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Home , Enforcement Act of 1870

Federal Bar Council Quarterly Mar./Apr./May 2021 26

Legal History by Senator Charles than any previous Reconstruction Sumner in 1870. Initially designed legislation.” At the same time, how- The Supreme Court to “protect all citizens in their civil ever, it also was an example of the and legal rights” across every Republican Party’s loss of appetite Gets It Wrong (Again): conceivable aspect of civilian life, for governmental interference in and The Sumner’s bill went nowhere. In suc- control of the day-to-day oversight cessive congressional sessions, the of Southern affairs: enforcement By C. Evan Stewart re-introduced legislation got watered of the law would primarily be in down – ultimately eliminating all the hands of former slaves seeking references to schools, churches, redress in federal court. cemeteries, etc. – leaving protection only for places of “public accom- Public Accommodation modation.” Notwithstanding, the and the Supreme Court legislation remained bottled up in Congress; and Sumner died in As historian March of 1874. has written, the Civil Rights Act of The congressional election of 1875 did not amount to much in 1874 was a historic disaster for the practice. Public opinion (in both Republican party – in some part sections of the country) was op- By 1875, the federal government’s because it was a referendum on posed to the law, and there were efforts to compel the Southern States Sumner’s proposed bill. Returning not that many court cases brought. that fought the Civil War to grant for- to a lame-duck session of Congress Nonetheless, by the early 1880s, mer slaves even a modicum of “life, in December 1974 were 100 Re- five separate cases did make their liberty, and the pursuit of happiness” publican Congressmen (including way up to the U.S. Supreme Court. were coming to a disastrous conclusion. Butler) who had been defeated at Challenging hotels, theaters, and Mainly because of Southern whites’ the polls – the entire House at that railroads for discriminatory treat- intransigence (and widespread acts of time had only 273 members. Appar- ment, the five cases U.S.( v Stanley; terrorism against African-Americans ently with many legislators now not U.S. v. Ryan; U.S. v. Nichols; U.S. who sought to live as free men, vote, fearing their constituents’ wrath, the v. Singleton; and Robinson v. Mem- etc.), and partly because of weariness public accommodation law moved phis & Charleston Railroad) were on the part of the Northern popula- toward passage, also in large part consolidated together as the Civil tion, the was thanks to parliamentary maneuver- Rights Cases, 109 U.S. 3 (1883). on its last legs. In a final legislative ing in the House by Speaker James Writing for the Court’s majority gasp at doing something, Congress- G. Blaine and Congressman (and was Justice Joseph P. Bradley. This man (a/k/a “Beast future President) James A. Garfield. was significant because, although he Butler” – his nickname stemming The bill passed the House on dissented from the Slaughterhouse from his oversight of New Orleans February 4, 1875 (by a 162-100 Cases, 83 U.S. (16 Wall.) 36 (1873) during the Civil War) introduced the vote) and the Senate on February (the Privileges and Immunities Clause . 27th (by a 38-26 vote). President of the 14th Amendment was held U. S. Grant signed the legislation to protect only federal citizenship The Origins and Passage into law on March 1. The new law, rights, not those relating to state of the Civil Rights Act on the one hand, represented (in the citizenship), Bradley had firsthand words of historian ) “an judicial experience with the Colfax Butler’s legislative proposal unprecedented exercise of national massacre of 1873 (what historian had its direct antecedent in the authority, and breached traditional Eric Foner has described as “the civil rights legislation first offered federalist principles more fully bloodiest single act of carnage in 27 Mar./Apr./May 2021 Federal Bar Council Quarterly all of Reconstruction” – 60 African- the States” from depriving citizens Harlan began his dissent by Americans were killed at a political of due process or equal protection. observing “that the substance and rally in Louisiana by a white mob). Nothing gave Congress the authority spirit of the recent amendments of Presiding at a second trial of the to govern the conduct (discrimina- the Constitution have been sacrificed accused conspirators as a federal tory or otherwise) of individuals: by a subtle and ingenious verbal circuit judge for the Fifth Circuit, “Can the act of a mere individual, criticism.” In his view, the Court Bradley dismissed the convictions, the owner of an inn, . . . refusing an had “departed from the familiar rule ruling (among other things) that accommodation, be justly regarded requiring, in the interpretation of the charges violated the state ac- as imposing a badge of slavery or constitutional provisions, that full tion doctrine and failed to prove servitude upon the applicant, or only effect be given to the intent with a racial motive for the slaughter. as inflicting an ordinary civil injury, which they were adopted.” On appeal to the Supreme Court properly cognizable by the laws of According to Harlan, the 13th as v. Cruickshank, the State and presumably subject to and 14th Amendments gave Con- 92 U.S. 542 (1876), the Court af- redress by these laws until the contrary gress the authority to enact laws to firmed Bradley’s dismissal, holding appears? . . . [W]e are forced to the protect people from deprivations “on that the Enforcement Act of 1870 conclusion that such an act of refusal account of their race, of any civil (the Congressional statute utilized has nothing to do with slavery or rights enjoyed by other freemen.” to prosecute) applied (via the 14th involuntary servitude. . . . It would With respect to the state action ar- Amendment) only to state action and be running the slavery argument into gument, Harlan demonstrated that, not to acts of private individuals (the the ground to make it apply to every by the Court’s own jurisprudence, Court also ruled that the First and act of discrimination which a person railroads, theaters, and inns operated Second Amendments did not apply may see fit to make as to guests he under the color of state law. With to the acts of state governments or will entertain . . . or deal with in other the Court ignoring those decisions individuals). This decision opened matters of intercourse or business.” and rejecting the usual “broad the door in the South to heightened Former slaves, Bradley reasoned, and liberal connection” given to terrorism that suppressed black vot- had achieved the “rank of mere constitutional provisions, that left ing, forced Republicans from office, citizens”; they were not entitled “to “the civil rights under discussion and ultimately put in place solid be the special favorite of the laws.” [of African-Americans] practically Democratic state legislatures. (See And since “[m]ere discriminations at the mercy of corporations and Bennette Kramer’s “The Origins of on account of race or color were not individuals wielding power under Jim Crow,” Federal Bar Council regarded as badges of slavery [by public authority.” Harlan concluded News (November 2020).) free African-Americans before the presciently: “Today it is the colored At the outset of the Civil Rights Civil War],” there was no reason to race which is denied, by corpora- opinion, Bradley declared that “[i]t view them as “badges” now. tions and individuals wielding public is obvious that the primary and im- Just as the foregoing language authority, rights fundamental in their portant question in all the cases is prefigures/foreshadows the Court’s freedom and citizenship. At some the constitutionality of the law, for if even more odious ruling in Plessy future time it may be some other the law is unconstitutional, none of v. Ferguson, 163 U.S. 537 (1896) race that will fall under the ban.” the prosecutions can stand.” After an (see “Another Awful Decision by the extensive discussion, he ruled that the U.S. Supreme Court,” Federal Bar Postscripts Civil Rights Act of 1875 was indeed Council Quarterly (August 2016)), “unconstitutional and void.” In Butler’s as in Plessy the single dissent came • The Civil Rights Cases fed the view (on behalf of himself and seven from Justice , fire started by Cruikshank and other Justices), the 13th Amendment the only Southerner on the Court soon the Southern States had “simply abolished slavery”; and the and a former slaveholder (Bradley codified a system of economic 14th Amendment only “prohibited was from New Jersey). and social discrimination that Federal Bar Council Quarterly Mar./Apr./May 2021 28

the Supreme Court officially Motel v. United States, 379 U.S. • Besides his role in effectively blessed in Plessy. Amazingly, 241 (1964). nullifying the 14th Amendment the Court’s Civil Rights ruling • The starting point for anyone (at least in the 19th and early 20th has never been overturned, and wanting to know more about the centuries) (the its analysis on the reach of the Reconstruction Era is Profes- and the Knights of the White 14th Amendment was re-affirmed sor Foner’s magisterial work: Camelia publicly thanked Justice in United States v. Morrison, “Reconstruction: America’s Bradley for his jurisprudential 529 U.S. 598 (2000). While the Unfinished Revolution (1863 - work), Bradley is best known banned 1877)” (Harper & Row 1988). to history as the deciding vote discrimination in public accom- Professor Franklin’s article in the 1876 Electoral Commis- modations, it was found to be on the Civil Rights Act is: sion that voted (8-7) to rule constitutional because the law “The Enforcement of the Civil that Rutherford B. Hayes had was based upon the Commerce Rights Act of 1875” Prologue won the disputed presidential Clause. See Heart of Atlanta Magazine (Winter 1974). election over Samuel J. Tilden.