Capitol Men

by Philip Dray

  The gist of the court's ruling, handed down on October 15, 1883, was that Congress possessed no constitutional authority to enforce equal rights in public accommodations. "Sumner's Law," so nobly intended, so ardently fought for, was after less than a decade of existence about to be lowered ignominiously into its grave.

  It would, however, receive an eloquent send-off. The lone dissent in the case came from the pen of Justice John Harlan, "the Great Dissenter," as he would later be known, and it was his brief—far more than Bradley's—that would achieve immortality. Coupled with Harlan's eloquent objection to the majority in Plessy v. Ferguson, the Louisiana railroad case that in 1896 established the doctrine of "separate but equal," the writings sound a powerful intellectual protest to the Supreme Court's wayward drift in the post-Reconstruction era.

  A son of Kentucky, John Harlan had grown up in a family that opposed secession but also looked disapprovingly on abolition, fearing that an instantaneous freeing of the slaves would rupture Southern society. The Harlans voiced support for African colonization schemes, quietly manumitted some of their own slaves, and held fast to the notion that the states should be left to deal with the issue. But in the war John Harlan served with a Union regiment and by the late 1860s had joined the Republican Party, for he accepted the Reconstruction amendments and was offended by the belligerence of "the irreconcilables," the Kentucky Democrats who refused to acknowledge the changes the war had brought. President Hayes appointed Harlan to the Supreme Court in 1877.

  Deeply devout, the justice came to view slavery as "the most perfect despotism that ever existed on this earth," and the ascent of black people from bondage to citizenship as divinely informed, a special destiny the United States had been particularly suited to fulfill. "In Harlan's imagination, the Revolutionary War became a prototype for the Civil War, according to one biographer. "With the help of God, Americans had first overthrown the hierarchy of monarchy and nobility, then they overthrew the hierarchy of race."

  JUSTICE JOHN HARLAN

  Harlan's wife, Malvina, who was known to host "race elevation" classes for blacks in their home, played a role in the writing of his dissent in Civil Rights Cases. Mallie, as she was known, saw that her husband was having a difficult time collecting his thoughts. As his would be the only dissent in the case, he was under extreme pressure and was at first unable to commit any ideas to paper. "Many times he would get up in the middle of the night, in order to jot down some thought or paragraph which he feared might elude him in the morning," she later explained. Watching him struggle, she remembered Justice Taney's inkstand.

  Her husband had long had a keen interest in antiquities, especially ones with historical significance. When he first joined the Supreme Court, he expressed curiosity to a court officer about an old inkstand that had once belonged to Justice Roger B. Taney, which, it was said, he had used while writing the infamous Dred Scott decision. The officer insisted that Harlan help himself to the inkstand. Harlan gratefully brought home this piece of American history, one he thought "a great treasure." A short time later, however, the Harlans met the wife of the Ohio senator George H. Pendleton, who happened to be Taney's niece. When she learned of the memento Harlan possessed, she declared she would like to have it as a souvenir of her uncle's career—Justice Taney had died in 1864—and Harlan, ever the Southern gentleman, graciously agreed, saying he would send her the inkstand the next day. Mallie, however, knowing that her husband was being polite and that the inkstand actually meant a lot to him, hid it. Harlan looked high and low, but, unable to find the item, ultimately wrote to Mrs. Pendelton and apologized, saying that it had apparently gone missing.

  Over several years, Harlan forgot about the antique, but Mallie did not, and when her husband became stalled on his dissent in Civil Rights Cases, she polished the old inkstand, filled it, and took away all the others from his study. One Sunday noontime after he returned from church, she mentioned that a surprise awaited him upstairs by his writing desk. He went up to the room and, after a minute's silence, Mallie heard the scratch of his pen. "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 the antebellum days, seemed, that morning, to act like magic in clarifying my husband's thoughts in regard to the law that had been intended ... 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 the dissent."

  Whether it was the inkstand that inspired Harlan or not, his prose in the dissent was fired with indignation at what he believed was the majority's misreading of Reconstruction. "Constitutional provisions adopted in the interests of liberty, and for the purpose of securing, through national legislation ... rights inhering in a state of freedom, and belonging to American citizenship," Harlan alleged, "have been so construed as to defeat the ends the people desired to accomplish." He could not "resist the conclusion that the substance and spirit of the recent amendments of the Constitution have been sacrificed by a subtle and ingenious verbal criticism" and that the court had willfully ignored the framers' intentions. "It is not the words of the law but the internal sense of it that makes the law," he cautioned. "The letter of the law is the body; the sense and reason of the law is the soul."

  As had Charles Sumner, Robert Brown Elliott, and others before him, Harlan pointed out that certain pre-Civil War statutes had demonstrated unequivocally Congress's ability to make laws affecting individuals. Under the Fugitive Slave Law of 1850, Harlan reminded the court, "the Constitution recognized the master's right of property in his fugitive slave and ... the right of seizing and recovering him, regardless of any state law, or regulation, or local custom whatsoever." Not only did Congress pass such a law, but "the fair implication was that the national government was clothed with appropriate authority ... to enforce it." To deny Congress the right to guard and protect the privileges and immunities gained by the Reconstruction amendments, Harlan emphasized,

  would lead to this anomalous result: that whereas, prior to the amendments, Congress, with the sanction of this court, passed the most stringent laws—operating directly and primarily upon states and their officers and agents, as well as upon individuals—in vindication of slavery and the right of the master, it may not now, by legislation of a like primary and direct character, guard, protect, and secure the freedom established, and the most essential right of the citizenship granted, by the constitutional amendments ... I insist that the national legislature may, without transcending the limits of the Constitution, do for human liberty and the fundamental rights of American citizenship, what it did, with the sanction of this court, for the protection of slavery and the rights of the masters of fugitive slaves.

  While he agreed that the Civil Rights Act did not reach the social choices individual citizens made, he believed strongly that because businesses such as hotels, railroads, and theaters were either licensed or authorized to function by the state, they could be subject to federal laws. Only six years earlier, in Munn v. Illinois, the court had found that when one devotes "property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has created." Thus, railroads and steamboats that used public thoroughfares, and hotels and theaters whose operations were publicly licensed, Harlan insisted, could be expected to treat all citizens equally under the law.

  He was also troubled by the majority's position that race discrimination could not be considered a badge of slavery. One of Harlan's chief fears, which he would amplify in Plessy, was that black citizens, stigmatized by having been slaves, would become a peasant class condemned to occupy permanently a lower tier of American society. Recalling that the Civil Rights Act of 1866, building on the Thirteenth Amendment, had expressly countered the infamous Southern Black Codes, he observed that since slavery as an
institution "rested wholly upon the inferiority, as a race, of those held in bondage, their freedom necessarily involved immunity from, and protection against, all discrimination against them, because of their race."

  As for the issue of "social equality" so often raised, Harlan was clear that

  the rights which Congress, by the act of 1875, endeavored to secure and protect are legal, not social rights. The right ... of a colored citizen to use the accommodations of a public highway, upon the same terms as are permitted to white citizens, is no more a social right than his right, under the law, to use the public streets of a city or a town, or a turnpike road, or a public market, or a post office, or his right to sit in a public building with others, of whatever race, for the purpose of hearing the political questions of the day discussed. Scarcely a day passes without our seeing in this court-room citizens of the white and black races sitting side by side, watching the progress of our business. It would never occur to anyone that the presence of a colored citizen in a courthouse, or courtroom, was an invasion of the social rights of white persons.

  Addressing the core of Bradley's opinion, he concluded, "My brethren say that when a man has emerged from slavery ... there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws ... It is, I submit, scarcely just to say that the colored race has been the special favorite of the laws ... The one underlying purpose of congressional legislation has been to enable the black race to take the rank of citizens, and to secure the enjoyment of privileges belonging, under the law, to them as a component part of the people for whose welfare and happiness government is ordained."

  The majority opinion in Civil Rights Cases was a regrettable one, as flawed in its reasoning as the Taney court's decision in Dred Scott. It was, however, a fair indicator of the nation's prevailing mood, so utterly in sync with public opinion that it failed to produce even a sliver of the reaction that had greeted Judge Taney's ruling a generation before. Harlan's dissent, of course, was widely published and commented upon. Frederick Douglass assured the author that it "should be scattered like the leaves of Autumn over the whole country, and be seen, read and pondered upon by every citizen of this country." Douglass consoled Harlan that the majority's ruling was simply "one more shocking development of that moral weakness in high places which has attended the conflict between the spirit of liberty and the spirit of slavery from the beginning" and predicted "that it will be so regarded by after-coming generations."

  If "Sumner's Law" had been "the capstone of the reconstructed republic," the fullest expression of "the nation's equalitarian aspirations," its rejection was equally symbolic, a final, painful reversal that, along with other judicial setbacks, revealed the nation's inability to ensure civil or voting rights. This was partly due to choices made by the Supreme Court, in several instances, to creatively challenge the new constitutional amendments or read them not for their inherent meaning but for those technicalities that might be exploited as weaknesses. Perhaps the amendments could have been better worded, made more specific and assertive, although Justice Harlan was probably right in thinking that the fault was not technical, but lay in the majority's intellectual reluctance to see in the amendments and in civil rights legislation the main purpose of the Civil War—the end to chattel slavery and the reunion of the nation based on the concepts of national citizenship and equal rights.

  The nation did achieve reconciliation in the postwar years but partly by agreeing to sacrifice once-important demands for equality and racial justice. It showed itself unwilling to follow through on the promise that black citizens would be integrated into American society. Worse, it acted increasingly, and with uncommon determination, to ensure that such a transformation did not occur.

  Chapter 15

  "THE NEGROES' FAREWELL"

  "DEMOCRACY HAS WON a great victory unparalleled," Benjamin Tillman, the newly elected governor of South Carolina, declared in his inaugural address on December 4, 1890. "The triumph of Democracy and white supremacy over mongrelism and anarchy is most complete." A white man's government in South Carolina was now secure, but Tillman and his followers had begun to eye another objective: a new state constitutional convention that would give redemption a permanent constitutional grounding, in large part by obliterating the black franchise.

  Doctoring the constitution had long been a pet ambition of the state's conservatives. They had bridled under the "Radical Rag"—the "Black and Tan" constitution that had emerged from "the Crow Congress" at the Charleston Club House in 1868, and they still felt humiliated and resentful that the Reconstruction Acts had forced it upon them. And while the "eight box law" and other measures had diminished black voting in the years since 1878, there remained moderate Democrats in the state government, heirs to the views of Wade Hampton, and more than ten thousand blacks still on the voting rolls.

  Rectifying this situation was a priority. The retooled constitution would ensure that black politicians like Robert Smalls, Robert Brown Elliott, and Joseph Rainey would never again exploit their numerical superiority, alone or in coalition with moderate whites. Tillman had given considerable thought to how this might be accomplished without defying the U.S. Constitution, although concern for appearances and possible intervention from Washington kept him from doing anything about it immediately; by 1894, however, Tillman's loyalists far outnumbered the state's more mainstream Democrats, and he had enough influence in the legislature to win a referendum for a constitutional convention.

  The 1894 election was among the nastiest in state history, with Tillman and "his white supremacy howlers" using voting fraud freely, against whites as well as blacks. The offenses were blatant and widespread, but because Tillman's forces controlled the courts and the legislature, there was little purpose in contesting what had occurred. When the convention met the following year, Robert Smalls and the few other black delegates who attended were so much in the minority, they were described by one observer as "inert and perspiring at every pore." Smalls and his colleagues, fearing the permanent disenfranchisement that the Tillman forces had in mind but painfully aware of their own isolation, attempted to reach over the heads of their fellow delegates and raise a national alarm by writing an appeal that was published in the New York World. They pointed out that Tillman's rationale for preventing "black rule" was exceedingly paranoid and not historically accurate; even at the height of Reconstruction in 1868, Smalls and the others noted, South Carolina blacks had shared power with whites—indeed, whites had always held the highest positions of authority in the state. But the plea for help from South Carolina received no significant national response.

  Not that there was much surprise in that. Even the state's onetime Republican white knight, Daniel Chamberlain, had long since given up on the cause of the black ballot. Resentful of his own mistreatment at the hands of the Republican Party, which had brought Reconstruction into being and then abandoned it, and bothered by poor health, Chamberlain had succumbed to a deepening cynicism on race relations and the South. "The only course for reasonable and patriotic men is to recognize the facts as they exist, and to deal with the situation according to its nature and causes," he wrote in the Yale Review, counseling that a patient process of education was necessary to draw black Americans fully into society's current. "The foremost fact is the ignorance and inexperience of the colored race. From that single, indisputable fact has come the determination of the white race at the South to suppress the vote of the colored race ... To change this situation ... requires the removal of its causes." He asked, rhetorically, who deserved blame for the South's rejection of equal rights and its embrace of the Ku Klux Klan. "The answer must be, to those who devised and put in operation the Congressional scheme of reconstruction, to their unspeakable folly, their blind party greed, their insensate attempt to reverse the laws which control human society."

  BOOKER T. WASHINGTON

  By calling for "understanding" of the Southern si
tuation and an end to the demand that Congress intervene there, Chamberlain anticipated the ideas soon expressed by Booker T. Washington, the ex-slave who had become the head of Tuskegee Institute and a leading spokesman for his race. In a famous address at the Cotton States and International Exposition in Atlanta in 1895, Washington emphasized that black Americans should focus on practical goals, suspending their agitation for new laws and protections. Blacks should accept their role as laborers and resolve to make their way up society's ladder slowly, winning the respect of whites through hard work and the attainment of useful skills. He also advocated that they remain in their Southern homeland. "Cast down your bucket where you are," Washington exhorted; the South was hospitable to black people if they would only relinquish their constant grievances for rights for which they were unprepared. "No race," he said, "can prosper till it learns that there is as much dignity in tilling a field as in writing a poem ... The opportunity to earn a dollar in a factory just now, is worth infinitely more than the opportunity to spend a dollar in an opera house." He expressed to whites the wish that they in turn would rely on the labor of those they knew so well, who had long been loyal to the region, and eschew that of foreigners, who could potentially be disruptive. As for the coexistence of the two races side by side, Washington offered a compelling analogy: "In all things that are purely social we can be as separate as the fingers, yet one as the hand in all things essential to mutual progress." His speech, known as "The Atlanta Compromise," was hugely popular and immediately enhanced the educator's national status. With its seamless solution to the nation's vexing racial issues, it became, in its time, the best-known public address given by an African American.