Essay: Through the Wilderness with Sam Grant (Complete) (Part 5 of 9)
The most dangerous Branch.
Part 5
The nine grinding decades of disenfranchisement, Jim Crow segregation, and vigilante repression unconstrained (if not encouraged) by local law enforcement that black citizens endured in the South after Grant left office did not occur only because of the loss of national will and the shift in political winds that halted the Reconstruction campaign, as strong as those forces were.
Multiple factors (and many individual actors) shared the blame over the decades for suppressing and holding back the restoration and reconstitution of civil rights enforcement in the United States.
Prime among them in the 19th century were the Justices of the Supreme Court.
A.
In the Slaughter-House Cases (1873), five Justices of the Court, in an opinion by Associate Justice Samuel Freeman Miller, effectively negated the Privileges or Immunities Clause of the Fourteenth Amendment.
At issue was an 1869 Louisiana law enacted to address persistent health and sanitation problems, including water pollution, from slaughterhouses and livestock yards operating on the Mississippi River upstream of New Orleans.
The law required that all existing stockyards and slaughterhouses in three parishes around New Orleans be shut down and relocated to new facilities to be constructed along the Mississippi downstream of the city, and it created a public corporation (essentially a State agency) with the exclusive mandate to build and own the new facilities.
The corporation was required to make space in the new public slaughterhouse available on equal terms to all butchers serving the three parishes and to ensure that all livestock would be inspected by State health inspectors before slaughter, and it was authorized to charge uniform fees for the landing and yarding of livestock and for the use of the slaughterhouse by butchers.
The law made no distinction of any kind on the basis of race or color and had no relation to civil rights enforcement.
Local butchers challenged the law, claiming, among other things, that it violated their rights under the Privileges or Immunities Clause of the Fourteenth Amendment by denying them the ability to engage freely in their chosen trade through facilities of their own. They particularly attacked the exclusive mandate, or “monopoly,” given to the public corporation.
In rejecting the butcher’s claim, a majority of Justices interpreted the Clause to protect only a narrow rarefied set of Federal-law privileges and immunities—those that flow from and depend upon the existence of the Federal Government, such as the right to seek a writ of Federal habeas corpus, the right to petition the Federal Government for a redress of grievances and to run for Federal office and vote in Federal elections, the right of access to international ports and certain Federal properties, and the right to travel interstate.
These so-called “Federal” privileges were of no help to the butchers and of little or no consequence to most other citizens in Louisiana, black or white, since the Federal Government’s role in the everyday lives of local communities in 1873 (and thus the opportunity to take advantage of these Federal privileges) was minuscule. More fundamentally, the exercise of any such rights that flow from the Federal Government could always be protected from State interference by Federal law and Federal courts even if there were no Fourteenth Amendment. Thus, the majority opinion sucked all real substance out of the Privileges or Immunities Clause.
The Justices refused to read the Clause in accordance with its original understanding to protect citizens against denial of general State-law rights, including those listed in the Civil Rights Act of 1866, because they feared that doing so would entail an extraordinary extension of Federal authority beyond anything they wished to imagine and could potentially bring all manner of localized State-law disputes into the jurisdiction of the Court.
To avoid this fearsome result, the Justices clung to the pre-Reconstruction conception of State citizenship and insisted that each State’s legal relationship to its own citizens remained separate and unaffected by the new ideation of national citizenship established in the Fourteenth Amendment. To Justice Miller and the four other Justices in the majority, matters of State citizenship rights (except as qualified by the Comity Clause of the Constitution) fall entirely within the sphere of State sovereignty, and such rights must be “left to the State governments for security and protection.”
But, of course, those civil rights most fundamental to political participation in a republic, to the commercial, financial, and social interactions of a community, and to the full enjoyment of life in a society of free men are State-law rights. They were the basic rights of participatory citizenship that States withheld from slaves before the Civil War and that continued to be actively and systematically denied in the repression of black Americans in Louisiana and other States of the Jim Crow South.
With the majority’s opinion in the Slaughter-House Cases, these essential State-law civil rights were now beyond the reach of the Fourteenth Amendment’s Privileges or Immunities Clause.
Yet this gutting of the Clause was not necessary to the Court’s decision.
The Court could have turned away the butchers’ claim and avoided the result it feared by holding that the Clause doesn’t prevent a State from restricting particular business activities or specific contracts or property interests in circumstances where the State has a reasonable basis to regulate the activities in question and isn’t denying one class of citizens a general legal right fundamental to republican citizenship that it affords to others. (Such regulatory actions by States might violate the Contracts Clause of the Constitution by abrogating private contracts or the Due Process Clause of the Fourteenth Amendment by taking private property without adequate process or compensation, but not the Privileges or Immunities Clause.)
The Court could have concluded that the State of Louisiana was acting in its regulatory capacity in restricting the operation of stockyards and slaughterhouses and that the particular privilege of owning a stockyard or slaughterhouse in one of the three parishes of New Orleans was simply too narrow and specific to be among the general privileges of citizenship protected by the Fourteenth Amendment.
Or the Court could have gone further and held that the Clause condemns all distinctions among citizens based on certain forbidden classifications, such as race, color, religion, creed, ethnicity, status as a freedman, etc., and that imposing special restrictions on the butchers’ trade in New Orleans involved no such forbidden classification.
In the end, through a myopic reading of text, motivated by fear of broad change, five Justices denied history and did inestimable damage to the Fourteenth Amendment and to the citizens it was meant to protect. As Justice Field wrote in dissent, the majority’s reasoning rendered the Privileges or Immunities Clause “a vain and idle enactment, which accomplished nothing, and most unnecessarily excited Congress and the people on its passage.”
Rarely has the tyranny of Supreme Court review struck with such swift and sweeping effect, undoing a key part of a Constitutional amendment within five years of its ratification. Unfortunately, this act of supreme judicial arrogance has never been repudiated by the Court and continues to control the interpretation of the Fourteenth Amendment to this day.
B.
The second major judicial blow came when the Court uprooted and swept away the entire field of Federal civil rights enforcement aimed at private conduct:
The Court held that the Fourteenth Amendment reaches only State action—the decisions of State officers acting in their official capacity or the conduct of agents acting at the direction of State officers or with the apparent authority of the State.
On this ground, in United States v. Cruikshank (1876), the Court dismissed criminal indictments brought by the Justice Department against Klan-like private vigilantes in Louisiana who had conspired and banded together in large numbers to terrorize blacks and prevent them from exercising their civil rights.
And in the Civil Rights Cases (1883), the Court struck down Federal civil rights laws prohibiting racial discrimination by business owners in the provision of quasi-public services traditionally open to all customers, including inns and similar places of public accommodation, railroads, ferries, and other modes of public conveyance, and places of public amusement like theaters and amusement parks.
The Court’s constricted State-action reading of the Fourteenth Amendment negated Congress’s power under Section 5 to address the full range of actions and instruments of repression by which blacks in the South were denied the rights of citizenship and equal protection of the laws. Before the abolition of slavery, nearly all slaves, treated as personal property, had been at the direct mercy of private slave masters, not officers or agents of the State, and were denied dignity and status in all aspects of life by people at all levels of white society, both private actors and public officials. This lack of dignity and status had not changed much for blacks in the post-Reconstruction South.
The rise of unrestrained vigilantism across the South and the persistent denial by private businesses of equal access for blacks to the instruments and accommodations of civil society should have given Congress ample grounds to enact Federal legislation under Section 5 enforcing the Equal Protection Clause by imposing on States an affirmative duty to ensure that all persons within the State are afforded equal opportunity under law to engage in the commercial, social, and political transactions of civil life without discrimination on the basis of race, color, national origin, former condition of enslavement, etc.
One bright light in the Court’s 19th-century equal protection jurisprudence was Yick Wo v. Hopkins (1886). There, a unanimous Court invalidated fines and jail sentences imposed by San Francisco on Chinese owners of laundry shops who were operating their businesses without licenses where the record showed that their applications for licenses had been denied solely because they were Chinese. What if these same businessmen had been prevented from operating their shops by the concerted action of private anti-Chinese vigilantes? Why couldn’t Congress require California to give them effective legal protection from such racial discrimination or, if California failed to act, to provide them a direct remedy under Federal law?
As in the Slaughter-House Cases, however, the Court couldn’t tolerate an expansion of Federal enforcement authority into matters traditionally reserved to the sphere of State jurisdiction, and so it declared that notwithstanding the abolition of slavery and the ratification of the Fourteenth Amendment, black citizens who were terrorized by the widespread violence of racist vigilante gangs or blocked by private business owners from public accommodations open to all white citizens would have no recourse but to plead for relief in State courts and with State authorities.
Of course, racist vigilantes would threaten anyone who sought such recourse, and local law enforcement officers wouldn’t lift a finger to help. Thus, through the inaction of government officials and their tolerance and tacit encouragement of private conduct, black Americans could never actually realize “the equal protection of the laws.”
In a magnificent dissenting opinion in the Civil Rights Cases (one of the great dissents in Supreme Court history), Justice John Marshall Harlan exposed the bitter irony of the majority’s decision—especially when contrasted with earlier, pre-Civil War opinions of the Court upholding the Fugitive Slave Acts of 1793 and 1850, laws in which Congress, acting in its implied power to enforce the Fugitive Slave Clause of Article IV, Section 2 of the original Constitution, had given slave masters a right to invoke Federal process to recover slaves who escaped across State lines.
The 1793 Fugitive Slave Act had required State officers to apprehend escaped slaves from other States and provided for criminal fines, jail sentences, and civil damages awards against any individual, whether a State official or a private citizen, who harbored the fugitive or hindered the slave master’s efforts to capture the escaped slave. The expanded 1850 Act enhanced the penalties and the legal procedures and rights of recovery available to the slave master, who now could obtain arrest warrants and invoke the posse comitatus power of the local jurisdiction.
In upholding the 1793 Act, Justice Story had reasoned that it would be “a strange anomaly and forced construction to suppose” that the Federal Government must rely “upon State legislation” and “State sovereignty” for “the due fulfillment” of rights secured by the national Constitution. Chief Justice Taney reaffirmed this conclusion in rejecting a challenge to the 1850 Act.
The stark contrast in reasoning and outcome with the Fugitive Slave Act cases prompted Harlan to write:
“With all respect for the opinion of others, 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. If fugitive slave laws, providing modes and prescribing penalties whereby the master could seize and recover his fugitive slave, were legitimate exercises of an implied power to protect and enforce a right recognized by the Constitution, why shall the hands of Congress be tied so that—under an express power, by appropriate legislation, to enforce a constitutional provision granting citizenship—it may not, by means of direct legislation, bring the whole power of this nation to bear upon States and their officers and upon such individuals and corporations exercising public functions as assume to abridge, impair, or deny rights confessedly secured by the supreme law of the land?”
Regrettably, in Justice Harlan’s view, the Court’s interpretation heralded “an era of constitutional law when 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 the master.”
Henceforth, as he trenchantly observed, the rights announced in Section 1 of the Fourteenth Amendment would be little more than “splendid baubles thrown out to delude those who deserved fair and generous treatment at the hands of the nation.”
Grounds for such despair became even more pronounced after 1892, when the Democrats won control of both Houses of Congress and the White House for the first time since the Civil War. The Democrats seized the opportunity in 1894 to repeal many of the remaining parts of the Enforcement Acts of 1870 and 1871 that hadn’t already been weakened or invalidated by the Court.
The repealed laws included provisions requiring the appointment of Federal election officials to supervise all aspects of Federal elections, from voter registration and polling through the certification of returns, in local election districts where residents requested Federal supervision in advance of the election to protect the voting rights of blacks and other racial minorities. Congress wouldn’t enact such prophylactic voting rights laws again until the 1960s.
The Court’s State-action holding initially constrained Congress’s enforcement powers under both the Thirteenth and Fourteenth Amendments. The Court later overruled this holding with regard to the Thirteenth, now construed to reach private forms of involuntary servitude, but it remains controlling law to this day for all purposes under the Fourteenth Amendment.
It was this interpretation that prevented Congress from doing anything to address racial discrimination in public accommodations until the Civil Rights Act of 1964, where Congress acted on the basis of its power to regulate interstate commerce, an option that only became available in the middle decades of the 20th century after the Commerce Clause was greatly expanded in reach by Supreme Court opinions following the New Deal.
C.
The final killer opinion from the Supreme Court in the 19th century was Plessy v. Ferguson (1896), which allowed the South to maintain overtly racist segregation laws.
In Plessy, the Court upheld a Louisiana law that expressly mandated that non-whites ride in compartments separated from whites on passenger railroads operating in the State. The Court okayed the mandate because the law didn’t apply to interstate rail travel and because it specified that the separate accommodations offered by railroads to non-whites were supposed to be “equal” to those provided for whites.
This preposterous result was made possible by the reckless error committed by the Court in the Slaughter-House Cases. The Court’s nullification of the Privileges or Immunities Clause as applied to rights conferred by State law left the concept of “equal protection of the laws” the only viable basis for challenging State segregation requirements.
Louisiana had required “equal” facilities for blacks on its railroads, so the Court was satisfied the State wasn’t denying anyone “equal” protection. In its reasoning, the Court also downplayed the idea that social mixing of the races in public accommodations like railroads was fundamental to civil liberty.
Justice Harlan, in his most famous dissent, ridiculed the Court for accepting the “thin disguise of ‘equal’ accommodations” to uphold a law obviously designed to preserve the dominance of whites by suppressing “the personal freedom of citizens” on the basis of race. “Our Constitution is color-blind,” he declared, and:
“The arbitrary separation of citizens on the basis of race while they are on a public highway [railroads are treated as public highways] is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution. It cannot be justified upon any legal grounds.”
If the Court had remained true to the original intention of the Republican Congress that framed Section 1 of the Fourteenth Amendment, the Court would have struck down any State law that denied citizens of all races the same general privileges and immunities, including the right to stay in the same hotels, to ride in the same railroad cars, to serve on the same juries, to eat in the same restaurants and sit in the same theaters, to attend the same schools, etc.
Under the historically correct meaning of the Privileges or Immunities Clause, the Southern States never could have enacted or enforced the Jim Crow segregationist laws and policies that dominated Southern life from the end of Reconstruction through the 1960s.
How should we sum up what the Justices of the Court did to the Constitution and to the cause of civil liberty in these cases? How did their interpretations impact the history of the country?
The Justices betrayed the hundreds of thousands of Union soldiers, white and black, who fought and bled and died for freedom in the Civil War. They denigrated the honor and service and trust of Abraham Lincoln and U.S. Grant and the framers and ratifiers and supporters of the Reconstruction Amendments. And they consigned millions of citizens to the continuing wilderness of racial repression and second-class status for decades to come.
The legal pronouncements of a handful of unelected judges perpetuated the perverse racial inequalities and divisions that had originated in slavery, that had tainted and compromised our Constitution from its origin, and that had come to a head for violent resolution and final abolition in the War of Rebellion.
The consequences for the peace and prosperity of the Nation, for “the general Welfare” of the People of the United States, could only be calamitous and malign. As Justice Harlan said in Plessy:
“State enactments regulating the enjoyment of civil rights upon the basis of race, and cunningly devised to defeat legitimate results of the [Civil] war under the pretence of recognizing equality of rights, can have no other result than to render permanent peace impossible and to keep alive a conflict of races the continuance of which must do harm to all concerned.”
And so it would be.