In his peroration, Harlan replied to Bradley’s comment that Negroes had been made “a special favorite of the law.” The war amendments had been passed not to “favor” the Negro, he declared, but to include him as “part of the people for whose welfare and happiness government is ordained.” 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. …

The Civil Rights Cases ruling did two things. First, it destroyed the delicate balance of federal guarantee, Negro protest, and private enlightenment which was producing a steadily widening area of peacefully integrated public facilities in the North and South during the 1870's and early 1880’s. Second, it had an immediate and profound effect on national and state politics as they related to the Negro. By denying Congress power to protect the Negro’s rights to equal treatment, the Supreme Court wiped the issue of civil rights from the Republican party’s agenda of national responsibility. At the same time, those southern political leaders who saw anti-Negro politics as the most promising avenue to power could now rally the “poor whites” to the banner of segregation.

If the Supreme Court had stopped with the Civil Rights Cases of 1883, the situation of Negroes would have been bad but not impossible. Even in the South, there was no immediate imposition of segregation in public facilities. During the late 1880’s, Negroes could be found sharing places with whites in many southern restaurants, streetcars, and theatres. But increasingly, Democratic and Populist politicians found the Negro an irresistible target. As Solicitor General Phillips had warned the Supreme Court, what had been tolerated as the “fact” of discrimination was now being translated into “doctrine”: between 1887 and 1891, eight southern states passed laws requiring railroads to separate all white and Negro passengers. The Supreme Court upheld these laws in the 1896 case of Plessy v. Ferguson . Then in the Berea College case of 1906, it upheld laws forbidding private schools to educate Negro and white children together. Both decisions aroused Harlan’s bitter dissent. In the next fifteen or twenty years, the chalk line of Jim Crow was drawn across virtually every area of public contact in the South.

Today, as this line is slowly and painfully being erased, we may do well to reflect on what might have been in the South if the Civil Rights Act of 1875 had been upheld, in whole or in part. Perhaps everything would have been the same. Perhaps forces at work between 1883 and 1940 were too powerful for a Supreme Court to hold in check. Perhaps “Sumner’s law” was greatly premature. Yet it is difficult to believe that total, state-enforced segregation was inevitable in the South after the 1880’s. If in these decades the Supreme Court had taken the same laissez-faire attitude toward race relations as it took toward economic affairs, voluntary integration would have survived as a counter-tradition to Jim Crow and might have made the transition of the 1950’s less painful than it was. At the very least, one cannot help thinking that Harlan was a better sociologist than his colleagues and a better southerner than the “irreconcilables.” American constitutional history has a richer ring to it because of the protest that John Marshall Harlan finally put down on paper from Roger Taney’s inkwell in 1883.