This Day in Legal History (Supreme Court Retreats From Reconstruction)

October 15, 1883—In a critical step away from ensuring equal rights to all, the U.S. Supreme Court knocked the foundation from under a landmark Reconstruction piece of legislation, the Civil Rights Act of 1875, by ruling that Congress could not apply the law on subjects within state jurisdiction.

Contrary to the natural expectations one might have, the court’s adverse ruling on the five “Civil Rights Cases”—consolidated into one—was written not by a member of the Democratic Party, which maintained its longtime stronghold in the South by crushing the rights of black freedmen, but by a Republican—Joseph B. Bradley.

But even more startling was the lone dissenter –not just a Republican, but a native-born white southern Republican, a man who had owned slaves in his youth but had turned decisively against the “peculiar institution”—John Marshall Harlan.

Justices Oliver Wendell Holmes Jr. and Robert Jackson probably enjoy the greatest reputations as writers on the high court. But for sheer moral passion in written decisions, I don’t think you’ll find any to compare with Harlan. His moral urgency and bravery is all the more evident in the lopsided majorities he stood against, nursing his only hope in that what turned out to be a far-distant posterity would vindicate his judgment.

Thirty years before the New Deal finally made it official, Harlan declared in his dissent in Lochner v. New York (1905) that Congress had the authority to legislate concerning maximum hours. It would take even longer—nearly a half century—before the Warren Court would agree with his reasoning in Plessy v. Ferguson (1896) that “Our Constitution is color-blind” and that “separate but equal” accommodations imposed inferiority upon an entire class of citizens.

But thirteen years before Plessy, Harlan had served notice that he would defend blacks under the most straitened circumstances—in the service of a law compromised at conception, weakened further in its enforcement, but one of the few remaining tools at the ready for a group of citizens who were watching their hard-won post-emancipation rights rapidly erode.

Eric Foner observes in his authoritative Reconstruction: America’s Unfinished Revolution, 1863-1877 that just passing the Civil Rights Act required the deletion of a major provision, a clause requiring integrated education. (How appropriate that the modern civil-rights movement began in earnest when the Supreme Court ruled on this very element in Brown v. the Board of Education of Topeka, Kansas in 1954.)

The act placed the burden of enforcement on the injured parties themselves—an increasingly difficult proposition when blacks were being intimidated out of using the franchise by the Ku Klux Klan and other agents of domestic terrorism. With the Democrats having achieved a landslide in Congressional elections in November 1874, the Republicans knew that this would be their last chance to pass legislation while still in control of the legislative and executive branches.

The Civil Rights Act, then, might be regarded as the last hurrah of Reconstruction, the moment when the “Radical Republicans” marshaled their forces for a renewed effort on behalf of the freedmen. The act, whatever its deficiencies in enforcement (deficiencies severe enough that it would eventually make the legislation practically a dead letter), still stood as a weapon that could be used in the future. In pursuit of the idea that all powers were equal before the law, it held that penalties could be imposed on anyone who discriminated against anyone using transportation facilities, hotels and inns, theaters and places of public amusement.

Violations of the law were rampant from the beginning. Nearly a generation had passed after Appomattox had seemingly settled the issue of the primary of federal over state authority, the Civil Rights cases hinged on the Tenth Amendment—the one reserving to the states and people any rights not specifically spelled out to Congress.

Justice Bradley took a pinched view of rights in this case. He didn’t have any problem with applying the Fourteenth Amendment to areas it had not envisioned, such as corporations and commercial interests, but ignored the obvious original intent of the legislation—on behalf of blacks.

An obsessive, persnickety researcher, Bradley was the type of guy who, when he missed a train because his wife insisted he wear new trousers, became so enraged that he cut the pants to shreds. Harlan immediately—and correctly—pointed out the narrowness of Bradley’s ruling in the case with this final closing statement:

“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 with power in the latter to dole out to the former just such privileges as they may choose to grant.”

In an act of supreme irony, the same pen used by Harlan in signing his dissent had also been employed by Roger Taney in the court’s infamous Dred Scott decision.