 1870 that the Court had read so narrowly in its Cruikshank decision in 1876. The Court’s decision in the Klan case, United States v. Harris, slammed the door on federal protection of blacks against terrorist attacks.
Justice Bradley’s opinion in the Civil Rights Cases slammed more doors in black faces, those of restaurants, hotels, theaters, and railroads. Congressional sponsors of the Civil Rights Act had relied on the enforcement clauses of both the Thirteenth and Fourteenth Amendments; Bradley knocked down both of the law’s constitutional supports. In dealing with the Thirteenth Amendment, he offered two statements of its purpose. The amendment, he first wrote, “has only to do with slavery and its incidents.” Bradley then posed a rhetorical question. Did the refusal of proprietors of “public accommodations” to admit or serve blacks, he asked, “inflict upon such persons any manner of servitude, or form of slavery, as those terms are understood in this country,” This question had an easy answer. “The Thirteenth Amendment,” Bradley responded, “has respect, not to distinctions of race, or class, or color, but to slavery.”
The answer to Bradley’s question was not as simple as it seemed to him. His first statement of the amendment’s purpose included not only the prohibition of slavery but also of “its incidents.” Bradley did not invent this term; it came from the speeches of the amendment’s congressional sponsors, who defined the “incidents” of slavery as laws or practices designed to keep blacks in subjugation to whites. Racial discrimination in public accommodations could well be considered an “incident” of slavery. Almost a century later, in 1968, the Supreme Court ruled that Congress had power under the Thirteenth Amendment to outlaw housing discrimination as an “incident” of slavery. But in 1886, justice Bradley ignored this qualifying term in his strictly literal reading of the Thirteenth Amendment.
Bradley treated the Fourteenth Amendment in a similar manner. He first conceded that, unlike the Thirteenth Amendment, the Fourteenth “extends its protections to races and classes, and prohibits any State legislation which has the effect of denying to any race or class, or to any individual, the equal protection of the laws.” Bradley then posed another rhetorical question. “Can the act of a mere individual, the owner of the inn, the public conveyance or place of amusement,” he asked, be regulated by Congress unless “the denial of the right has some State sanction or authority?” Once again, Bradley had framed a question to provide an easy answer. Although “the laws of all the states, so far as we are aware,” he wrote, required the proprietors of public accommodations to serve “all unobjectionable persons who in good faith apply for them,” unless “the laws themselves make any unjust discrimination” on racial grounds, the Fourteenth Amendment provided no power to prohibit such discrimination. In other words, Congress could only deal with “state action” that denied blacks the equal protection of the laws.
Having dismissed the claims of Bird Gee, George Tyler, Sallie Robinson, and W. H. R. Agee, Justice Bradley concluded his opinion with a patronizing lecture to them and all other black citizens. “When a man has emerged from slavery,” he wrote, “and with the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be a special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men’s rights are protected,” This one sentence summed up the racial attitudes of “enlightened” whites—like Bradley—who paid no heed to the hooded night riders whose whips and ropes had become the “ordinary modes” of enforcing the Jim Crow laws that southern lawmakers passed after the Supreme Court struck down the federal Civil Rights Act.
Only one justice took issue with Bradley’s constitutional literalism and condescending tone. “The opinion in these cases proceeds,” wrote John Marshall Harlan, “upon grounds entirely too narrow and artificial.” He devoted most of his thirty-five-page dissent to Bradley’s dismissal, in just four pages, of the Fourteenth Amendment claims in the Civil Rights Cases. Congress had intended, Harlan noted, to wipe out all discrimination against blacks and “to secure and protect rights belonging to them as freemen and citizens; nothing more.” He took aim at Bradley’s formalistic distinction between “state action” and private discrimination. “In every material sense applicable to the practical enforcement of the Fourteenth Amendment,” he wrote, “railroad corporations, keepers of inns, and managers of places of public amusement are agents or instrumentalities of the State, because they are charged with duties to the public, and are amenable, in respect of their duties and functions, to governmental regulation.”
On that issue, Harlan relied on the common-law principle that “when private property is devoted to a public use, it is subject to public regulation,” as the Court had stated in an 1877 opinion by Chief Justice Waite, upholding state regulation of fees charged by owners of grain elevators. Harlan saw no legal difference between grain elevators, railroads, and restaurants. All served the public and all were subject to regulation. Bradley had conceded that owners of “public accommodations” were required to serve “all unobjectionable persons who in good faith apply for them.” How, then, could those owners refuse service on the basis of race or color? Bradley’s invocation of the “state action” doctrine to answer this question seemed “artificial” to Harlan.
One paragraph in Harlan’s dissent drew little notice at the time, but proved an accurate prophecy of the Court’s later ruling on the “public accommodations” provisions of the Civil Rights Act of 1964, in which Congress used language virtually identical to the statute the Court struck down in 1883. Addressing the case of Sallie Robinson against the Memphis & Charleston Railroad, Harlan raised “the question whether Congress, in the exercise of its power to regulate commerce amongst the several states,” could prohibit discrimination “in public conveyances passing from one State to another.” He suggested that the Court could have upheld the 1875 law, at least in Mrs. Robinson’s case, under the Commerce Clause of the Constitution. His fellow justices did not heed Harlan’s suggestion, but in 1964 the Court relied on the Commerce Clause in Heart of
Atlanta Motel v. United States, upholding the power of Congress to outlaw discrimination in hotels and motels that attracted guests from other states. The Court later expanded this ruling to cover every kind of “public accommodation,” even those as small and local as barber shops.
Harlan concluded with a swipe at Bradley’s patronizing lecture to blacks. “It is,” he wrote, “scarcely just to say that the colored race has been the special favorite of the laws. The statute of 1875, now adjudged to be unconstitutional, is for the benefit of citizens of every race and color.” He reminded his colleagues—and the nation—that “class tyranny” could be imposed by any group that controlled power. “Today, it is the colored race which is denied, by corporations and individuals wielding public authority, rights fundamental in their freedom and citizenship,” Harlan wrote. “At some future time, it may be that some other race will fall under the ban of race discrimination.”