Читать книгу The Smart Culture - Robert L. Hayman Jr. - Страница 20

Abolitionists convened in New York City in 1870 to celebrate the passage of the Fifteenth Amendment and to dissolve their various societies. Their work, however, was far from done. They reconstituted their groups as the National Reform League and dedicated their new organization to the struggle against the “social prosecution of men on account of their color.” Of necessity, their chief target was the comprehensive scheme of legal, quasi-legal, and extralegal measures that segregated and subordinated black Americans, a scheme known widely as Jim Crow.

Jim Crow had, as C. Vann Woodward famously put it, a “strange career,” and harbored some contradictions of its own. Racial segregation, after all, had not been the rule in the antebellum South: close contact had been a necessary part of slave-master relations; the fear of slave rebellions had dictated that slave communities be maintained under watchful eyes on the plantations; and the ideology of racial supremacy had mandated the exclusion of black southerners—not merely their separation—from public accommodations, courthouses, and schools. In the North, on the other hand, the influx of white European immigrants in the first quarter of the nineteenth century meant a loss of black job opportunity and, with the eventual spread of universal white suffrage, a concomitant loss of political power. White-initiated segregation then became common in schools and churches; black northerners countered with the creation of formal black religious sects and black schools.

The situation very nearly reversed after the war. In the North, the post-war migration and the elimination of racial restrictions on the franchise meant that the black vote was suddenly critical to electoral success. This created at least a sympathetic political environment for the neo-abolitionist crusade: the result throughout the North was state civil rights legislation formally eliminating racial discrimination, including the racial segregation of public accommodations and schools. Even the miscegenation laws were repealed.²⁰

In the South, the effort to maintain racial hierarchy without the formal restraints of the peculiar institution took one of two forms. In those realms of life in which there had been, and still needed to be, interracial contacts—the great bulk of what might be described as social and economic life—the white South determined to replicate the old hierarchy of the master-slave relationship through devices that made no pretense to equality. Landowners joined together in refusing to sell to the freedmen, offering instead only absurdly exploitative sharecropping schemes. The freedmen were refused jobs and places to live, then jailed for vagrancy and impressed into labor for the same planters who refused to employ them. Such overt discrimination was nonetheless claimed to be beyond the reach of federal constitutional and legislative guarantees: the imposed inequalities were said to be “social.”

In many of those realms of life from which black southerners were previously excluded—the courts, for example, and the schools—the white struggle against equality was eventually lost. So-called legal equality and political equality were explicitly guaranteed by the Reconstruction amendments; but since interracial contacts here were in no sense necessary, the obvious recourse was to segregation, to “separate but equal.” Separate judicial systems and school systems thus became the norm throughout the South; only in New Orleans, in fact, were public schools integrated. Even in South Carolina—where the predominantly black legislature became the first in the nation to offer universal, free public education—the Reconstruction government accepted schools that were segregated by custom.²¹

The two realms, of course, were not mutually exclusive, as the case of public accommodations demonstrates. Such accommodations—inns, theaters, conveyances, and the like—were sometimes said to be “social” and beyond the equality mandate, and at other times were segregated under the doctrine of “separate but equal.” Both arguments, however, were apparently rejected by the Reconstruction Congress: in 1875, it outlawed racial discrimination in public accommodations.

The Civil Rights Cases. The Civil Rights Act of 1875 was the climax of the neo-abolitionist struggle against Jim Crow. The bill had been introduced by Charles Sumner in the summer of 1870; a* originally drafted, it prohibited discrimination in public accommodations, juries, and schools. The bill drifted uncertainly in and out of committee for four years, leaving Sumner to plead from his deathbed in March 1874: “My bill, the civil rights bill—don’t let it fail.” Shortly thereafter, the bill passed the Senate, but the House recessed without action.

Democrats controlled the House of Representatives after the elections of 1874, and the Republicans, in their lame duck session, finally passed the bill. Its managers, however, deleted the schools provision, though not before considering a provision that would have imposed a requirement that separate schools be “equal.” The provision was rejected by opponents and advocates of equality alike. “If we once establish a discrimination of this kind, we know not where it will end,” Congressman James Monroe explained; the freedmen and their advocates “think their chances for good schools will be better under the Constitution with the protection of the courts than under a bill containing such provisions as this.”

The bill, without any schools provision, became law in 1875. It guaranteed to all citizens, regardless of “race or color,” the “full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement.” Claims of discrimination soon arose in inns, restaurants, steamboats, theaters, saloons, and—in a case that tested the statutory limits of “place of public amusement”—a Philadelphia cemetery. The defense to nearly every claim was that the statute—and the constitutional guarantee of equality that the statute was designed to advance—was not violated by separate but equal facilities. A series of cases arising in October 1876 found their way to the Supreme Court’s docket and, incredibly, lingered there for seven years.

The delay was not accidental. The Civil Rights Act of 1875 proved to be the last major act of Reconstruction. Ulysses S. Grant’s second term as president had been plagued by scandal, and the presidential election of 1876 promised a Democratic win. But Democrat Samuel B. Tilden was in ill health and an unenthusiastic candidate, while Republican Rutherford B. Hayes waged a vigorous campaign, resurrecting the “bloody shirt” of the Union soldier. Still, Tilden won the popular election by over a quarter million votes. But disputed elections in four states left Tilden one electoral vote shy of a majority; the election thus went to the House, which deadlocked. A fifteen-man Electoral Commission was appointed to arbitrate the disputed elections; by a vote of eight to seven, the Commission declared Hayes the victor. The House convened to confirm the Commission’s findings, but southern Democrats threatened a filibuster. A deal was struck. The terms of the Compromise of 1877 remain a subject of considerable controversy, but the net effect seems clear: the Republicans received the White House, and the Democrats secured an end to the federal effort at Reconstruction.

After 1877, the Redeemer governments in the South turned the guarantee of equality into a cruel hoax. Black Americans were disenfranchised by overt discrimination and by the unsubtle facades of poll taxes and literacy tests. Customary discriminations in public facilities became mandated by law. “Separate but equal” became only separate: forced segregation into inferior facilities served the dual purpose of limiting black opportunities and convincing poor whites that race was more important than economic class. Attempts to secure equalization were met by official hostility, in the form of racist political rhetoric and ever greater disparities in funding. Attempts by the black community itself to equalize were met by violence: churches and schools were burned; pastors, teachers, and successful businessmen or professionals were threatened, beaten, and sometimes killed. There was no more Freedmen’s Bureau to offer counsel, no federal garrison to offer protection; the old order was indeed redeemed.

The end of the federal resolve meant that the Civil Rights Act of 1875 would be only weakly enforced. But it was a thorn in the side of the South, a symbolic reminder of federal control and the challenge to the old ways. In the summer of 1882, with the civil rights cases still sitting on the Court’s docket, Chief Justice Morris J. Waite concluded an extraordinary series of correspondence with Hayes: “I agree with you entirely,” the chief justice wrote, “as to the necessity of keeping public sentiment at the south in our favor.” Waite then assigned the opinion in the Civil Rights Cases of 1883 to his most trusted aide, Justice Joseph P. Bradley, the man who, coincidentally, had cast the deciding vote in Hayes’s favor as a member of the 1876 electoral commission.

Bradley, who made the Compromise of 1877 possible, confirmed the deal in his decision. But he did not determine whether “separate but equal” was in compliance with the Civil Rights Act. Instead, Bradley ruled that the Civil Rights Act of 1875 was unconstitutional, because Congress lacked the authority to enact it.²² In reaching his decision, Bradley drew three vital distinctions:

First, slavery was distinct from racial discrimination. Congress had relied in part on the Thirteenth Amendment, but that amendment only prohibited slavery. There was a distinction, Bradley insisted, between slavery and racial discrimination. “It would be running the slavery argument into the ground,” Bradley concluded, “to make it apply to every act of discrimination which a person may see fit to make as to the guests he will entertain.”

Second, public action was distinct from private action. Congress had also relied on the Fourteenth Amendment’s guarantee of equality to justify its actions, but that guarantee, Bradley insisted, applied only to actions of state officials. There was a necessary distinction between public and private action; the discriminations of inn and theater operators were merely the latter. “[C]ivil rights,” Bradley concluded, “such as are guarantied by the constitution against state aggression, cannot be impaired by the wrongful acts of individuals, unsupported by state authority in the shape of laws, customs, or judicial or executive proceedings. . . . The wrongful act of an individual, unsupported by any such authority, is simply a private wrong.”

Finally, the redress of action was distinct from primary measures in the face of inaction. The public-private dichotomy led to Bradley’s final distinction: under the Fourteenth Amendment, Congress had only the power to respond to the wrongful actions of the states, it could not act affirmatively, in the face of, for example, state inaction. “[U]ntil some state law has been passed,” Bradley wrote,

or some state action through its officers or agents has been taken, adverse to the rights of citizens sought to be protected by the fourteenth amendment, no legislation of the United States under said amendment, nor any proceeding under such legislation, can be called into activity, for the prohibitions of the amendment are against state laws and acts done under state authority.

The Civil Rights Act of 1875 was thus void: “This is not corrective legislation; it is primary and direct.”

Bradley concluded his opinion with a critique of the late Reconstruction effort: “When a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, 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.”

Only John Marshall Harlan of Kentucky, the last Supreme Court justice to have been a slaveholder, dissented from Bradley’s opinion. Driven to Republicanism by racist violence in his home state, Harlan rose to Republicanism’s defense. “The opinion in these cases proceeds, as it seems to me, upon grounds entirely too narrow and artificial,” he wrote. “The substance and spirit of the recent amendments of the constitution have been sacrificed by a subtle and ingenious verbal criticism.”

Harlan was unconvinced by any of Bradley’s distinctions. As for the distinction between slavery and racial discrimination, which Bradley used to make the Thirteenth Amendment inapplicable, Harlan wrote,

since slavery, as the court has repeatedly declared, was the moving or principal cause of the adoption of that amendment, and since that 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, in respect of such civil rights as belong to freemen of other races.

As for the distinction between public and private action, it was, whatever its theoretical integrity, of no avail in this case: “In every material sense applicable to the practical enforcement of the fourteenth amendment, railroad corporations, keepers of inns, and managers of places of public amusement are agents of the state.”

Harlan could not see why congressional power under the Fourteenth Amendment should be restricted to remedial measures. Before the war, he noted, the Supreme Court had given Congress expansive powers to enforce the fugitive slave clause: “I venture, with all respect for the opinion of others, to 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.”

In response to Bradley’s broader critique, Harlan was properly incredulous: “It is, I submit, scarcely just to say that the colored race has been the special favorite of the laws.”

Harlan’s dissent was echoed in Congress. In December, Senator James F. Wilson of Iowa proposed a constitutional amendment designed to overturn Bradley’s decision in the Civil Rights Cases. The amendment read: “Congress shall have power, by appropriate legislation, to protect citizens of the United States in the exercise and enjoyment of their rights, privileges, and immunities, and to assure to them the equal protection of the laws.”

Wilson too was unpersuaded by Bradley’s distinctions. Slavery and discrimination were interrelated phenomena: the freedmen “were freighted down with the crushing burdens of ignorance, prejudice, race distinctions, lines of caste, and disabilities evolved by two centuries of slavery.” The public and private were also interrelated: private behavior was shaped by public law.

It was not expected that [the Civil Rights] act would at once dispel the race antagonism which centuries of slavery had intensified. But it was expected that by supplementing the kindly and humanizing offices of passing years with a protective law of the character of the one enacted the right end would come in time. This because most men are readily affected by the conservative influences of time, while the many not thus affected yield, more or less implicitly, to the commands of definite laws, especially if they are supported by penal sanctions. . . . It is not an easy thing to eradicate the prejudices of two centuries.

Congress could act affirmatively in the face of state inaction, because action and inaction could amount to the same thing: “non-action is a denial. Permitting things to be done in violation of a duty or obligation is a denial of both. A failure to enact laws for the equal protection of citizens is a denial of such protection. . . . The extremist oppression may result from inaction.”

Wilson’s efforts, of course, were to no avail. His amendment was not passed, and the Civil Rights Cases remained the measure of constitutional equality.

But there is one more dissenting voice worth considering; it provides perhaps the most effective rebuttal to Bradley’s artificial distinctions.

As for the claim that Congress’s power under the Thirteenth Amendment does not apply to racial discrimination, but extends only to the abolition of slavery, consider this 1871 judicial opinion:

Slavery, when it existed, extended its influence in every direction, depressing and disenfranchising the slave and his race in every possible way. Hence, in order to give full effect to the National will in abolishing slavery, it was necessary in some way to counteract these various disabilities and the effects flowing from them. Merely striking off the fetters of the slave, without removing the incidents and consequences of slavery, would hardly have been a boon to the colored race. Hence, also the amendment abolishing slavery was supplemented by a clause giving Congress power to enforce it by appropriate legislation. No law was necessary to abolish slavery; the amendment did that. The power to enforce the amendment by appropriate legislation must be a power to do away with the incidents and consequences of slavery, and to instate the freedmen in the full enjoyment of that civil liberty and equality which the abolition of slavery meant.

As for the contention that Congress’s powers under the Fourteenth Amendment are purely remedial and cannot be exercised affirmatively in the face of state inaction, consider this view, also recorded in 1871:

[The Fourteenth Amendment] not only prohibits the making or enforcing of laws which shall abridge the privileges or immunities of the citizen; but prohibits the states from denying to all persons within its jurisdiction the equal protection of the laws. [Denying] includes inaction as well as action. And denying the equal protection of the laws includes the omission to protect, as well as the omission to pass laws for protection.

Finally, as for the distinction between the public and private spheres, consider this speech delivered at the University of Pennsylvania Law School on October 1, 1884, one year after the decision in the Civil Rights Cases:

At first view when we walk amongst our fellowmen, we may not observe the omnipotent influence and controlling effect of the law. Its power is so subtle and all-pervading that everything seems to take place as the spontaneous result of existing conditions and circumstances. . . . [But the law] is over, under, in and around, every action, that takes place. Its silent reign is seen in the order preserved, the persons and property protected, the sense of security manifested. . . . The mighty river of things generally moves on with an undisturbed current; but only because it is kept in its banks and regulated in its course by the power of law.

[S]ociety and law are so intimately connected,” the speaker concluded, “that the hypothesis of one is the hypothesis of the other.” The speaker, and author of each of these passages, was Supreme Court Justice Joseph P. Bradley.²³

But neither Harlan’s protests, nor Wilson’s proposals, nor Bradley’s own inconsistencies could change the fundamental truth confirmed by the Civil Rights Cases: Reconstruction was over. As a result of the Supreme Court’s decision, the Nation magazine opined, “the negro will disappear from the field of national politics. Henceforth the nation, as a nation, will have nothing to do with him.” It would be worse than benign neglect.

Plessy v. Ferguson. From 1882 to 1901, over one hundred lynchings were reported annually. In 1892 alone, there were 230 recorded lynchings, 161 of black Americans. For black victims, lynching meant not merely a rope, but fire, torture, and dismemberment, often in a festive atmosphere, with tickets sold, and body parts of the victims distributed as souvenirs. All of it was done with official acquiescence, and sometimes official encouragement. This was America in 1896, when the Supreme Court announced its opinion on the constitutionality of segregation laws, of “separate but equal.” Americans were looking for guidance from the highest court in the land; some of them, in C. Vann Woodward’s phrase, were looking for “permission to hate.”

They got it. In Plessy v. Ferguson, the Supreme Court rejected Homer Plessy’s challenge to a Louisiana law requiring segregated rail facilities: Louisiana’s “equal but separate” law did not violate the equal protection guarantee of the Fourteenth Amendment. Henry Billings Brown of Massachusetts wrote the opinion for the Court. He created some dichotomies of his own.²⁴

A legal “distinction,” such as that between black and white, was not the same as a legal “inequality”:

A statute which implies merely a legal distinction between the white and colored races—a distinction which is founded in the color of the two races, and which must always exist so long as white men are distinguished from the other race by color—has no tendency to destroy the legal equality of the two races.

There was an argument, Brown acknowledged, that the legal distinction tended to connote the inferiority of the distinguished race. But it was an argument Brown rejected:

We consider the underlying fallacy of the plaintiffs argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.

Moreover, the equality that Plessy sought transcended the guarantees of the Constitution; that document ensured only a “legal equality,” not a “social” one:

The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either.

And, Brown reasoned, it could be no other way—the Constitution was powerless to affect the natural order:

The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other’s merits, and a voluntary consent of individuals. Legislation is powerless to eradicate racial instincts, or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the constitution of the United States cannot put them upon the same plane.

The only limitation on segregation laws was that they be “reasonable, and extend only to such laws as are enacted in good faith for the promotion of the public good.” “In determining the question of reasonableness,” Brown explained, the legislature “is at liberty to act with reference to the established usages, customs, and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order.” It is an effective measure of the myopia of the opinion that, under this standard, the Louisiana law was upheld.

Plessy v. Ferguson was, like the Civil Rights Cases, an eight-to-one decision; again, it was left to Justice Harlan to state equality’s case. Harlan avoided, at the outset, the conundrum of formal equality—mere abstract symmetry could not hide the real inequality:

It was said in argument that the statute of Louisiana does not discriminate against either race, but prescribes a rule applicable alike to white and colored citizens. But this argument does not meet the difficulty. Everyone knows that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons.

The message behind the Louisiana law was unmistakable, and it was these laws and their implicit lessons—not “racial instincts”—that were the root of racial animosity:

What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races, than state enactments which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens? That, as all will admit, is the real meaning of such legislation as was enacted in Louisiana.

Harlan did not accede to Brown’s myopic vision of “reasonableness”: there was nothing “good” about the “order” maintained by such laws, and the “comfort” they secured was certainly not universal. In Harlan’s more communal vision, there were two perspectives worth considering—black and white: “The destinies of the two races, in this country, are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law.”

There was, Harlan conceded, a social order in America. But it was not a natural one, and it was not one that the Constitution could tolerate:

The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth, and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage, and holds fast to the principles of constitutional liberty. But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.

Harlan’s analysis reached its climax with an assertion that was oxymoronic except as a statement of protest, as a refusal to permit constitutional aspirations to yield to the reality of inequality: “The humblest,” Harlan insisted, “is the peer of the most powerful.”

Harlan concluded his opinion by pointing out the lingering contradiction of American life:

We boast of the freedom enjoyed by our people above all other peoples. But it is difficult to reconcile that boast with a state of the law which, practically, puts the brand of servitude and degradation upon a large class of our fellow citizens,—our equals before the law. The thin disguise of “equal” accommodations for passengers in railroad coaches will not mislead any one, nor atone for the wrong this day done.

Plessy v. Ferguson made clear that, after civil war and reconstruction, there had been, fundamentally, no change. The natural order that slavery had converted into a racial one remained very much intact; Reconstruction’s guarantee of equality under law had not changed the order because, quite simply, it could not. And the premises of that order were now firmly established. “Race” was biological. Racism was natural. The constitutional guarantee of equality was merely formal. Real inequality was inevitable. The Constitution was powerless to change the natural order. These would remain the official views till the middle of the twentieth century.