Ride-in!

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Yet on the afternoon of October 15, 1883, Justice Bradley announced that the Court found Sections i and 2 of the Civil Rights Act of 1875 to be unconstitutional. (This disposed of five of the cases; the sixth, U.S. v. Hamilton , was denied review on a procedural point.) There was added irony in the fact that Bradley delivered the majority opinion for eight of the Justices. A one-time Whig, Bradley had struggled for a North-South compromise in the darkening months of 1860-61, then had swung to a strong Unionist position after the firing on Fort Sumter. He had run for Congress on the Lincoln ticket in 1862 and in 1868 headed the New Jersey electors for Grant. When the Thirteenth and Fourteenth Amendments were adopted, he had given them firm support, and his appointment to the Supreme Court by Grant in 1870 had drawn no criticism from friends of the Negro, as had the appointment of John Marshall Harlan seven years later.

Bradley’s opinion had a tightly reasoned simplicity. The Thirteenth Amendment forbade slavery and involuntary servitude, he noted, but protection against the restoration of bondage could not be stretched to cover federal regulation of “social” discriminations such as those dealt with in the 1875 statute. As for the Fourteenth Amendment, that was addressed only to deprivations of rights by the states ; it did not encompass private acts of discrimination. Thus there was no source of constitutional authority for “Sumner’s law”; it had to be regarded as an unwarranted invasion of an area under state jurisdiction. Even as a matter of policy, Bradley argued, the intention of the war amendments to aid the newly freed Negro had to have some limits. At some point, the Negro must cease to be “the special favorite of the law” and take on “the rank of a mere citizen.”

At the Atlanta Opera House on the evening of the Court’s decision, the end man of Haverly’s Minstrels interrupted the performance to announce the ruling. The entire orchestra and dress circle audience rose and cheered. Negroes sitting in the balcony kept their seats, “stunned,” according to one newspaper account. A short time earlier, a Negro denied entrance to the dress circle had filed charges against the Opera House management under the 1875 Act. Now his case—their case—was dead.

Of all the nine Justices, only John Marshall Harlan, a Kentuckian and a former slave-holder, announced that he dissented from the ruling. He promised to give a full opinion soon.

Justice Harlan’s progress from a supporter of slavery to a civil-rights dissenter makes a fascinating chronicle. Like Bradley, he had entered politics as a Whig and had tried to find a middle road between secessionist Democrats and antislavery Republicans. Like Bradley, he became a Unionist after the firing on Fort Sumter. But there the parallels ended. Although Harlan entered the Union Army, he was totally opposed to freeing the slaves, and his distaste for Lincoln and the Radicals was complete. Between 1863 and 1868, he led the Conservative party in Kentucky, a third-party movement which supported the war but opposed pro-Negro and civil-rights measures as “flagrant invasions of property rights and local government.”

By 1868, however, Harlan had become a Republican. The resounding defeat of the Conservatives in the 1867 state elections convinced him that a third party had no future in Kentucky. His antimonopoly views and his general ideas about economic progress conflicted directly with state Democratic policies, and when the Republicans nominated his former field commander, Ulysses S. Grant, for President, in 1868, Harlan was one of the substantial number of Conservatives who joined the G.O.P.

His views on Negro rights also changed at this time. The wave of vigilante activities against white Republicans and Negroes that swept Kentucky in 1868-70, with whippings and murders by the scores, convinced Harlan that federal guarantees were essential. He watched Negroes in Kentucky moving with dignity and skill toward useful citizenship, and his devout Presbyterianism led him to adopt a “brotherhood-of-man” outlook in keeping with his church’s national position. Perhaps he may have been influenced by his wife, Mallie, whose parents were New England abolitionists. As a realistic Republican politician, he was also aware that 60,000 Kentucky Negroes would become voters in 1870.

Thus a “new” John Harlan took the stump as Republican gubernatorial candidate in 1871, the year of the Louisville streetcar ride-ins. He opened his rallies by confessing that he had formerly been anti-Negro. But “I have lived long enough,” he said, “to feel that the most perfect despotism that ever existed on this earth was the institution of African slavery.” The war amendments were necessary “to place it beyond the power of any State to interfere with … the results of the war. …” The South should stop agitating the race issue, and should turn to rebuilding itself on progressive lines. When the Democrats laughed at “Harlan the Chameleon” and read quotations from his earlier anti-Negro speeches, Harlan replied: “Let it be said that I am right rather than consistent.”

Harlan soon became an influential figure in the Republican party and, when President Rutherford B. Hayes decided to appoint a southern Republican to the Supreme Court in 1877, he was a logical choice. Even then, the Negro issue rose to shake Harlan’s life again. His confirmation was held up because of doubts by some senators as to his “real” civil-rights views. Only after Harlan produced his speeches between 1871 and 1877 and party leaders supported his firmness on the question was he approved.