Wycoff: LEGISLATION ESPECIALLY FOR THE NEGRO? THE BLACK PRESS RESPONDS TO LEGISLATION ESPECIALLY FOR THE NEGRO? THE BLACK PRESS RESPONDS TO EARLY SUPREME COURT CIVIL RIGHTS DECISIONS David Wycofft I. INTRODUCTION ....................... 2. We object to being put on a level with II. THE FOURTEENTH AND FIFTEENTH them ............................. 68 AMENDMENTS BECOME BUT HIDEOUS VII. CONCLUSION .......................... 71 M O CKERIES ............................ III. EARNESTLY DISCUSSING THE I. INTRODUCTION DECISIO NS ............................. The years 1873-1883 form perhaps the most im- IV. FEDERALISM ........................... portant decade in United States constitutional history.' A. PRESERVING THE MAIN FEATURES OF In the course of deciding a steady stream of cases in- THE GENERAL SYSTEM ................ volving the Thirteenth, Fourteenth and Fifteenth B. THE CAUSE OF ALL OUR WOES ....... amendments, 2 the Supreme Court laid the basis for the V. CLASS LEGISLATION ................... next century of the constitutional law of civil rights and VI. CLASS LEGISLATION IN THE BLACK civil liberties. Unfortunately, it was a "dreadful dec- PR E SS .................................. ade." In decision after decision, the Court struck down A. THE BANE OF THE NEGRO Is federal laws designed to protect civil rights and civil lib- LEGISLATION ESPECIALLY FOR THE erties, and devitalized the new amendments. N EGRO .............................. These early civil rights decisions of the United B. The Negro Is A Citizen And Must Be States Supreme Court provoked a significant response Protected ............................ in the African American community. Discussion of the 1. The same rights as are enjoyed by other decisions, especially the Civil Rights Cases (1883), was 4a people ............................ major theme in the African American press of the time. t Law Clerk, Honorable James T. Giles, United States District that "Congress shall have power" to enforce the amendment by Court for the Eastern District of Pennsylvania. B.S., Oklahoma means of "appropriate legislation." State University, 1978; Ph.D., State University of New York at 3. See Louis BOUDIN, GOVERNMENT BY JUDICIARY, VOI. II, 126- Stony Brook, 1984; J.D., Yale Law School, 1992. The author 127 (1932). would like to thank Bruce Ackerman for his early encouragement 4. By "African American press" or "Black press," I mean the of this project, and Deborah Freedman for her constant editorial press edited by Blacks and intended for a primarily Black audi- help. This article is dedicated with special thanks and apprecia- ence. See ROLAND WOLSELEY, THE BLACK PRESS U.S.A. 3-23 tion to the members of P.A.C.T. (Project for a Calculated Transi- (1990). The papers of this period were usually published weekly, tion) at Green Haven prison, Stormville, New York. were around four pages in length with five or six columns per 1. The period opens with the Slaughter-House Cases, 83 U.S. 36 page. They were usually highly partisan, and reflected the person- (1873) and ends with the Civil Rights Cases, 109 U.S. 3 (1883). ality of their owners and editors. Subscriptions were usually one 2. Section One of the Thirteenth Amendment provides: or two dollars per year. PHILIP M. MABE, RACIAL IDEOLOGY IN THE Neither slavery nor involuntary servitude, except as a pun- NEW ORLEANS PRESS, 1862-1877, at 29-30 (University of South- ishment for crime whereof the party shall have been duly western Louisiana Ph.D. 1977); GEORGETTA M. CAMPBELL, EXTANT convicted, shall exist within the United States, or any place COLLECTIONS OF EARLY BLACK NEWSPAPERS: A RESEARCH GUIDE TO subject to their jurisdiction. THE BLACK PRESS, 1880-1915, at xiv (1981). Section One of the Fourteenth Amendment provides: I rely primarily upon several papers which were rich in use- All persons born or naturalized in the United States, and ful material (and available on microfilm in the Yale University subject to the jurisdiction thereof, are citizens of the United library): Washington (D.C.) Bee, A.M.E. Christian Recorder (Phil- States and of the State wherein they reside. No State shall adelphia, Pa.), Cleveland (Ohio) Gazette, Huntsville (Alabama) make or enforce any law which shall abridge the privileges Gazette, New York Globe, Petersburg (Virginia) Lancet, Arkansas or immunities of citizens of the United States; nor shall any Mansion (Little Rock), Peoples Advocate (established in Alexan- State deprive any person of life liberty or property, without dria Virginia, later moved to Washington, D.C.). Invaluable re- due process of law; nor deny to any person within its juris- sources for identifying and locating Black newspapers include diction the equal protection of the laws. CAMPBELL, EXTANT COLLECTIONS OF EARLY BLACK NEWSPAPERS, Section One of the Fifteenth Amendment provides: supra; ARMISTEAD S. PRIDE, A REGISTER AND HISTORY OF NEGRO The right of citizens of the United States to vote shall not NEWSPAPERS IN THE UNITED STATES, 1827-1950 (Northwestern be denied or abridged by the United States or by any State University Ph.D. 1950). Works studying the Black press in partic- on account of race, color, or previous condition of ular times and places include: ALBERT KREILING, THE MAKING OF servitude. RACIAL IDENTITIES IN THE BLACK PRESS: A CULTURAL ANALYSIS OF All three Amendments have enforcement clauses, which provide RACEJOURNALISM IN CHICAGO, 1878-1929 (University of Illinois at Published by Yale Law School Legal Scholarship Repository, 1992 1 Yale JournalLegislation of Law Especially and Liberation, For The Vol. Negro? 3 [1992], Iss. 1, Art. 4 The Black press reported mass meetings and speeches law in people's day-to-day lives. The dissenters in the which were held in response to the decisions and filled 5 African American press called upon this experience and its columns with letters, editorials and "exchanges" constructed a "Constitution of Aspiration"9 that would discussing the reasoning and implications of the redress the real concerns of Black America. decisions. For the most part, the constitutional questions Black Americans responded to these civil rights confronted by writers in the African American press decisions on many different levels. The few favorable mirrored those which were addressed by the Supreme decisions naturally provoked praise for the Court and Court. What is the appropriate role for judicial review hopes for the future, while the unfavorable decisions in a democratic society? In particular, what is the role of generated condemnation and fear. But African Ameri- judicial review over legislation passed to enforce the Re- cans and their press responded to these decisions on a construction amendments? What is the proper relation- much more complex level than mere cheering or hiss- ship between federal and state power? What are the ing: they engaged the legal reasoning of the Supreme privileges and immunities of United States citizenship? Court majority and made legal arguments. In effect, Af- What is the meaning of equal protection of the laws? rican Americans wrote and spoke dissents to the unfavor- Does the Fourteenth Amendment have a state action re- 6 able opinions of the Supreme Court. Taken together, quirement? What rights may be protected under the these African American dissents define an alternative Thirteenth Amendment? Some of these issues were Constitution, a Constitution which differs drastically "officially" settled more or less definitively by the from the official version proclaimed by the Supreme Supreme Court.' 0 Others survive today as realms of Court. legal contention.' I All of them were contested 12 by writ- Since the African American dissenters' alternative ers in the African American press. Constitution was rooted in the experience of oppres- A thorough discussion of all the constitutional is- sion, it was often freed of the abstraction and formalism sues addressed by the African American press as it re- 7 of mainstream legalism. From their position at "the sponded to early Supreme Court civil rights decisions is 8 bottom" of American society, the dissenters in the Afri- beyond the scope of this paper. 13 Instead I will focus on can American press could see more clearly the reality of one particular topic which was of great interest to writ- Urbana Champaign Ph.D. 1973); MABE, RACIAL IDEOLOGY IN THE sence of a discriminatory statute, is state action for Fourteenth NEW ORLEANS PRESS, supra; GEORGE SLAVENS, A HISTORY OF THE Amendment purposes). The Slaughter-House Cases, 83 U.S. 36 MISSOURI NEGRO PRESS (University of Missouri, Columbia Ph.D. (1873), effectively gutted the Fourteenth Amendment's privileges 1969); THE BLACK PRESS IN THE SOUTH, 1865-1979 (Henry Lewis or immunities clause. Suggs ed. 1983); GILBERT WILLIAMS, THE A.M.E. CHRISTIAN RE- 11. For example, although the Civil Rights Cases' holding that CORDER: A FORUM FOR THE SOCIAL IDEAS OF BLACK AMERICANS, the Fourteenth Amendment only reaches state action remains 1854-1902 (University of Illinois at Urbana-Champaign Ph.D. in- tact, there has been a great deal of litigation concerning the exist- 1979). THE BLACK PRESS, U.S.A., supra, presents a survey of the ence, magnitude, and significance of a discriminatory actor's Black press from its origins to the present day. THE BLACK PRESS, connection to the state. See, e.g., Shelley v. Kraemer, 334 U.S. 1 1827-1890: THE QUEST FOR NATIONAL IDENTITY (M.E. Dann, ed. 1971) is a rich collection of reprinted articles from the Black (1948) (court enforcement of racial covenant); Terry v. Adams, 345 U.S. 461 (1953) (democratic primary run by private white club); press. See also NEGRO SOCIAL AND POLITICAL THOUGHT, 1850- Burton v. Wilmington ParkingAuthority 1920: REPRESENTATIVE TEXTS (H. Brotz ed. 1966). Other useful 365 U.S. 715 (1961) (restau- rant in city-owned parking lot refuses articles from the nineteenth century Black press can be found in to serve Blacks); Bell v. Maryland 378 U.S. 226 (1964) (state court enforcement of RESPECT BLACK: THE WRITINGS AND SPEECHES OF HENRY MCNEAL trespass laws against black sit-in participants); Moose Lodge No.