A People's History of the Supreme Court

by Peter Irons

  Having dismissed arguments against the Jim Crow law based on the Constitution, Brown looked outside its pages for doctrine and precedent to support is opinion. He found his doctrine in the “police powers” of government and precedent in one state court decision. As noted earlier, states possess implied “police powers” to protect the public’s health, safety, welfare, and morals. In the absence of constitutional limitations, which Brown had already denied in Plessy, laws based on these powers need only demonstrate a “reasonable” basis to pass judicial scrutiny. Brown did not specify which of Louisiana’s police powers the Jim Crow law furthered. And he did not elaborate on the “reasonable” basis for the law. He simply granted a “large discretion” to the state legislature. “In determining the question of reasonableness,” he wrote, lawmakers were “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.”

  The “people” Brown had in mind, to whose “customs and traditions” he deferred, and whose “comfort” he wished to protect, were those white people in Louisiana who did not want to share railway cars with blacks. In other words, the racists of Louisiana. To support his position, Brown cited a New York supreme court decision of 1883, upholding racial segregation in Brooklyn’s schools. A twelve-year-old black girl, Teresa King, had sued James Gallagher, principal of Public School No. 5, after she was turned away from the white school, the closest to her home. Justice Brown borrowed liberally from the opinion in King v. Gallagher, including its statement that racial harmony cannot be achieved “by laws which conflict with the general sentiment of the community upon whom they are designed to operate.” This meant, of course, the “sentiment” of the white community. It is ironic that both cases Brown cited on the issue of school segregation came from northern states, Massachusetts and New York; Jim Crow did not perch only in southern trees.

  Justice Bradley had told blacks in the Civil Rights Cases that they were no longer “the special favorite of the laws.” Justice Brown delivered his own patronizing lecture to Homer Plessy. “We consider the underlying fallacy of the plaintiff’s argument,” he wrote, “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.”

  Albion Tourgee’s challenge that the justices imagine themselves with black skin and envision their reaction to discrimination obviously failed with Justice Brown. He wore a black robe, but his white skin protected him from “social” inferiority. Brown’s last words in Plessy signaled the judicial capitulation to racism. “If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.”

  Justice Brown’s majority opinion covered twelve pages in the Court’s reports; Justice Harlan’s dissent matched it precisely in length. Point by point, case by case, Harlan answered with a devastating rebuttal. He turned first, as had Brown, to the Thirteenth Amendment. “It not only struck down the institution of slavery,” he wrote, “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.” Despite the intent of those who framed that amendment, Harlan recognized that it proved “inadequate to the protection of the rights of those who had been held in slavery,” which led to adoption of the Fourteenth and Fifteenth Amendments. Between them, the Civil War amendments “removed the race line from our governmental systems.” It was no longer allowed for “any public authority to know the race of those entitled to be protected in the enjoyment” of constitutional rights.

  Harlan turned for precedent on this point to his own words, quoting from an opinion handed down the same day Plessy was argued. Referring to the Court’s prior decisions in jury discrimination cases, he had written in Gibson v. Mississippi that “underlying all of those decisions is the principle that the Constitution” forbids official discrimination “against any citizen because of his race. All citizens are equal before the law.” Harlan did not mention, however, that his Gibson opinion had upheld a death sentence against a black defendant, convicted by an all-white jury in a county where blacks far outnumbered whites but never served on juries. Like most judges, Harlan looked for legal principles wherever he could find them.

  A major thrust of Harlan’s dissent was that Brown had erred in distinguishing between “political” and “social” rights, limiting the former to jury duty and removing the latter from constitutional protection. Harlan used the broader term of “civil rights” to include protection from discrimination in all places subject to state regulation, reaching back almost five decades in citing a Supreme Court ruling that a railroad company held “a sort of public office, and has public duties to perform,” which must be done without discrimination. But Harlan did not rest his dissent on precedent; he cited just ten cases, against more than forty in Brown’s opinion. He relied on one simple point: the Civil War amendments were designed to prohibit states from discriminating against blacks in their enjoyment of the “civil rights” that all citizens held. Borrowing from Albion Tourgee’s brief, Harlan put this point into a sentence that has become famous, perhaps the most quoted in Supreme Court history: “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Harlan’s, next sentence borrowed his own words from the Gibson opinion: “In respect of civil rights, all citizens are equal before the law.”

  The notion of a “color-blind” Constitution has enormous appeal as a guiding principle. But there are dangers in substituting slogans for hard, realistic analysis. Harlan’s famous sentence has been ripped from its context by those—including Supreme Court justices—who have wielded it in recent years as a weapon against affirmative action and other “race-conscious” remedial laws and programs. Those who quote the “color-blind” sentence invariably fail to quote the sentences that preceded it in Harlan’s opinion. “The white race deems itself to be the dominant race in this country,” he wrote. “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.”

  Harlan stated in these sentences the reality of race in 1896. Whites held the reins of power, which they used to whip blacks into submission. Harlan does not deserve scorn for acknowledging this reality, however much it reflected the “pride of race” that he celebrated. He had no more desire for “social equality” with blacks than Justice Brown. He was, after all, a man of his times, the son of slave owners and a man of superior prestige, education, wealth, and power. But he was not a racist like Chief Justice Taney. “In my opinion,” Harlan wrote in his Plessy dissent, “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.” He was right. But hardly anyone agreed at the time. The Court handed down decisions in fifty-two other cases the day it ruled against Homer Plessy. Three of these—dealing with the laws of contract, inheritance, and copyright—were reported on the front page of the New York Times. The editors relegated the Plessy decision to a third-page column on railroad news, between cases on train routes and improvement bonds. And the Court’s leading historian, Charles Warren, did not even mention Plessy in his massive work, published three decades later.

  The immediate impact of the Court’s decision fell on Homer Plessy. On January 11, 1897, he entered a “guilty” plea in criminal district court to the charges brought against him in 1892 and paid a fine of $25. The citizens’ committee that supported his challenge had raised almost $3,000; it spent the last $60 to inscribe a “flattering testimonial” to Albion Tourgee, Plessy’s lawyer did not
flatter the Supreme Court, lamenting that its decision had “virtually nullified the fourteenth amendment . . . and emasculated the thirteenth.”

  The later impact of Plessy and the “separate but equal” doctrine fell upon all black Americans and other racial minorities as well. Even justice Harlan Bowed to its “authority” as precedent. Writing for the Court in 1899, he upheld the power of Richmond County in Georgia to provide a high school for white students but none for blacks. Harlan held in cumming v.Board of Education that ”the education of the people in schools maintained by state taxation is a matter belonging to the respective States” and was immune from federal judicial scrutiny “except in the case of a clear and unmistakable disregard of rights secured by the supreme law of the land.” Regardless of his own view of these rights, Plessy left Harlan with no choice in this case.

  Almost three decades later, ruling in 1927, the Supreme Court relied on Harlan’s statement in cumming to keep Martha Lum out of the white high school in Bolivar County, Mississippi. School officials assigned Martha, who was Chinese, to the “colored” school; her father, Gong Lum, sued the state education superintendent. His lawyers argued to the Supreme Court that “ ‘Colored’ describes only one race, and that is the negro.” Whites maintained separate schools to protect their children from the “danger” of “the infusion of the blood” from blacks. “The white race may not legally expose the yellow race to a danger that the dominant race recognizes and . . . guards itself against,” Gong Lum’s lawyers argued. Upholding Martha’s exclusion from the white school, Chief Justice William Howard Taft quoted both Henry Brown in Plessy and John Harlan in Cumming to support his conclusion that no “different result can be reached, assuming the cases above cited to be rightly decided.” Years after they died, the judicial antagonists of 1896 had become partners in providing judicial support for the Jim Crow system that survived both Harlan and Brown.

  The Plessy decision did not, of course, end the legal conflicts over Jim Crow laws, nor did it dampen the smoldering anger of blacks against their denial of the “equal protection of the laws” promised them in the Constitution. Justice Harlan added a prophetic warning to his Plessy dissent. “The destinies of the two races, in this country, are indissolubly linked together,” he wrote, “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” The Plessy decision, of course, watered the seeds of Jim Crow laws that sprouted across the country and flourished for another six decades. Another warning came in 1903 from W. E. B. Du Bois, the leading black thinker of his time, in his book the Souls of Black Folk. “The problem of the Twentieth Century,” Du Bois wrote at its beginning, “is the problem of the color-line.” As we enter a new century, that problem remains unsolved in a country whose founders proclaimed long ago that “all men are created equal.”

  SECTION IV

  “Liberty in a Social Organization”

  19

  “The Spectre of Socialism”

  No country on earth grew faster than the United States during the last four decades of the nineteenth century. Between 1860 and 1900 the nation’s population swelled from 31 to 75 million, with 20 million people living west of the Mississippi. The number of farms grew from two million to six million, and the development of machines like combines, reapers, and harvesters turned barren and into “amber waves of grain” that spread across hundreds of miles in the Midwest. It took three hours of labor in 1830 to produce a bushel of wheat; by 1900 the time had decreased to ten minutes. American farmers produced more than their counterparts in any other country, but they did not receive their fair share of the bounty they reaped from the land.

  Blacks were not the only group of Americans that lived in virtual peonage after the Civil War. Farm equipment was expensive, and farmers borrowed heavily from banks to purchase machines and supplies. Especially in the South, black and white farmers alike became victims of the “crop-lien” system: the merchants who sold them supplies would demand a lien in effect, a mortgage on the crop—and charge up to 25 percent interest. Lawrence Goodwyn, a leading historian of farmers’ protest movements, wrote that “the crop lien system became for millions of Southerners, white and black, little more than a modified form of slavery.”

  In the Midwest, bankers and railroads squeezed farmers with high interest rates and even higher tolls for shipping their goods to markets. Railroads brought millions of bushels of wheat to cities like Kansas City and Chicago, where farmers paid exorbitant prices to store their produce in grain elevators, the giant storage bins into which grain was “elevated” before its sale to millers. In most cases, those who owned railroads and grain elevators enjoyed—and exploited—monopolies granted by compliant state legislators, many of them bribed for their votes. Beginning in 1870, a movement called the Grange—also known as the Patrons of Husbandry—spread across the Midwest like a grass fire, enlisting thousands of angry farmers in a crusade against price gouging. The Grangers railed most loudly against the railroads: “The State must either absorb the railroads or the railroads will absorb the State,” they cried.

  Grangers flexed their political muscles and persuaded lawmakers in several midwestern states to pass laws that set maximum rates for railroads and grain elevators. The Panic of 1873 forced many railroads into bankruptcy, and their owners could no longer bankroll the widespread bribery that had protected them from rate regulation. But they still complained about the Granger movement. “That it has effectually destroyed all future railroad enterprises, no one who is acquainted with its effect in money centers will for a moment doubt,” one railroad president wrote in 1874.

  Rebuffed by state lawmakers, the midwestern monopolists turned to federal judges for protection, hoping they would employ the emerging doctrine of “substantive due process” to strike down the Granger laws. Corporate lawyers filed dozens of suits against these laws, claiming they violated the Fourteenth Amendment by depriving their clients of liberty and property without “due process of law.” In making this claim, the corporate bar urged judges to review the “substance” of laws and decide whether they infringed a protected right. Prior to the 1870s, most judges considered themselves limited to examining the “process” by which a law was enacted. If legislators had followed the rules, and the law was a “reasonable” exercise of the state’s “police powers,” or of an express constitutional power, judges would uphold the law This was the doctrine known as “procedural due process,” a seemingly redundant term that was devised in this period of legal innovation to distinguish it from “substantive due process,” under which laws that obeyed all the procedural rules could still be struck down.

  Debates over judicial power to examine the “substance” of legislation took place largely in the pages of law reviews and legal treatises; the general public had little idea of the stakes until judges began striking down hundreds of state laws in the 1880s and 1890s. One of the earliest and most influential proponents of substantive due process doctrine was Thomas M. Cooley, a Michigan judge and law professor whose Treatise on Constitutional Limitations, published in 1868, argued that a “legislative enactment is not necessarily the law of the land.” Laws that met all the “procedural” tests of due process would nonetheless fail if they represented “arbitrary interference” by the state with rights of private property. Cooley elevated “liberty of contract” to the constitutional pantheon; if a law interfered with the right of any person—including corporations—to make any lawful contract, he wrote, “it can scarcely be doubted that the act would transcend the due bounds of legislative power, even if it did not come into conflict with express constitutional provisions.”

  Cooley’s treatise offered legal support for laissez-faire economics and the Social Darwinism of Herbert Spencer, the most influential nineteenth-century advocate of limited government. Spencer, an Englishman, transformed Charles Darwin’s flexible concept of “natu
ral selection” in the evolution of species into an inflexible law, based on “the survival of the fittest.” His major book, Social Statics, was first published in England in 1851 and found a receptive audience for the American edition in 1865. Spencer preached a stern doctrine, much like the Puritans who preceded him by two centuries. “The poverty of the incapable, the distresses that come upon the imprudent, the starvation of the idle, and those shoulderings aside of the weak by the strong,” he wrote, “are the decrees of a large, far-seeing benevolence.”

  “It would be difficult to overestimate Spencer’s popularity in the United States during the quarter-century after the Civil War,” historian Sidney Fine wrote in Laissez Faire and the General-Welfare State. Spencer’s American publisher sold almost a half million copies of his books, and his most zealous supporter, Edward Youmans, founded the Popular Science Monthly in 1872 to spread the gospel of Social Darwinism. Articles like “Law as a Disturber of Social Order” and “Encroachments of the State” denounced every legislative effort to improve the lot of working people. One author complained that the people had “found a new toy—the power of legislative action—and were playing with it with a kind of greedy zest.”

  Lawyers and judges embraced Spencer’s ideas with special passion. “It was in the courts that the idea of laissez faire won its greatest victory,” wrote Sidney Fine, although judicial endorsement of Social Darwinism had its critics and temporary setbacks. The most important regulation case of the 1870s, Munn v. Illinois, posed a “due process” challenge to an Illinois law that set maximum charges for grain storage in Chicago, into which grain poured in railroad cars and left in flour bags. Of the city’s fourteen grain storage companies, Munn & Scott dominated the business with a capacity of 2,700,000 bushels. Its principal owner, Ira Munn, drew the wrath of farmers for his shady dealings and exorbitant charges. Munn mixed superior grain with inferior grades and conspired with his “competitors” to fix prices. The exposure of Munn’s corrupt practices led farmers to press city officials to curb his abuses, but he had powerful friends in City Hall and farmers did not vote in Chicago. They did, however, vote in “downstate” districts, and the Grangers persuaded the state legislature to curb Munn’s price-fixing deals with prices fixed by a public board he did not control. The 1871 law required the owners of storage companies in Chicago to secure a licence from the Cook County court and set a maximum charge of two cents per bushel for the first thirty days of storage.