by Peter Irons
Harlan’s warning fell on deaf ears. Editorial reaction to the Civil Rights Cases lauded the ruling. The Independent, a leading journal, stated that “the Court is clearly right. The question as to the class of rights involved belongs exclusively to the States.” Harper’s Weekly called the decision “another illustration of the singular wisdom of our constitutional system.” The New York Times was equally pleased. “The Court has been serving a useful purpose in thus undoing the work of Congress,” its editors wrote.
justice Harlan was right; another race did “fall under the ban of race discrimination” and appealed to the Court for protection. This time, the race was Oriental, and the discrimination fell on Chinese laundrymen in San Francisco. And this time, in 1886, the Court struck down a law because it violated the Equal Protection Clause of the Fourteenth Amendment. Perhaps his colleagues had read Harlan’s dissent in the Civil Rights Cases and found it convincing. A more likely explanation for the Court’s ruling in Yick Wo v. Hopkins is that there was clearly “state action” behind the discrimination, and no good reason for treating Chinese laundrymen differently from their Caucasian competitors.
Who was Yick Wo, and how did his case wind up in the Supreme Court? The record is sparse, because most documents in the case were burned in the fires that followed the San Francisco earthquake of 1906. We do know that Yick Wo was born in China, came to California in 1861, and operated a laundry in downtown San Francisco until the city’s fire marshal (a man named Hopkins) denied his application to renew his license in 1885. Five years earlier, the city’s board of supervisors had passed an ordinance making it unlawful to operate a laundry “without having first obtained the consent of the board of supervisors,” unless the laundry “be located in a building constructed either of brick or stone.” Of some 320 laundries in San Francisco, only ten were housed in brick or stone structures. The rest were in wooden buildings, subject to the licensing power of Fire Marshal Hopkins.
More than two hundred Chinese laundrymen, including Yick Wo, applied to Hopkins for licenses, which required a prior safety inspection. Hopkins turned down every Chinese applicant, but he granted licenses to all but one of eighty Caucasians; the sole exception was Mary Meagles. (Because almost every non-Chinese laundry operator was either French or Belgian, we can speculate that Mrs. Meagles was handicapped by either her gender or her Irish name). At any rate, Yick Wo and another Chinese laundryman, Wo Lee, refused to obey the order to close down their laundries and wound up in jail, unwilling to pay their fines after being convicted of violating the city ordinance.
Justice Stanley Matthews, who attracted little notice during his eight-year tenure, wrote for a unanimous Court in the Yick Wo case. Reviewing the record, Matthews found that “the ordinances in actual operation” showed their application to Chinese laundrymen “with a mind so unequal and oppressive as to amount to a practical denial” of the “broad and benign provisions” of the Fourteenth Amendment. “Though the law itself be fair on its face and impartial in appearance,” he continued, “if it is applied and administered by public authority with an evil eye and unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.”
Unlike the Civil Rights Cases, the Yick Wo decision passed almost without notice; the Court’s most noted historian, Charles Warren of Harvard, relegated the case to a footnote in his two volume tome. The facts of the case suggests some reasons for its obscurity. Unlike blacks, who numbered some five million at. the time, fewer than 100,000 Chinese lived in the United States, the vast majority in California. The institution of slavery had provoked a bloody Civil War, while the Chinese—although feared and hated by many Californians—were ignored by most people outside the West Coast. And the Supreme Court disposed of the case without dissent, slapping the hands of San Francisco officials but not striking down any federal statutes.
The Yick Wo decision stands out as an exception to the Court’s narrow reading of the Fourteenth Amendment in the last decades of the nineteenth century. It could have—and should have—served as “controlling” precedent in later discrimination cases, such as Plessy v. Ferguson, second only to Dred Scott in Supreme Court infamy. But Yick Wo flashed for a moment, like a shooting star, and quickly disappeared from sight.
As the Civil War faded from memory, and with the demise of Reconstruction in 1877, the white population outside the South turned its attention from the plight of blacks to the delights of prosperity, fueled by the rapid growth of industry. John D. Rockefeller, who started as a bookkeeper in Cleveland, formed the Standard Oil Company of Ohio in 1870; by the century’s end, his fortune exceeded $200 million. Andrew Carnegie, a telegraph clerk at seventeen, built his first steel plant in 1872 and sold the U.S. Steel Corporation two J.P. Morgan in 1900 for $492 million. The first railroad to link the East and West was completed in 1869; by the 1890s, a vast network of railroads—largely controlled by J.P. Morgan—shipped goods and carried passengers to every state. More than a million immigrants streamed through American ports every year and spread across the country, filling jobs in factories, mines, forests, and farms. This rapid growth exacted a heavy toll from the workers who labored for long hours and little pay; in 1889, 22,000 railroad workers were killed or injured. Other workers—whose language or color stirred up prejudice-paid for their jobs with their lives; in 1885 a mob of whites attacked five hundred Chinese miners in Rock Springs, Wyoming, killing twenty-eight and chasing the rest out of town.
Beginning with the election of Grover Cleveland in 1884, Democrats and Republicans traded the presidency every four years until the nineteenth century ended. The issue of race faded from national politics—although it dominated political campaigns in the South—and presidential elections turned on economic issues. Not surprisingly, Supreme Court nominations during the “Gilded Age” in American history went to men, regardless of party, whose legal experience and judicial philosophy favored the interests of business and industry. Cleveland, the first Democrat in the White House since the Civil War, named two justices during his first presidential term, which began in 1885. His first appointment, after the death of Justice William Woods in 1887, went to Lucius Q.C. Lamar of Mississippi, a Confederate colonel who later served in the federal Congress and in Cleveland’s cabinet as interior secretary. Lamar served on the Court for just five years after his narrow confirmation in 1888; although John F. Kennedy included Lamar in his book, Profiles; in Courage, he displayed little courage on the bench, voting consistently against the rights of blacks.
Two months after Lamar confirmation, Chief Justice Morrison Waite died after fourteen years of service. Cleveland considered several candidates, and finally chose a lawyer described by one newspaper as “the most obscure man ever nominated as Chief Justice.” Melville Fuller, whose formal legal education consisted of six months at Harvard Law School, had been an active Democrat in Illinois; he supported Stephen Douglas over Abraham Lincoln for senator and president, he backed a state constitutional amendment to deny voting rights to blacks, and he denounced President Lincoln’s Emancipation Proclamation. His busy and lucrative practice in Chicago served business clients, and he was a close friend of President Cleveland. The Senate confirmed Fuller in 1888 by a vote of forty-one to twenty, over the objections of Republicans who questioned his Civil War loyalties. During his twenty-two years as Chief Justice, the longest tenure after Marshall and Taney, Fuller’s loyalty to corporate interests was never questioned. As one biographer noted, “the Fuller Court would go down in history as the incarnation of free enterprise, of the equation of laissez-faire with constitutionally protected rights.”
Grover Cleveland won election in 1884 by the razor-thin margin of 23,000 votes; four years later he defeated Republican Benjamin Harrison by 100,000 votes (out of eleven million ballots), but lost the presidency by sixty-five electoral vo
tes. An Indiana lawyer, Union army general, and former congressman, Harrison served one undistinguished term before Cleveland wrested his job back in 1892. Cautious and conservative, Harrison added four men to the Supreme Court, all conservative corporate lawyers. His first nomination, to replace Justice Stanley Matthews in 1889, went to David Brewer of Kansas, who represented railroad and banking clients before serving on state and federal courts for nineteen years. Brewer joined his uncle, Stephen Field, on the bench and “became the leader of the ultraconservative economic laissez-faire advocates on the Court,” wrote one biographer. He told the Yale graduates of 1891 that the principles of “absolute and eternal justice forbid that any private property” could be “destroyed in the interests of public health, morals, or welfare.” Brewer was saving that the “police powers” of government to protect the people were subservient to the powers of those who controlled property. He assured his privileged audience that “the love of acquirement, mingled with the joy of possession, is the real stimulus to human activity.” No justice ever penned a greater ode to economic avarice.
Justice Samuel Miller died in 1890, after twenty-eight years on the Court, and President Harrison replaced him with Henry B. Brown, a prominent corporate lawyer in Detroit who then served on the federal district bench. Although he proved to be slightly less supportive of laissez-faire doctrine than Brewer, Brown’s fifteen years of service were marked by many “routine” opinions and one, in Plessy v. Ferguson, that was anything but routine. One friendly biographer described Brown as “intelligent, expertly trained, hardworking, and pleasant,” words that could equally describe many of the men who owned slaves before the Civil War and enacted Jim Crow laws after Reconstruction ended. A more critical scholar noted that Brown’s Plessy decision “reflected the era’s racial, social, and legal assumptions” that blacks were inferior to whites. He was, in sum, a typical lawyer of his time.
When another longtime justice, Joseph Bradley, died in 1892 after twenty-two years on the Court, Harrison replaced him with George Shiras, Jr., a Pennsylvania lawyer who represented coal, oil, railroad, iron and steel, and banking interests. Andrew Carnegie urged Harrison to appoint Shiras, who served for eleven years and “could normally be counted aboard the laissez-faire bandwagon of the times.” Harrison’s final nomination placed Howell Jackson of Tennessee in the Court’s “Southern seat,” vacated by Lucius Q. C. Lamar, who died in 1892 after five years on the bench. A former Confederate official and corporate lawyer, Jackson died of tuberculosis in 1895, after less than three years on the Court. During his brief service, Jackson broke with his conservative brethren in just one major case, voting three months before his death to uphold a federal income tax; the majority opinion in this case was overturned in 1913 by the Sixteenth Amendment.
The roster of corporate lawyers on the Court continued to grow after Grover Cleveland returned to the White House in 1893 for a second term. Four months after his inauguration, Justice Samuel Blatchford died, and Cleveland twice attempted to fill the Court’s “New York seat” with conservative New Yorkers. However, the state’s senior senator was feuding with the president over patronage jobs and blocked both nominees. Cleveland responded by depriving New York of its traditional seat and choosing Senator Edward D. White of Louisiana, a Confederate veteran and the first Roman Catholic on the Court since Roger Taney. A successful business lawyer in New Orleans, and briefly a state supreme court judge before his Senate election, White served on the Court for twenty-seven years, the last ten as Chief Justice. White’s tenure on the Court spanned three decades of vocal and often violent conflict-over Jim Crow laws, union organizing, child labor, antitrust regulation, and wartime protest. In virtually every case, he voted for states’ rights over federal power, business over workers, economic concentration over competition, and repression of dissent over free expression. Any “assessment of the rightness or wrongness of his opinions,” one scholar observed, “will probably depend on the views of the observer.” But those who assess White’s opinions can easily see where he stood on the great issues of his time.
With the death of Howell Jackson in 1895, President Cleveland got the chance to choose one more justice. Twice rebuffed in filling the “New York seat,” he turned to that state once more and selected Rufus Peckham, a corporate lawyer who advised such tycoons as Cornelius Vanderbilt, John D. Rockefeller, and Pierpont Morgan. Peckham “would not disappoint them during the fourteen years he served on the Supreme Court,” said one biographer. He wrote his most noted (and notorious) opinion in 1905 in Lochner v. New York, a case testing a state law that limited the working hours of bakers to ten each day and sixty for a week. Peckham fit in perfectly with the Court’s laissez-faire majority; during his fourteen-year tenure, he wrote 303 opinions and dissented in only nine cases.
Presidents Cleveland and Harrison each placed four men on the Supreme Court; most left no mark on constitutional law, and one—Henry Brown—left an enduring stain in the Plessy case. Scholars later ranked seven of this group as “average” justices and one—Edward White—as “near great.” White came that close to the judicial pantheon more because of his lengthy tenure than the quality of his opinions. These justices were not thouroughbreds; they were draft horses, turning out some two hundred opinions every year, most of which dealt with disputes over money. But money was more important to most people, during this period of growing prosperity, than “parchment” rights the Court did not even recognize
18
“Our Constitution Is Color-Blind”
As the nineteenth century neared its end, the “Gilded Age” became tarnished by labor strife and economic depression. The virtual identity of the two major parties on most issues vanished, as Republicans embraced corporate values and Democrats absorbed the “populist” movement that railed against the bankers and railroad tycoons who controlled the economy. American politics became more and more divisive as the elections of 1896 approached. Grover Cleveland and Benjamin Harrison, who fought their election campaigns with kid gloves, both retired from politics and turned their parties over to more combative candidates.
The Republican candidate in 1896, William McKinley of Ohio, campaigned on a platform of “hard money” at home and hard talk abroad. Insurgent movements against Spanish rule in Cuba and the Philippines spurred demands for military intervention to expand the “American empire” around the globe. “We want a foreign market for our surplus products,” McKinley stated. His Democratic opponent, William Jennings Bryan of Nebraska, also ran on the Populist Party ticket; he accused Republicans of nailing workers and farmers to a “cross of gold” and advocated the use of silver to back the currency. Bryan also opposed American “imperialism” and annexation campaigns. Aided by the highest voter turnout of the century (and massive corporate donations), McKinley defeated Bryan and began sixteen years of Republican rule. With Congress, the White House, and the Supreme Court under firm corporate control, groups like blacks, workers, and women had little voice in government. As hardship mounted, grassroots protest movements turned from electoral politics to direct action. Strikes, marches, and even bombs rattled the nerves of those with power and property. Amid this growing strife, the Court remained a bastion of conservatism, earning this banquet toast from a New York banker in 1895: “I give you, gentlemen, the Supreme Court of the United States—guardian of the dollar, defender of private property, enemy of spoliation, sheet anchor of the Republic.” The Court was eager to strike down—as violations of the Fourteenth Amendment—laws that interfered with the “liberty” of businessmen to dictate the wages, hours, and working conditions of their employees. But the justices were not eager to provide the same “liberty” rights to ordinary people, especially blacks.
Confronted with mounting legal challenges to the “Jim Crow” laws that southern lawmakers had passed in the 1890s to enforce racial segregation, the Supreme Court decided the most important of these cases in Plessy v. Ferguson, which arrived in Washing
ton after a four-year journey from Louisiana. The case began on June 7, 1892, when Homer Adolph Plessy entered the New Orleans station of the East Louisiana Railway and bought a first-class ticket to Covington, Louisiana, a trip of about fifty miles around Lake Pontchartrain. Most passengers wanted to arrive at their destination for pleasure or business. Plessy, however, took no pleasure in his trip and had no particular business in Covington. What he wanted—and expected—was to be arrested for violating the 1890 state law requiring that “no person or persons shall be permitted to occupy seats in coaches, other than the ones assigned to them on account of the race they belong to.” The law required that railroads provide “equal but separate” facilities for those of different races; however, it did not define “race” and left to conductors the job of assigning passengers to the proper cars.
Plessy had almost certainly arranged his arrest before he bought his ticket, although perhaps not the way it was carried out. According to the Supreme Court’s later statement of facts, Plessy “entered a passenger train, and took possession of a vacant seat in a coach where passengers of the white race were accommodated.” The conductor then ordered him “to vacate said coach” and move to one “for persons not of the white race.” When Plessy refused to move, “he was, with the aid of a police officer, forcibly ejected from said coach and hurried off to and imprisoned in the parish jail of New Orleans.” His stay in jail was brief, and Plessy was released after arraignment in the local recorder’s court.
