The Smart Culture. Robert L. Hayman Jr.

censure, and Heaven’s curse.

      On the other hand, it might also be said that they provided the greatest measure of redress possible within the constraints of their day, that they crafted mandates broad enough to serve the visions of future generations, generations unencumbered, they hoped, by the political and epistemological obstacles of the mid-nineteenth century. Some of them, indeed, thought the equality they were providing was very real, and they had fought hard to secure it. Republican senator Thomas W. Tipton of Nebraska, for one, saw Reconstruction as the real vindication of the promise of freedom:

      To grant a man his freedom from slavery and yet not secure to him the full and fair protection of law is only a mockery and insult. To allow him to amass property and then let others govern it by law, to allow him to seek liberty but deny him the power of preserving it by legislation, to allow him the claim to life but refuse him a jury of his peers, would be to rob him of the substance and cheat him with the shadow.

      Stevens thought it was at least a noble start. Speaking of the Fourteenth Amendment, he said: “I will take all that I can get in the cause of humanity and leave it to be perfected by better men in better times. It may be that that time will not come while I am here to enjoy the glorious triumph; but that it will come is as certain as that there is a just God.” Of course, that “glorious triumph”—of perfect equality—did not come during Reconstruction, nor, as the effort wound to its conclusion, did it appear on the horizon. Stevens knew it: “But men in pursuit of justice must never despair.”

      The Old Resolution: Redeeming the Natural Order

      Abolitionists convened in New York City in 1870 to celebrate the passage of the Fifteenth Amendment and to dissolve their various societies. Their work, however, was far from done. They reconstituted their groups as the National Reform League and dedicated their new organization to the struggle against the “social prosecution of men on account of their color.” Of necessity, their chief target was the comprehensive scheme of legal, quasi-legal, and extralegal measures that segregated and subordinated black Americans, a scheme known widely as Jim Crow.

      Jim Crow had, as C. Vann Woodward famously put it, a “strange career,” and harbored some contradictions of its own. Racial segregation, after all, had not been the rule in the antebellum South: close contact had been a necessary part of slave-master relations; the fear of slave rebellions had dictated that slave communities be maintained under watchful eyes on the plantations; and the ideology of racial supremacy had mandated the exclusion of black southerners—not merely their separation—from public accommodations, courthouses, and schools. In the North, on the other hand, the influx of white European immigrants in the first quarter of the nineteenth century meant a loss of black job opportunity and, with the eventual spread of universal white suffrage, a concomitant loss of political power. White-initiated segregation then became common in schools and churches; black northerners countered with the creation of formal black religious sects and black schools.

      The situation very nearly reversed after the war. In the North, the post-war migration and the elimination of racial restrictions on the franchise meant that the black vote was suddenly critical to electoral success. This created at least a sympathetic political environment for the neo-abolitionist crusade: the result throughout the North was state civil rights legislation formally eliminating racial discrimination, including the racial segregation of public accommodations and schools. Even the miscegenation laws were repealed.²⁰

      In the South, the effort to maintain racial hierarchy without the formal restraints of the peculiar institution took one of two forms. In those realms of life in which there had been, and still needed to be, interracial contacts—the great bulk of what might be described as social and economic life—the white South determined to replicate the old hierarchy of the master-slave relationship through devices that made no pretense to equality. Landowners joined together in refusing to sell to the freedmen, offering instead only absurdly exploitative sharecropping schemes. The freedmen were refused jobs and places to live, then jailed for vagrancy and impressed into labor for the same planters who refused to employ them. Such overt discrimination was nonetheless claimed to be beyond the reach of federal constitutional and legislative guarantees: the imposed inequalities were said to be “social.”

      In many of those realms of life from which black southerners were previously excluded—the courts, for example, and the schools—the white struggle against equality was eventually lost. So-called legal equality and political equality were explicitly guaranteed by the Reconstruction amendments; but since interracial contacts here were in no sense necessary, the obvious recourse was to segregation, to “separate but equal.” Separate judicial systems and school systems thus became the norm throughout the South; only in New Orleans, in fact, were public schools integrated. Even in South Carolina—where the predominantly black legislature became the first in the nation to offer universal, free public education—the Reconstruction government accepted schools that were segregated by custom.²¹

      The two realms, of course, were not mutually exclusive, as the case of public accommodations demonstrates. Such accommodations—inns, theaters, conveyances, and the like—were sometimes said to be “social” and beyond the equality mandate, and at other times were segregated under the doctrine of “separate but equal.” Both arguments, however, were apparently rejected by the Reconstruction Congress: in 1875, it outlawed racial discrimination in public accommodations.

      The Civil Rights Cases. The Civil Rights Act of 1875 was the climax of the neo-abolitionist struggle against Jim Crow. The bill had been introduced by Charles Sumner in the summer of 1870; a* originally drafted, it prohibited discrimination in public accommodations, juries, and schools. The bill drifted uncertainly in and out of committee for four years, leaving Sumner to plead from his deathbed in March 1874: “My bill, the civil rights bill—don’t let it fail.” Shortly thereafter, the bill passed the Senate, but the House recessed without action.

      Democrats controlled the House of Representatives after the elections of 1874, and the Republicans, in their lame duck session, finally passed the bill. Its managers, however, deleted the schools provision, though not before considering a provision that would have imposed a requirement that separate schools be “equal.” The provision was rejected by opponents and advocates of equality alike. “If we once establish a discrimination of this kind, we know not where it will end,” Congressman James Monroe explained; the freedmen and their advocates “think their chances for good schools will be better under the Constitution with the protection of the courts than under a bill containing such provisions as this.”

      The bill, without any schools provision, became law in 1875. It guaranteed to all citizens, regardless of “race or color,” the “full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement.” Claims of discrimination soon arose in inns, restaurants, steamboats, theaters, saloons, and—in a case that tested the statutory limits of “place of public amusement”—a Philadelphia cemetery. The defense to nearly every claim was that the statute—and the constitutional guarantee of equality that the statute was designed to advance—was not violated by separate but equal facilities. A series of cases arising in October 1876 found their way to the Supreme Court’s docket and, incredibly, lingered there for seven years.

      The delay was not accidental. The Civil Rights Act of 1875 proved to be the last major act of Reconstruction. Ulysses S. Grant’s second term as president had been plagued by scandal, and the presidential election of 1876 promised a Democratic win. But Democrat Samuel B. Tilden was in ill health and an unenthusiastic candidate, while Republican Rutherford B. Hayes waged a vigorous campaign, resurrecting the “bloody shirt” of the Union soldier. Still, Tilden won the popular election by over a quarter million votes. But disputed elections in four states left Tilden one electoral vote shy of a majority; the election thus went to the House, which deadlocked. A fifteen-man Electoral Commission was appointed to arbitrate the disputed elections; by a vote of eight to seven, the Commission declared Hayes the victor. The House convened to confirm the Commission’s findings, but southern Democrats threatened a filibuster. A deal was struck. The terms of the Compromise of 1877 remain a subject of