The Supreme Court in the Civil Rights Cases (1883) held that Congress unconstitutionally required racial equality in public accommodations. The Court claimed such a law made blacks a “special favorite of the laws.” The ruling symbolically marked the end of Reconstruction and suggested the limits of the end of slavery. The Supreme Court in the 1960s would have a broader understanding of equality and the rights everyone enjoys.
Reconstruction Amendments
The Thirteenth Amendment (1865) was a revolutionary moment.
A fundamental blot on our nation’s soul, violating our founding principle of equality, was banned by constitutional rule. Did not Abraham Lincoln himself promise only a few years earlier that the federal government would not interfere with a state’s right to regulate slavery?
The Civil War changed all that. Now, the question was the nature of freedom. How far could the federal government go to protect civil rights? The Fourteenth Amendment made everyone born on U.S. soil an American citizen. States could not violate their “privileges or immunities.”
States also could not deny anyone (all “persons” were covered) due process or equal protection under the law. The Fifteenth Amendment prohibited racial discrimination in voting.
Slaughterhouse Cases
The Supreme Court in the Slaughterhouse Cases (1873) provided a restrictive interpretation of the rights of citizens protected by the Fourteenth Amendment. The case involved regulating slaughterhouses. Was it acceptable to use a monopoly to protect public health?
A 5-4 majority worried that a too open-ended understanding would threaten federalism. Federalism is the division of power between local and national government, including the provision of state-wide discretion in deciding local policies. They used this case to make a point.
The justices could have narrowly upheld the law as a health regulation. It went much further.
Civil Rights Act of 1875
Congress, by the mid-1870s, was also hesitant about interfering with local governments.
Reconstruction was almost over. Republicans lost control of the House of Representatives in the 1874 elections. 1877 is often marked as the end of Reconstruction.
The Civil Rights Act of 1875 was the last federal civil rights law passed until 1957. The law banned racial discrimination in public accommodations, transportation, and jury service.
The original bill also covered public schools, churches, and cemeteries. This was a bridge too far. Churches and cemeteries involved religious liberty. Public schools raised the question of “social equality.” There was a general understanding that the Fourteenth Amendment did not protect social equality. For instance, bans on interracial marriage appeared to be okay.
The Supreme Court agreed that racial discrimination in jury service was unconstitutional. States could not deny equal protection under the law.
Civil Rights Cases
The Supreme Court decided a collection of cases in 1883 to determine if the rest of the law was constitutional. They found it unconstitutional, with only one justice dissenting.
The dissenter was Justice John Marshall Harlan, a former slaveowner. His wife later wrote that he had trouble writing his dissent. She had a perfect solution. She gave him the inkwell used by Chief Justice Taney when he wrote the infamous pro-slavery Dred Scott Case.
(He planned to give the inkwell to someone else. His wife made sure to keep it.)
Public accommodations are private businesses that serve the public. The Civil Rights Act covered hotels and places of public amusement. Inns were traditionally required to serve everyone. You did not have to welcome people into your home. An inn was another story.
The majority in the Civil Rights Cases focused on the “private,” while the dissent focused on the “public.” The majority argued the Fourteenth Amendment only covered state action. Harlan said, “Fine,” we are talking about PUBLIC accommodations and transportation here, guys!
Okay. What about the Thirteenth Amendment? There is no state action requirement there. Everyone was required to free their slaves. Isn’t such discrimination a “badge” of slavery?
Only Justice Harlan thought so. The majority opinion noted that states that banned slavery also allowed discrimination in public accommodations. How could that be a symbol of slavery?
The state action issue would soon be somewhat moot. Plessy v. Ferguson (1896) held that state-mandated racial segregation was constitutional. States could allow “separate but equal” (rarely truly equal) accommodations. Justice Harlan was the sole dissenter.
The Supreme Court argued in the Civil Rights Cases that there came a time when blacks could no longer enjoy being the “special favorite of the laws.” A presumptuous statement made less than twenty years after the end of slavery. It did symbolize the limits of freedom in the 1880s.
Civil Rights Act of 1964
A lot had changed by the time Congress again passed major civil rights legislation.
The New Deal resulted in the expansion of federal control over the economy. The Supreme Court accepted the resulting changes to federalism. The Court also recognized a broader range of fundamental rights that states had to protect, including free speech and religious liberty.
The Court ruled that public school segregation was unconstitutional. It also upheld the constitutionality of a new civil rights law that went further than the one in 1875.
The Civil Rights Cases left open the possibility that Congress could ban discrimination to regulate interstate commerce. That law, however, was not defended on that ground.
The Court (including Justice John Marshall Harlan II, Harlan’s grandson) seized the opening, accepting congressional findings that racial discrimination interfered with interstate commerce.
A few justices wanted to go further and use Justice Harlan’s arguments. Nonetheless, on this point, Harlan remained a dissenting voice. Loving v Virginia later protected interracial marriage.
The country had a new understanding of the meaning of freedom.