The Journal of Negro History, Volume 6, 1921

The Journal of Negro History
Vol. VI—January, 1921—No. 1

FIFTY YEARS OF NEGRO CITIZENSHIP AS QUALIFIED BY THE UNITED STATES SUPREME COURT

The Historic Background

The citizenship of the Negro in this country is a fiction. The Constitution of the United States guarantees to him every right vouchsafed to any individual by the most liberal democracy on the face of the earth, but despite the unusual powers of the Federal Government this agent of the body politic has studiously evaded the duty of safeguarding the rights of the Negro. The Constitution confers upon Congress the power to declare war and make peace, to lay and collect taxes, duties, imposts, and excises; to coin money, to regulate commerce, and the like; and further empowers Congress "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof." After the unsuccessful effort of Virginia and Kentucky, through their famous resolutions of 1798 drawn up by Jefferson and Madison to interpose State authority in preventing Congress from exercising its powers, the United States Government with Chief Justice John Marshall as the expounder of that document, soon brought the country around to the position of thinking that, although the Federal Government is one of enumerated powers, that government and not that of States is the judge of the extent of its powers and, "though limited in its powers, is supreme within its sphere of action."¹ Marshall showed, too, that "there is no phrase in the instrument which, like the Articles of Confederation, excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described."² Marshall insisted, moreover, "that the powers given to the government imply the ordinary means of execution," and "to imply the means necessary to an end is generally understood as implying any means, calculated to produce the end and not as being confined to those single means without which the end would be entirely unattainable."³ He said: "Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and the spirit of the Constitution, are constitutional."

Fortified thus, the Constitution became the rock upon which nationalism was built and by 1833 there were few persons who questioned the supremacy of the Federal Government, as did South Carolina with its threats of nullification. Because of the beginning of the intense slavery agitation not long thereafter, however, and the division of the Democratic party into a national and a proslavery group, the latter advocating State's rights to secure the perpetuation of slavery, there followed a reaction after the death of John Marshall in 1835, when the court abandoned to some extent the advanced position of nationalism of this great jurist and drifted toward the localism long since advocated by Judge Roane of Virginia.

In making the national government the patron of slavery, a new sort of nationalism as a defence of that institution developed thereafter, however, and culminated in the Dred Scott decision.⁴ To justify the high-handed methods to protect the master's property right in the bondman, these jurists not only referred to the doctrines of Marshall already set forth above but relied also upon the decisions of Justice Storey, the nationalist surviving Chief Justice Marshall. They believed with Storey that a constitution of government founded by the people for themselves and their posterity and for objects of the most momentous nature—for perpetual union, for the establishment of justice, for the general welfare and for a perpetuation of the blessings of liberty—necessarily requires that every interpretation of its powers have a constant reference to those objects. No interpretation of the words in which those powers are granted can be a sound one which narrows down every ordinary import so as to defeat those objects.

In the decision of Prigg v. Pennsylvania, when the effort was to carry out the fugitive slave law,⁵ the court, speaking through Justice Storey in 1842, believed that the clause of the Constitution conferring a right should not be so construed as to make it shadowy or unsubstantial or leave the citizen without the power adequate for its protection when another construction equally accordant with the words and the sense in which they were used would enforce and protect the right granted. The court believed that Congress is not restricted to legislation for the execution of its expressly granted powers; but for the protection of rights guaranteed by the Constitution, may employ such means not prohibited, as are necessary and proper, or such as are appropriate to attain the ends proposed. The court held, moreover, in Prigg v. Pennsylvania, that "the fundamental principle applicable to all cases of this sort, would seem to be, that when the end is required the means are given; and when the duty is enjoined, the ability to perform it is contemplated to exist on the part of the functionaries to whom it is entrusted." It required very little argument to expose the fallacy in supposing that the national government had ever meant to rely for the due fulfillment of its duties and the rights which it established, upon State legislation rather than upon that of the United States, and with greater reason, when one bears in mind that the execution of power which was to be the same throughout the nation could not be confided to any State which could not rightfully act beyond its own territorial limits. All of this power exercised in executing the Fugitive Slave Law of 1793 was implied, rather than such direct power as that later conferred upon Congress by the Thirteenth Amendment, which provided that Congress should have power to pass appropriate legislation to enforce it.

As the Supreme Court decided in the case of Prigg v. Pennsylvania that the officers of the State were not legally obligated to assist in the enforcement of the Fugitive Slave Law of 1793, Congress passed another and a more drastic measure in 1850 which, although unusually rigid in its terms, was enthusiastically supported by the Supreme Court in upholding the slavery regime. The Fugitive Slave Law of 1850 deprived the Negro suspect of the right of a trial by jury to determine the question of his freedom in a competent court of the State. The affidavit of the person claiming the Negro was sufficient evidence of ownership. This law made it the duty of marshals and of the United States courts to obey and execute all warrants and precepts issued under the provisions of this act. It imposed a penalty of a fine and imprisonment upon any person knowingly hindering the arrest of a fugitive or attempting to rescue one from custody or harboring one or aiding one to escape. The writ of habeas corpus was denied to the reclaimed Negro and the act was ex post facto. In short, the Fugitive Slave Law of 1850 committed the whole country to the task of the protection of slave property and made slavery a national matter with which every citizen in the country had to be concerned. In the interest of the property right of the master, moreover, the Supreme Court by the Dred Scott Decision⁶ upheld this measure, feeling that there was in Congress adequate power expressly given and implied to enforce this regulation in spite of any local opposition that there might develop against the government acting upon individuals to carry out this police regulation. The Negro was not a citizen and in his non-political status could not sue in a Federal court, which for the same reason must disclaim jurisdiction in a case in which the Negro was a party.

In the decision of Ableman v. Booth⁷ the court in construing the provision for the return of slaves according to the Fugitive Slave Law of 1850 further recognized the master's right of property in his bondman, the right of assisting and recovering him regardless of any State law or regulation or local custom to the contrary whatsoever. This tribunal then believed that the right of the master to have his fugitive slave delivered up on the claim, being guaranteed by the Constitution, the implication was that the national government was clothed with proper authority and functions to enforce it. These were reversed during the Civil War by the nation rising in arms against the institution of slavery which it had economically outgrown and the court in the support of the Federal Government exercising its unusual powers in effecting the political and social upheaval resulting in the emancipation of the slaves, again became decidedly national in its decisions.

Out of Rebellion the Negro emerged a free man endowed by the State and Federal Government with all the privileges and immunities of a citizen in accordance with the will of the majority of the American people, as expressed in the Civil Rights Bill and in the ratification of the Thirteenth, Fourteenth and Fifteenth Amendments. A decidedly militant minority, however, willing to grant the Negro freedom of body but unwilling to grant him political or civil rights, bore it grievously that the race had been so suddenly elevated and soon thereafter organized a party of reaction to reduce the freedmen to the position of the free people of color, who before the Civil War had no rights but that of exemption from involuntary servitude. During the Reconstruction period when the Negroes figured conspicuously in the rebuilding of the Southern States they temporarily enjoyed the rights guaranteed them by the Constitution. As there set in a reaction against the support of the reconstructed governments as administered by corrupt southerners and interlopers, the support which the United States Government had given this first effort in America toward actual democracy was withdrawn and the undoing of the Negro as a citizen was easily effected throughout the South by general intimidation and organized mobs known as the Ku-Klux Klan.

One of the first rights denied the Negro by these successful reactionaries was the unrestricted use of common carriers. Standing upon its former record, however, the court had sufficient precedents to continue as the impartial interpreter of the laws guaranteeing all persons civil and political equality. In New Jersey Steam Navigation Company v. Merchants Bank⁸ the court speaking through Justice Nelson took high ground in the defence of the free and unrestricted use of common carriers, a right frequently denied the Negroes after the Civil War. The court said that a common carrier is "in the exercise of a sort of public office and has public duties to perform from which he should not be permitted to exonerate himself without assent of the parties concerned." This doctrine was upheld in Munn v. Illinois⁹ and in Olcott v. Supervisors¹⁰ when it was decided that railroads are public highways established under the authority of the State for the public use; and that they are none the less public highways, because controlled and owned by private corporations; that it is a part of the function of government to make and maintain highways for the convenience of the public; that no matter who is agent or what is the agency, the function performed is that of the State; that although the owners may be private companies, they may be compelled to permit the public to use these works in the manner in which they can be used; "Upon these grounds alone," continues the opinion, "have courts sustained the investiture of railroad corporations with the States right of eminent domain, or the right of municipal corporations, under legislative authority, to assess, levy, and collect taxes to aid in the construction of railroads."¹¹ Jurists in this country and in England had also held that inasmuch as the innkeeper is engaged in a quasi public employment, the law gives him special privileges and he is charged with certain duties and responsibilities to the public. The public nature of his employment would then forbid him from discriminating against any person asking admission, on account of the race or color of that person.¹²

In the Slaughter House Cases¹³ and Strauder v. West Virginia¹⁴ the United States Supreme Court held that since slavery was the moving or principal cause of the adoption of the Thirteenth Amendment, and since that institution rested wholly upon the inferiority, as a race, of those held in bondage, their freedom necessarily involved immunity from, and protection against all discrimination against them, because of their race in respect of such civil rights as belong to freemen of other races. Congress, therefore, under its present express power to enforce that amendment by appropriate legislation, might enact laws to protect that people against deprivation, because of their race, of any civil rights granted to other freemen in the same States; and such legislation may be of a direct and primary character, operating upon States, their officers and agents, and also upon, at least, such individuals and corporations as exercise public functions and wield power and authority under the State.

The State was conceded the power to regulate rates, fares of passengers and freight, and upon these grounds it might regulate the entire management of railroads in matters affecting the convenience and safety of the public, such as regulating speed, compelling stops of prescribed length at stations and prohibiting discriminations and favoritisms. The position taken here is that these corporations are actual agents of the State and what the State permits them to do is an act of the State. The Thirteenth and Fourteenth Amendments made the Negro race a part of the public and entitled to share in the control and use of public utilities. Any restriction in the use of these utilities would deprive the race of its liberty; for "personal liberty consists," says Blackstone, "in the power of locomotion of changing situation, of removing one's person to whatever places one's own inclination may direct, without restraint, unless by due course of law."

In several decisions the court had held that the purpose of the Thirteenth and Fourteenth Amendments was to raise the Negro race from that condition of inferiority and servitude in which most of them had previously stood, into perfect equality of civil rights with all other persons within the jurisdiction of the United States. In Strauder v. West Virginia,¹⁵ and Neal v. Delaware,¹⁶ the court had taken the position that exemption from race discrimination is a right of a citizen of the United States. Negroes charged that members of their race had been excluded from a jury because of their color. The court was then of the opinion that such action contravened the Constitution and, as was held in the case of Prigg v. Pennsylvania, declared it essential to the national supremacy that the agent of the body politic should have the power to enforce and protect any right granted by the Constitution.

In Ex Parte Virginia the position was the same. In this case one Cole, a county judge, was charged by the laws of Virginia with the duty of selecting grand and petit jurors. The laws of that State did not permit him in the performance of that duty to make any distinction as to race. He was indicted in a Federal court under the act of 1875, for making such discriminations. The attorney-general of Virginia contended that the State had done its duty, and had not authorized or directed that county judge to do what he was charged with having done; that the State had not denied to the Negro race the equal protection of the laws; and that consequently the act of Cole must be deemed his individual act, in contravention of the will of the State. Plausible as this argument was, it failed to convince the court; and after emphasizing the fact that the Fourteenth Amendment had reference to the acts of the political body denominated a State, "by whatever instruments or in whatever modes that action may be taken" and that a State acts by its legislative, executive and judicial authorities, and can act in no other way, it said:

"The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a State government, deprives another of property, life, or liberty without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibitions; and, as he acts under the name and for the State, and is clothed with the State power, his act is that of the State. This must be so, or the constitutional prohibition has no meaning. Then the State has clothed one of its agents with power to annul or evade it. But the constitutional amendment was ordained for a purpose. It was to secure equal rights to all persons, and, to insure to all persons the enjoyment of such rights, power was given to Congress to enforce its provisions by appropriate legislation. Such legislation must act upon persons, not upon the abstract thing denominated as State but upon the persons who are the agents of the State, in the denial of the rights which were intended to be secured."¹⁷

The Supreme Court of the United States soon fell under reactionary influence and gave its judicial sanction to all repression necessary to establish permanently the reactionaries in the South and to deprive the Negroes of their political and civil rights. It will be interesting, therefore, to show exactly how far the United States Supreme Court, supposed to be an impartial tribunal and generally held in such high esteem and treated with such reverential fear, has been guilty of inconsistency and sophistry in its effort to support this autocracy in defiance of the well established principles of interpretation for construing the constitutions and laws of States and in utter disregard of the supremacy of Congress in the exercise of the powers granted the government by the Constitution of the United States.

The Right of Locomotion

In 1875 Congress passed a measure commonly known as the Civil Rights Bill, which was supplementary of other measures of the same sort, the first being enacted April 9, 1866.¹⁸ and reenacted with some modifications in sections 16, 17, and 18 of the Enforcement Act passed August 31, 1870.¹⁹ The intention of the statesmen advocating these measures was to secure to the freedmen the enjoyment of every right guaranteed all other citizens. The important sections of the Civil Rights Bill of 1875 follow:

Section 1. That all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theatres, and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude.

Section 2. That any person who shall violate the foregoing section by denying to any citizen, except for reasons by law applicable to citizens of every race and color, and regardless of any previous condition of servitude, the full enjoyment of any of the accommodations, advantages, facilities or privileges in said section enumerated, or by aiding or inciting such denial, shall for every such offense forfeit and pay the sum of five hundred dollars to the person aggrieved thereby, to be recovered in an action of debt, with full costs; and shall also, for every such offense be deemed guilty of a misdemeanor, and, upon conviction therefor, shall be fined not less than five hundred nor more than one thousand dollars, or shall be imprisoned not less than thirty days nor more than one year. Provided, That all persons may elect to sue for the penalties aforesaid, or to proceed under their rights at common law and by State statutes; and having so elected to proceed in the one mode or the other, their right to proceed in the other jurisdiction shall be barred: But this provision shall not apply to criminal proceedings, either under this act or the criminal law of any State: and provided further, That a judgment for the penalty in favor of the party aggrieved, or a judgment upon an indictment, shall be a bar to either prosecution respectively.

Although the Negroes by this measure were guaranteed the rights which were granted by the Constitution to every citizen of the United States, the members of the Supreme Court of the United States instead of upholding the laws of the nation in accordance with their oaths undertook to hedge around and to explain away the articles of the Constitution in such a way as to legislate rather than interpret the laws according to the intent of the framers of the Constitution. Subjected to all sorts of discriminations at the polls, in the courts, in inns, in hotels, on street cars, and on railroads, Negroes had sued for redress of their grievances and the persons thus called upon to respond in the courts attacked the constitutionality of the Civil Rights Bill, and the War Amendments, contending that they encroached upon the police power of the States.

The first of these Civil Rights Cases were: United States v. Stanley, United States v. Ryan, United States v. Nichols, United States v. Singleton, and Robinson and wife v. Memphis and Charleston R. R. Co. Two of these cases, those against Stanley and Nichols, were indictments for denying to persons of color the accommodations of an inn or hotel; two of them, those against Ryan and Singleton, were, one on information, the other on indictments, for denying to individuals the privileges and accommodations of a theatre. The information against Ryan was for refusing a colored person a seat in the dress circle of McGuire's Theatre in San Francisco; and the indictment against Singleton was for denying to another person, whose color was not stated, the full enjoyment of the accommodation of the theatre known as the Grand Opera House in New York.

The argument to show the culpability of the State was that in becoming a business man or a corporation established by sanction of and protected by the State, such a person or persons discriminating against a citizen of color no longer acted in a private but in a public capacity and in so doing affected an interest in violation of the State by controlling, as in the case of slavery, an individual's power of locomotion. The Civil Rights Bill was appropriate legislation as defined by the Constitution to forbid any action by private persons which "in the light of our history may reasonably be apprehended to tend, on account of its being incidental to quasi public occupations, to create an institution." The act of 1875 in prohibiting persons from violating the rights of other persons to the full and equal enjoyment of the accommodations of inns and public conveyances, for any reason turning merely upon the race or color of the latter, partook of the specific character of certain contemporaneous, solemn and effective action by the United States to which it was a sequel and is constitutional.

Giving the opinion of the court in Civil Rights Cases,²⁰ Mr. Justice Bradley said that the Fourteenth Amendment on which this act of 1875 rested for its authority, if it had any authority at all, does not invest Congress to legislate within the domain of State legislation or in State action of the kind referred to in the Civil Rights Act. He believed that the Fourteenth Amendment does not authorize Congress to create a code of municipal law for the regulation of private rights. He conceded that positive rights and privileges are secured by the Fourteenth Amendment but only by prohibition against State laws and State proceedings affecting those rights.²¹ "Until some State law has passed," he said, "or some State action through its officers or agents has been taken, adverse to the rights of citizens sought to be protected by the Fourteenth Amendment, no legislation of the United States under said amendment, nor any proceeding under such legislation, can be called into activity; for the prohibitions of the amendment are against State laws and acts under State authority." Otherwise Congress would take the place of State legislatures and supersede them and regulate all private rights between man and man. Civil rights such as are guaranteed by the Constitution against State aggression, thought Justice Bradley, cannot be impaired by the wrongful acts of individuals unsupported by State authority in the shape of laws, customs, or executive proceedings, for those are private wrongs.

Justice Bradley believed, moreover, that the Civil Rights Act could not be supported by the Thirteenth Amendment in that, unlike the Fourteenth Amendment, the Thirteenth Amendment is primary and direct in abolishing slavery. "When a man has emerged from slavery," said he, "and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, ceases to be the special favorite of the laws, and when his rights as a citizen or a man, are to be protected in the ordinary modes by which other men's rights are protected." To eject a Negro from an inn or a hotel, to compel him to ride in a separate car, to deny him access and use of places maintained at public expense, according to Justice Bradley, do not constitute imposing upon the Negroes badges and incidents of slavery; for they are acts of individuals with which Congress, because of the limited powers of the Federal government, cannot have anything to do. The particular clause in the Civil Rights Act, so far as it operated on individuals in the several States was, therefore, held null and void, but the court held that it might apply to the District of Columbia and territories of the United States for which Congress might legislate directly. Since then the court has in the recent Wright Case declared null and void even that part which it formerly said might apply to territory governed directly by Congress, thus taking the position tantamount to reading into the laws of the United States and the laws of nations the segregation measures of a mediaeval ex-slaveholding commonwealth assisted by the nation in enforcing obedience to its will beyond the three mile limit on the high seas.

Although conceding that the Thirteenth Amendment was direct and primary legislation, the court held that it had nothing to do with the guarantee against that race discrimination commonly referred to in the bills of complaint as the badges and incidents of slavery. The court found the Fourteenth Amendment negative rather than direct and primary because of one of its clauses providing that "no State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States nor shall any State deprive any person of life, liberty and property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." The court was too evasive or too stupid to observe that the first clause of this amendment was an affirmation to the effect that all persons born and naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside. In other words, the court held that if there is one negative clause in a paragraph, the whole paragraph is a negation. Such sophistry deserves the condemnation of all fairminded people, when one must conclude that any person even without formal education, if he has heard the English language spoken and is of sound mind, would know better than to interpret a law so unreasonably.

In declaring this act unconstitutional the Supreme Court of the United States violated one of its own important principles of interpretation to the effect that this duty is such a delicate one, that the court in declaring a statute of Congress invalid must do so with caution, reluctance and hesitation and never until the duty becomes manifestly imperative. In the decision of Fletcher v. Peck,²² the court said that whether the legislative department of the government has transcended the limits of its constitutional power is at all times a question of much delicacy, which seldom, if ever, is to be decided in the affirmative, in a doubtful case. The position between the Constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other. In the Sinking Fund Cases²³ the court said: "When required in the regular course of judicial proceedings to declare an act of Congress void if not within the legislative power of the United States, this declaration should never be made except in a clear case. Every possible presumption is in favor of the validity of a statute, and this continues until the contrary is shown beyond a rational doubt. One branch of the government cannot encroach on the domain of another without danger. The safety of our institutions depends in no small degree on a strict observance of this salutary rule." And this is exactly what happened. The judiciary here assumed the function of the legislative department. Not even a casual reader on examining these laws and the Constitution can feel that the court in this case felt such a clear and strong conviction as to the invalidity of this constitutional legislation when that tribunal, as its records show, had under different circumstances before the Civil War held a doctrine decidedly to the contrary.