August 1962 | Volume 13, Issue 5
Ride-ins and sit-ins are not new tactics of the Negro. They were first tried back in the 1870’s, and with great success. But that time High Court decisions were very different
It began one day early in January when a Negro named Robert Fox boarded a streetcar in Louisville, Kentucky, dropped his coin into the fare box, and sat down in the white section of the car. Ordered to move, he refused, and the driver threw him off the car. Shortly after, Fox filed a charge of assault and battery against the streetcar company in the federal district court, claiming that separate seating policies were illegal and the driver’s actions were therefore improper. The district judge instructed the jury that under federal law common carriers must serve all passengers equally without regard to race. So instructed, the jury found the company rules to be invalid and awarded damages of fifteen dollars (plus $72.80 in legal costs) to Mr. Fox.
Immediately there was sharp criticism of the Fox decision from the city and state administrations, both Democratic; the company defied the court’s ruling and continued segregated seating. After several meetings with local federal officials and white attorneys co-operating with them, Louisville Negro leaders decided to launch a full-scale “ride-in.” At 7 P.M. on May 12, a young Negro boy boarded a streetcar near the Willard Hotel, walked past the driver, and took a seat among the white passengers. The driver, under new company regulations, did not attempt to throw him off but simply stopped the car, lit a cigar, and refused to proceed until the Negro moved to “his place.” While the governor, the Louisville chief of police, and other prominent citizens looked on from the sidewalks, a large crowd which included an increasingly noisy mob of jeering white teen-agers gathered around the streetcar.
Before long, there were shouts of “Put him out!” “Hit him!” “Kick him!” “Hang him!” Several white youths climbed into the car and began yelling insults in the face of the young Negro rider. He refused to answer—or to move. The youths dragged him from his seat, pulled him off the car, and began to beat him. Only when the Negro started to defend himself did the city police intervene: they arrested him for disturbing the peace and took him to jail.
This time the trial was held in Louisville city court, not the federal court. The magistrate ruled that street-car companies were not under any obligation to treat Negroes exactly as they treated whites, and that any federal measures purporting to create such obligations would be “clearly invalid” under the constitutions of Kentucky and the United States. The defendant was fined, and the judge delivered a warning to Louisville Negroes that further ride-ins would be punished.
But the ride-in campaign was not halted that easily. In the following days, streetcar after streetcar was entered by Negroes who took seats in the white section. Now the drivers got off the cars entirely. On several occasions, the Negro riders drove the cars themselves, to the sound of cheers from Negro spectators. Then violence erupted. Bands of white youths and men began to throw Negro riders off the cars; windows were broken, cars were overturned, and for a time a general race riot threatened. Moderate Kentucky newspapers and many community leaders deplored the fighting; the Republican candidate for governor denounced the streetcar company’s segregation policies and blamed the violence on Democratic encouragement of white extremists.
By this time, newspapers across the country were carrying reports of the conflict, and many editorials denounced the seating regulations. In Louisville, federal marshals and the United States attorney backed the rights of the Negro riders and stated that federal court action would be taken if necessary. There were even rumors that the President might send troops.
Under these threats, the streetcar company capitulated. Soon, all the city transit companies declared that “it was useless to try to resist or evade the enforcement by the United States authorities of the claim of Negroes to ride in the cars.” To “avoid serious collisions,” the company would thereafter allow all passengers to sit where they chose. Although a few disturbances took place in the following months, and some white intransigents boycotted the streetcars, mixed seating became a common practice. The Kentucky press soon pointed with pride to the spirit of conciliation and harmony which prevailed in travel facilities within the city, calling it a model for good race relations. Never again would Louisville streetcars be segregated.
The event may have the familiar ring of recent history, but it is not, for it occurred ninety-one years ago, in 1871. The streetcars were horse-drawn. The President who considered ordering troops to Louisville was ex-General Grant, not ex-General Eisenhower. The Republican gubernatorial candidate who supported the Negro riders, John Marshall Harlan, was not a post-World War II leader of the G.O.P. but a former slaveholder from one of Kentucky’s oldest and most famous political families. And the “new” Negroes who waged this ride-in were not members of the Congress of Racial Equality and the National Association for the Advancement of Colored People, or followers of Dr. Martin Luther King, but former slaves who were fighting for civil rights in their own time, and with widespread success.
And yet these dramatic sit-ins, ride-ins, and walk-ins of the 1870’s are almost unknown to the American public today. The standard American histories do not mention them, providing only thumbnail references to “bayonet-enforced” racial contacts during Reconstruction. Most commentators view the Negro’s resort to direct action as an invention of the last decade. Clearly, then, it is time that the civil-rights struggle of the 1870’s and 1880’s was rescued from newspaper files and court archives, not only because it is historically important but also because it has compelling relevance for our own era.
Contrary to common assumptions today, no state in the Union during the 1870’s, including those south of the Mason-Dixon line, required separation of whites and Negroes in places of public accommodation. Admission and arrangement policies were up to individual owners. In the North and West, many theatres, hotels, restaurants, and public carriers served Negro patrons without hesitation or discrimination. Some accepted Negroes only in second-class accommodations, such as smoking cars on railroads or balconies in theatres, where they sat among whites who did not have first-class tickets. Other northern and western establishments, especially the more exclusive ones, refused Negro patronage entirely.
The situation was similar in the larger cities of the southern and border states. Many establishments admitted Negroes to second-class facilities. Some gave first-class service to those of privileged social status—government officials, army officers, newspapermen, and clergymen. On the other hand, many places of public accommodation, particularly in the rural areas and smaller cities of the South, were closed to Negroes whatever their wealth or status.
From 1865 through the early 1880’s, the general trend in the nation was toward wider acceptance of Negro patronage. The federal Civil Rights Act of 1866, with its guarantee to Negroes of “equal benefit of the laws,” had set off a flurry of enforcement suits—for denying berths to Negroes on a Washington-New York train; for refusing to sell theatre tickets to Negroes in Boston; and for barring Negro women from the waiting rooms and parlor cars of railroads in Virginia, Illinois, and California. Ratification of the Fourteenth Amendment in 1868 had spurred more challenges. Three northern states, and two southern states under Reconstruction regimes, passed laws making it a crime for owners of public-accommodation businesses to discriminate. Most state and federal court rulings on these laws between 1865 and 1880 held in favor of Negro rights, and the rulings built up a steady pressure on owners to relax racial bars.
Nevertheless, instances of exclusion and segregation continued throughout the 1870’s. To settle the issue once and for all (thereby reaping the lasting appreciation of the Negro voters), congressional Republicans led by Senator Charles Sumner pressed for a federal statute making discrimination in public accommodations a crime. Democrats and conservative Republicans warned in the congressional debates that such a law would trespass on the reserved powers of the states and reminded the Sumner supporters that recent Supreme Court decisions had taken a narrow view of federal power under the Civil War amendments.
After a series of legislative compromises, however, Sumner’s forces were able to enact the statute; on March 1, 1875, “An Act to Protect all Citizens in their Civil and Legal Rights” went into effect. “It is essential to just government,” the preamble stated, that the nation “recognize the equality of all men before the law, and … it is the duty of government in its dealings with the people to mete out equal and exact justice to all, of whatever nativity, race, color, or persuasion, religious or political …”
Section 1 of the act declared that “All persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations … 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 or color. …” Section 2 provided that any person violating the act could be sued in federal district court for a penalty of $500, could be fined $500 to $1,000, or could be imprisoned from thirty days to one year. (A separate section forbade racial discrimination in the selection of juries.)
Reaction to the law was swift. Two Negro men were admitted to the dress circle of Macauley’s Theatre in Louisville and sat through the performance without incident. In Washington, Negroes were served for the first time at the bar of the Willard Hotel, and a Negro broke the color line when he was seated at McVicker’s Theatre in Chicago. But in other instances, Negroes were rejected despite “Sumner’s law.” Several hotels in Chattanooga turned in their licenses, became private boardinghouses, and accepted whites only. Restaurants and barber shops in Richmond turned away Negro customers.
Suits challenging refusals were filed en masse throughout the country. Perhaps a hundred were decided in the federal district courts during the late 1870’s and early 1880’s. Federal judges in Pennsylvania, Texas, Maryland, and Kentucky, among others, held the law to be constitutional and ruled in favor of Negro complainants. In North Carolina, New Jersey, and California, however, district judges held the law invalid. And when other courts in New York, Tennessee, Missouri, and Kansas put the issue to the federal circuit judges, the judges divided on the question, and the matter was certified to the United States Supreme Court.
But the Supreme Court did not exactly rush to make its ruling. Though two cases testing the 1875 act reached it in 1876 and a third in 1877, the Justices simply held them on their docket. In 1879, the Attorney General filed a brief defending the constitutionality of the law, but still the Court reached no decisions. In 1880, three additional cases were filed, but two years elapsed before the Solicitor General presented a fresh brief supporting the statute. It was not until late in 1883 that the Supreme Court passed upon the 1875 act, in what became famous as the Civil Rights Cases ruling. True, the Court was badly behind in its work in this period, but clearly the Justices chose to let the civil-rights cases “ripen” for almost eight years.
When they finally came to grips with the issue, six separate test suits were involved. The most celebrated had arisen in New York City in November of 1879. Edwin Booth, the famous tragedian and brother of John Wilkes Booth, had opened a special Thanksgiving week engagement at the Grand Opera House. After playing Hamlet, Othello , and Richelieu to packed houses, he was scheduled to perform Victor Hugo’s Ruy Blas at the Saturday matinee on November 22.
One person who had decided to see Booth that Saturday was William R. Davis, Jr., who was later described in the press as a tall, handsome, and well-spoken Negro of twenty-six. He was the business agent of the Progressive-American , a Negro weekly published in New York City. At 10 o’clock Saturday morning, Davis’ girl friend (”a bright octoroon, almost white,” as the press put it), purchased two reserved seats at the box office of the Grand Opera House. At 1:30 P.M. , Davis and his lady presented themselves at the theatre, only to be told by the doorkeeper, Samuel Singleton, that “these tickets are no good.” If he would step out to the box office, Singleton told Davis, his money would be refunded.
It is unlikely that Davis was surprised by Singleton’s action, for this was not the first time he had encountered such difficulties. Shortly after the passage of the 1875 act, Davis had been refused a ticket to the dress circle of Booth’s Theatre in New York. He had sworn out a warrant against the ticket seller, but the failure of his witnesses to appear at the grand jury proceedings had led to a dismissal of the complaint. This earlier episode, as well as Davis’ activity as a Negro journalist, made it probable that this appearance at the Opera House in 1879 was a deliberate test of the management’s discriminatory policies.
Though Davis walked out of the lobby at Singleton’s request, he did not turn in his tickets for a refund. Instead, he summoned a young white boy standing near the theatre, gave him a dollar (plus a dime for his trouble), and had him purchase two more tickets. When Davis and his companion presented these to Singleton, only the lady was allowed to pass. Again Davis was told that his ticket was “no good.” When he now refused to move out of the doorway, Singleton called a policeman and asked that Davis be escorted off the theatre property. The officer told Davis that the Messrs. Poole and Donnelly, the managers of the Opera House, did not admit colored persons. “Perhaps the managers do not,” Davis retorted, “but the laws of the country [do].”
The following Monday, November 24, Davis filed a criminal complaint; on December 9, this time with witnesses in abundance, Singleton was indicted in what the press described as the first criminal proceeding under the 1875 act to go to trial in New York. When the case opened on January 14, 1880, Singleton’s counsel argued that the 1875 law was unconstitutional. “It interferes,” he said, “with the right of the State of New York to provide the means under which citizens of the State have the power to control and protect their rights in respect to their private property.” The assistant United States attorney replied that such a conception of states’ rights had been “exploded and superseded long ago.” It was unthinkable, he declared, that “the United States could not extend to one citizen of New York a right which the State itself gave to others of its citizens—the right of admission to places of public amusement.”
The presiding judge decided to take the constitutional challenge under advisement and referred it to the circuit court, for consideration at its February term. This left the decision up to Justice Samuel Blatchford of the Supreme Court, who was assigned to the circuit court for New York, and District Judge William Choate. The two judges reached opposite conclusions and certified the question to the United States Supreme Court.
Davis’ case, under the title of United States v. Singleton , reached the Supreme Court in 1880. Already lodged on the Court’s docket were four similar criminal prosecutions under the act of 1875. U.S. v. Stanley involved the refusal of Murray Stanley in 1875 to serve a meal at his hotel in Topeka, Kansas, to a Negro, Bird Gee. U.S. v. Nichols presented the refusal in 1876 of Samuel Nichols, owner of the Nichols House in Jefferson City, Missouri, to accept a Negro named W. H. R. Agee as a guest. U.S. v. Ryan involved the conduct of Michael Ryan, doorkeeper of Maguire’s Theatre in San Francisco, in denying a Negro named George M. Tyler entry to the dress circle on January 4, 1876. In U.S. v. Hamilton , James Hamilton, a conductor on the Nashville, Chattanooga, and St. Louis Railroad, had on April 21, 1879, denied a Negro woman with a firstclass ticket access to the ladies’ car.
There was a fifth case, with a somewhat different setting. On the evening of May 22, 1879, Mrs. Sallie J. Robinson, a twenty-eight-year-old Negro, purchased two first-class tickets at Grand Junction, Tennessee, for a trip to Lynchburg, Virginia, on the Memphis and Charleston Railroad. Shortly after midnight she and her nephew, Joseph C. Robinson, described as a young Negro “of light complexion, light hair, and light blue eyes,” boarded the train and started into the parlor car. The conductor, C. W. Reagin, held Mrs. Robinson back (“bruising her arm and jerking her roughly around,” she alleged) and pushed her into the smoker.
A few minutes later, when Joseph informed the conductor that he was Mrs. Robinson’s nephew and was a Negro, the conductor looked surprised. In that case, he said, they could go into the parlor car at the next stop. The Robinsons finished the ride in the parlor car but filed complaints with the railroad about their treatment and then sued for $500 under the 1875 act. At the trial, Reagin testified that he had thought Joseph to be a white man with a colored woman, and his experience was that such associations were “for illicit purposes.”
Counsel for the Robinsons objected to Reagin’s testimony, on the ground that his actions were based on race and constituted no defense. Admitting the constitutionality of the 1875 law for purposes of the trial, the railroad contended that the action of its conductor did not fall within the statute. The district judge ruled that the motive for excluding persons was the decisive issue under the act: if the jury believed that the conductor had acted because he thought Mrs. Robinson “a prostitute travelling with her paramour,” whether “well or ill-founded” in that assumption, the exclusion was not because of race and the railroad was not liable. The jury found for the railroad, and the Robinsons appealed.
These, with William Davis’ suit against the door-keeper of New York’s Grand Opera House, were the six cases to which the Supreme Court finally turned in 1882. The Justices were presented with a learned and eloquent brief for the United States submitted by Solicitor General Samuel F. Phillips, who reviewed the leading cases, described the history of the Civil War amendments to the Constitution, and stressed the importance to the rights of citizens of equal access to public accommodation. Four times since 1865, Phillips noted, civil-rights legislation had been enacted by a Congress filled with men who had fought in the Civil War and had written the war amendments. These men understood that “every rootlet of slavery has an individual vitality, and, to its minutest hair, should be anxiously followed and plucked up. …” They also knew that if the federal government allowed Negroes to be denied accommodation “by persons who notably were sensitive registers of local public opinion,” then “what upon yesterday was only ‘fact’ will become ‘doctrine’ tomorrow.”
The Supreme Court Justices who considered Phillips’ brief and the six test cases were uncommonly talented, among them being Chief Justice Morrison R. Waite, a man underrated today; Joseph P. Bradley, that Court’s most powerful intellect; and Stephen J. Field, a laissez-faire interpreter of American constitutional law. John Marshall Harlan, the youngest man on the Court, had already started on the course which was to mark him as the most frequent and passionate dissenter in the Gilded Age.
As a whole, the Court might have appeared to be one which would have looked favorably on the 1875 Act. All were Republicans except Justice Field, and he was a Democrat appointed by Abraham Lincoln. All except Justice Harlan, who was the Court’s only southerner, had made their careers primarily in the northern and western states. Without exception, all had supported the Northern cause in the war, and none had any hostility toward Negroes as a class.
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.
Once on the Supreme Court, Harlan could have swung back to a conservative position on civil rights. Instead, he became one of his generation’s most intense and uncompromising defenders of the Negro. Perhaps his was the psychology of the convert who defends his new faith more passionately, even more combatively, than the born believer. Harlan liked to think that he had changed because he knew the South and realized that any relaxation of federal protection of the rights of Negroes would encourage the “white irreconcilables” first to acts of discrimination and then to violence, which would destroy all hope of accommodation between the races.
When Harlan sat down in October of 1883 to write his dissent in the Civil Rights Cases , he hoped to set off a cannon of protest. But he simply could not get his thoughts on paper. He worked late into the night, and even rose from half-sleep to write down ideas that he was afraid would elude him in the morning. “It was a trying time for him,” his wife observed. “In point of years, he was much the youngest man on the Bench; and standing alone, as he did in regard to a decision which the whole nation was anxiously awaiting, he felt that … he must speak not only forcibly but wisely.”
After weeks of drafting and discarding, Harlan seemed to reach a dead end. The dissent would not “write.” It was at this point that Mrs. Harlan contributed a dramatic touch to the history of the Civil Rights Cases .
When the Harlans had moved to Washington in 1877, the Justice had acquired from a collector the inkstand which Chief Justice Roger Taney had used in writing all his opinions. Harlan was fond of showing this to guests and remarking that “it was the very ink-stand from which the infamous Dred Scott opinion was written.” Early in the 1880’s, however, a niece of Taney’s, who was engaged in collecting her uncle’s effects, visited the Harlans. When she saw the inkstand she asked Harlan for it, and the Justice agreed. The next morning Mrs. Harlan, noting her husband’s reluctance to part with his most prized possession, quietly arranged to have the inkstand “lost.” She hid it away, and Harlan was forced to make an embarrassed excuse to Taney’s niece.
Now, on a Sunday morning, probably early in November of 1883, after Harlan had spent a sleepless night working on his dissent, Mallie Harlan remembered the inkstand. While the Justice was at church, she retrieved it from its hiding place, filled it with a fresh supply of ink and pen points, and placed it on the blotter of his desk. When her husband returned from church, she told him, with an air of mystery, that he would find something special in his study. Harlan was overjoyed to recover his symbolic antique. Mrs. Harlan’s gesture was successful, for as she relates: The memory of the historic part that Taney’s inkstand had played in the Dred Scott decision, in temporarily tightening the shackles of slavery upon the negro race in those antebellum days, seemed, that morning, to act like magic in clarifying my husband’s thoughts in regard to the law … intended by Sumner to protect the recently emancipated slaves in the enjoyment of equal ‘civil rights.’ His pen fairly flew on that day and, with the running start he then got, he soon finished his dissent.
How directly the recollection of Dred Scott pervaded Harlan’s dissent is apparent to anyone who reads the opinion. He began by noting that the pre-Civil War Supreme Court had upheld congressional laws forbidding individuals to interfere with recovery of fugitive slaves. To strike down the Act of 1875 meant that “the rights of freedom and American citizenship cannot receive from the Nation that efficient protection which heretofore was unhesitatingly accorded to slavery and the rights of masters.”
Harlan argued that the Civil Rights Act of 1875 was constitutional on any one of several grounds. The Thirteenth Amendment had already been held to guarantee “universal civil freedom”; Harlan stated that barring Negroes from facilities licensed by the state and under legal obligation to serve all persons without discrimination restored a major disability of slavery days and violated that civil freedom. As for the Fourteenth Amendment, its central purpose had been to extend national citizenship to the Negro, reversing the precedent upheld in the Dred Scott decision; its final section gave Congress power to pass appropriate legislation to enforce that affirmative grant as well as to enforce the section barring any state action which might deny liberty or equality. Now, the Supreme Court was deciding what legislation was appropriate and necessary for those purposes, although that decision properly belonged to Congress.
Even under the “State action” clause of the Fourteenth Amendment, Harlan continued, the 1875 act was constitutional; it was well established that “railroad corporations, keepers of inns and managers of places of public accommodation are agents or instrumentalities of the State.” Finally, Harlan attacked the unwillingness of the Court’s majority to uphold the public-carrier section of the act under Congress’ power to regulate interstate trips. That was exactly what was involved in Mrs. Robinson’s case against the Memphis and Charleston Railroad, he reminded his colleagues; it had not been true before that Congress had had to cite the section of the Constitution on which it relied.
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.