A Just and Lasting Peace: A Documentary History of Reconstruction

by John David Smith

  This condition of affairs, it is to be remembered, was the result solely of the movement for reform within the political party which owed its power mainly to the colored race. The reforms accomplished were demanded and supported by the colored voters. The reform leaders were chosen and sustained in their work by the sympathy and approval of a vast majority of that class of voters. If, as was the fact in the crusade against corruption in New York, party lines could have been disregarded; if the white minority had looked only to securing the best means for reform and good government, the reform movement would have advanced to complete success without serious hindrance or delay. Such coöperation would have been welcomed by the colored race. A better agency for peaceful and permanent reform was never presented. The colored race by nature and habit were mild, peaceful, order-loving, teachable, patient, and religious. Taught by such influences and methods as are made use of in other States, this race would have yielded to the sway of reason and justice in their political conduct, far more readily than did the masses through which for a time corrupt leaders and public officers maintained their power in New York. The work of maintaining good government without the aid and with the hostility of the greater part of the class possessing property and education must always be extremely difficult. No people or race that has shown itself able, under such conditions, to establish wise and liberal constitutions and laws, to set in successful operation the great agencies which produce and uphold our best civilization, and, when attacked and wellnigh overcome by official corruption and profligacy, to defeat and destroy this enemy, and to restore the rule of public integrity and honor, is without the very highest title to exercise the rights and assume the duties of self-government. This title the colored race earned by their conduct from 1868 to 1876.

  The fact of the present suppression and overthrow of colored suffrage at the South is now made the ground of the argument that the race was not equal to the duties of self-government. It is said that every people worthy of freedom and self-government will have freedom and self-government. It is said that the inability of a people to cope, in physical and material resources, with its enemies, is proof that such a people is not entitled to retain its political power. Such conclusions are as illogical as they are immoral. Under the principles of our Government and of all just government, rights are not dependent on numbers or physical strength or material resources. The right to vote, and to have that vote honestly counted—the right to hold and exercise the political power conferred by a majority of the votes when honestly counted—these are rights, under our Government, totally independent of the power or wealth or education of the voters. If at any time or in any place these rights are denied or defeated, there the most characteristic principle of our political system is dishonored. Nor is it an answer to this to say—even if the statement were true in any sense—that better government has been secured by the defeat of the will of a majority of the voters. In the first place, there can be no legitimate State government, good or bad, under our system, which does not derive its title from the actual legal result of the votes cast. A government otherwise derived is tainted by an original and incurable vice. In the next place, no government, however wise and pure in administration, is worth the price of a violation of the first principles upon which all governments, under our system, must rest. To hold otherwise is to make government dependent for its sanction, not on the consent of the governed nor on the will of the majority, but on the consent and will of any number or combination of persons who may chance to possess the preponderance of physical strength and resources.

  The present political supremacy of the white race in at least five of the Southern States is the result of the violent exclusion or fraudulent suppression of the colored vote. No honest and well-informed man will question this. In South Carolina, Mississippi, and Louisiana, the result has been reached by a system of deliberate, organized violence in all its forms, supplemented and crowned by the most daring and stupendous election frauds. It is an intolerable affront to every sentiment of humanity or dictate of justice, to argue that any results secured by such means are less detestable than the atrocities and crimes by which they were wrought. Whoever prevents any lawful voter from casting his vote, or constrains him to cast it contrary to his will, or deprives it, when cast, of its equal share in determining the result of the election, is guilty of a palpable and vulgar fraud. The defense of such fraud, by a reference to any results which may follow, is a specimen of degrading Jesuitism.

  What morality and reason thus affirm, experience confirms. The only serious menace to the prosperity, unity, and life of the nation has proceeded directly from a departure from the doctrine of equal civil and political rights—the claim and exercise of exclusive political control by a few over the many. The South from 1789 to 1860 was the complete type and embodiment of communities in which political power is held exclusively by property and education. By a law as sure and uniform in its results as the operations of Nature, these communities became oligarchies in the most odious sense of the term, hostile in spirit and action to all republican ideas. In seventy years from the foundation of the Government “ordained to establish justice and secure the blessings of liberty,” the wealth, education, and piety of the South stood ready, sword in hand, to destroy that Government, and to maintain in its place a government proclaimed by its founders to rest on the corner-stone of human slavery. And to-day again, as in 1860, the same oligarchical power, crushing the colored race under its feet, seeks with bloody and rapacious hands to grasp the national power as the agency through which it may extend and perpetuate its own spirit and practice of caste and oppression.

  THE CIVIL RIGHTS CASES AND JUSTICE HARLAN’S DISSENT

  (1883)

  Historians generally regard the 1883 Civil Rights Cases as the end point of Reconstruction. In considering five discrimination cases, the U.S. Supreme Court judged the equal-accommodations sections of the Civil Rights Act of 1875 to be unconstitutional. The government contended that the Thirteenth and Fourteenth Amendments outlawed private cases of discrimination, but the court disagreed.

  Writing for the majority, Associate Justice Joseph P. Bradley (1813–1892) argued that the Fourteenth Amendment concerned state acts, not acts of private individuals, and that the amendment empowered Congress only to correct, not to prevent, discrimination once it had occurred. Bradley went on to maintain that discriminatory practices in public facilities and accommodations, such as inns, theaters, and trains, were not the result of slavery and hence were not outlawed by the Thirteenth Amendment. Private conduct, he averred, was not amenable to legislation. Bradley also commented pointedly on shifting attitudes towards the ex-slaves by Northerners. The associate justice noted that the time had finally come for the freedman “when he takes the rank of a mere citizen, and ceases to be the 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.”

  In his famous and powerful lone dissent, Associate Justice John Marshall Harlan argued “the substance and spirit of the recent Amendments of the Constitution have been sacrificed by a subtle and ingenious verbal criticism.” He wrote that because amusements, hotels, and public conveyances, though owned privately, provided public services, their owners could not practice discrimination and therefore were under government regulation. Harlan also argued that certain discriminatory acts constituted “badges of slavery and servitude” and, accordingly, the Thirteenth Amendment empowered Congress to remove them by legislative action. He concluded by warning, “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.”

  Mr. Justice Bradley delivered the opinion of the court:

  These cases are all founded on the 1st and 2d sections of the Act of Congress, known as the C
ivil Rights Act, passed March 1, 1875, entitled “An Act to Protect all Citizens in their Civil and Legal Rights.” 18 Stat. at L. , 335. Two of the cases, those against Stanley and Nichols, are indictments for denying to persons of color the accommodations and privileges of an inn or hotel; two of them, those against Ryan and Singleton, are, one an information, the other an indictment, for denying to individuals the privileges and accommodations of a theater, the information against Ryan being for refusing a colored person a seat in the dress circle of Maguire’s theater in San Francisco; and the indictment against Singleton being for denying to another person, whose color is not stated, the full enjoyment of the accommodations of the theater known as the Grand Opera House in New York, “Said denial not being made for any reasons by law applicable to citizens of every race and color, and regardless of any previous condition of servitude.” The case of Robinson and wife against the Memphis and Charleston R. R. Company was an action brought in the Circuit Court of the United States for the Western District of Tennessee, to recover the penalty of $500 given by the 2d section of the Act; and the gravamen was the refusal by the conductor of the Railroad Company to allow the wife to ride in the ladies’ car, for the reason, as stated in one of the counts, that she was a person of African descent. The jury rendered a verdict for the defendants in this case upon the merits under a charge of the court to which a bill of exceptions was taken by the plaintiffs. The case was tried on the assumption by both parties of the validity of the Act of Congress; and the principal point made by the exceptions was, that the Judge allowed evidence to go to the jury tending to show that the conductor had reason to suspect that the plaintiff, the wife, was an improper person, because she was in company with a young man whom he supposed to be a white man, and on that account inferred that there was some improper connection between them; and the Judge charged the jury, in substance, that if this was the conductor’s bona fide reason for excluding the woman from the car, they might take it into consideration on the question of the liability of the Company. The case is brought here by writ of error at the suit of the plaintiffs. The cases of Stanley, Nichols and Singleton, come up on certificates of division of opinion between the Judges below as to the constitutionality of the 1st and 2d sections of the Act referred to; and the case of Ryan, on a writ of error to the judgment of the Circuit Court for the District of California, sustaining a demurrer to the information.

  It is obvious that the primary and important question in all the cases, is the constitutionality of the law; for if the law is unconstitutional, none of the prosecutions can stand.

  The sections of the law referred to provide as follows:

  “Sec. 1. That all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities and privileges of inns, public conveyances on land or water, theaters and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude.

  “Sec. 2. That any person who shall violate the foregoing section by denying to any citizen, except for reasons by law applicable to citizens of every race and color, and regardless of any previous condition of servitude, the full enjoyment of any of the accommodations, advantages, facilities or privileges in said section enumerated, or by aiding or inciting such denial, shall for every such offense forfeit and pay the sum of $500 to the person aggrieved there by, to be recovered in an action of debt with full costs; and shall also, for every such offense, be deemed guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $500 nor more than $1,000, or shall be imprisoned not less than thirty days nor more than one year; Provided, That all persons may elect to sue for the penalty aforesaid, or to proceed under their rights at common law and by state statutes; and having so elected to proceed in the one mode or the other, their right to proceed in the other jurisdiction shall be barred. But this provision shall not apply to criminal proceedings, either under this Act or the criminal law of any State; And provided, further, That a judgment for the penalty in favor of the party aggrieved, or a judgment upon an indictment, shall be a bar to either prosecution respectively.” Are these sections constitutional? The 1st section, which is the principal one, cannot be fairly understood without attending to the last clause, which qualifies the preceding part. The essence of the law is, not to declare broadly that all persons shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities and privileges of inns, public conveyances and theaters; but that such enjoyment shall not be subject to any conditions applicable only to citizens of a particular race or color, or who had been in a previous condition of servitude. In other words: it is the purpose of the law to declare that, in the enjoyment of the accommodations and privileges of inns, public conveyances, theaters and other places of public amusement, no distinction shall be made between citizens of different race or color, or between those who have and those who have not been slaves. Its effect is, to declare that, in all inns, public conveyances and places of amusement, colored citizens, whether formerly slaves or not, and citizens of other races, shall have the same accommodations and privileges in all inns, public conveyances, and places of amusement as are enjoyed by white citizens; and vice versa. The 2d section makes it a penal offense in any person to deny to any citizen of any race or color, regardless of previous servitude, any of the accommodations or privileges mentioned in the 1st section.

  Has Congress constitutional power to make such a law? Of course, no one will contend that the power to pass it was contained in the Constitution before the adoption of the last three Amendments. The power is sought, first, in the 14th Amendment, and the views and arguments of distinguished Senators, advanced whilst the law was under consideration, claiming authority to pass it by virtue of that Amendment, are the principal arguments adduced in favor of the power. We have carefully considered those arguments, as was due to the eminent ability of those who put them forward, and have felt, in all its force, the weight of authority which always invests a law that Congress deems itself competent to pass. But the responsibility of an independent judgment now thrown upon this court; and we are bound to exercise it according to the best lights we have.

  The 1st section of the 14th Amendment, which is the one relied on, after declaring who shall be citizens of the United States, and of the several States, is prohibitory in its character, and prohibitory upon the States. It declares 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.” It is state action of a particular character that is prohibited. Individual invasion of individual rights is not the subject matter of the Amendment. It has a deeper and broader scope. It nullifies and makes void all state legislation, and state action of every kind, which impairs the privileges and immunities of citizens of the United States, or which injures them in life, liberty or property without due process of law, or which denies to any of them the equal protection of the laws. It not only does this, but, in order that the national will, thus declared, may not be a mere brutum fulmen, the last section of the Amendment invests Congress with power to enforce it by appropriate legislation. To enforce what? To enforce the prohibition. To adopt appropriate legislation for correcting the effects of such prohibited state laws and state Acts, and thus to render them effectually null, void and innocuous. This is the legislative power conferred upon Congress, and this is the whole of it. It does not invest Congress with power to legislate upon subjects which 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 prov
ide 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 14th 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. . . .

  And so in the present case, until some state law has been passed or some state action through its officers or agents has been taken, adverse to the rights of citizens sought to be protected by the 14th Amendment, no legislation of the United States under said Amendment, nor any proceeding under such legislation, can be called into activity; for the prohibitions of the Amendment are against state laws and acts done under state authority. Of course, legislation may and should be provided in advance to meet the exigency when it arises; but it should be adapted to the mischief and wrong which the Amendment was intended to provide against; and that is, state laws, or state action of some kind, adverse to the rights of the citizen secured by the Amendment. Such legislation cannot properly cover the whole domain of rights appertaining to life, liberty and property, defining them and providing for their vindication. That would be to establish a code of municipal law regulative of all private rights between man and man in society. It would be to make Congress take the place of the State Legislatures and to supersede them. It is absurd to affirm that, because the rights of life, liberty and property, which include all civil rights that men have, are, by the Amendment, sought to be protected against invasion on the part of the State without due process of law, Congress may, therefore provide due process of law for their vindication in every case; and that, because the denial by a State to any persons, of the equal protection of the laws, is prohibited by the Amendment, therefore Congress may establish laws for their equal protection. In fine, the legislation which Congress is authorized to adopt in this behalf is not general legislation upon the rights of the citizen, but corrective legislation, that is, such as may be necessary and proper for counteracting such laws as the States may adopt or enforce, and which, by the Amendment, they are prohibited from making or enforcing, or such acts and proceedings as the States may commit or take, and which, by the Amendment, they are prohibited from committing or taking. It is not necessary for us to state, if we could, what legislation would be proper for Congress to adopt. It is sufficient for us to examine whether the law in question is of that character.