The Smart Culture. Robert L. Hayman Jr.

the Democrats secured an end to the federal effort at Reconstruction.

      After 1877, the Redeemer governments in the South turned the guarantee of equality into a cruel hoax. Black Americans were disenfranchised by overt discrimination and by the unsubtle facades of poll taxes and literacy tests. Customary discriminations in public facilities became mandated by law. “Separate but equal” became only separate: forced segregation into inferior facilities served the dual purpose of limiting black opportunities and convincing poor whites that race was more important than economic class. Attempts to secure equalization were met by official hostility, in the form of racist political rhetoric and ever greater disparities in funding. Attempts by the black community itself to equalize were met by violence: churches and schools were burned; pastors, teachers, and successful businessmen or professionals were threatened, beaten, and sometimes killed. There was no more Freedmen’s Bureau to offer counsel, no federal garrison to offer protection; the old order was indeed redeemed.

      The end of the federal resolve meant that the Civil Rights Act of 1875 would be only weakly enforced. But it was a thorn in the side of the South, a symbolic reminder of federal control and the challenge to the old ways. In the summer of 1882, with the civil rights cases still sitting on the Court’s docket, Chief Justice Morris J. Waite concluded an extraordinary series of correspondence with Hayes: “I agree with you entirely,” the chief justice wrote, “as to the necessity of keeping public sentiment at the south in our favor.” Waite then assigned the opinion in the Civil Rights Cases of 1883 to his most trusted aide, Justice Joseph P. Bradley, the man who, coincidentally, had cast the deciding vote in Hayes’s favor as a member of the 1876 electoral commission.

      Bradley, who made the Compromise of 1877 possible, confirmed the deal in his decision. But he did not determine whether “separate but equal” was in compliance with the Civil Rights Act. Instead, Bradley ruled that the Civil Rights Act of 1875 was unconstitutional, because Congress lacked the authority to enact it.²² In reaching his decision, Bradley drew three vital distinctions:

      First, slavery was distinct from racial discrimination. Congress had relied in part on the Thirteenth Amendment, but that amendment only prohibited slavery. There was a distinction, Bradley insisted, between slavery and racial discrimination. “It would be running the slavery argument into the ground,” Bradley concluded, “to make it apply to every act of discrimination which a person may see fit to make as to the guests he will entertain.”

      Second, public action was distinct from private action. Congress had also relied on the Fourteenth Amendment’s guarantee of equality to justify its actions, but that guarantee, Bradley insisted, applied only to actions of state officials. There was a necessary distinction between public and private action; the discriminations of inn and theater operators were merely the latter. “[C]ivil rights,” Bradley concluded, “such as are guarantied by the constitution against state aggression, cannot be impaired by the wrongful acts of individuals, unsupported by state authority in the shape of laws, customs, or judicial or executive proceedings. . . . The wrongful act of an individual, unsupported by any such authority, is simply a private wrong.”

      Finally, the redress of action was distinct from primary measures in the face of inaction. The public-private dichotomy led to Bradley’s final distinction: under the Fourteenth Amendment, Congress had only the power to respond to the wrongful actions of the states, it could not act affirmatively, in the face of, for example, state inaction. “[U]ntil some state law has been passed,” Bradley wrote,

      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 done under state authority.

      The Civil Rights Act of 1875 was thus void: “This is not corrective legislation; it is primary and direct.”

      Bradley concluded his opinion with a critique of the late Reconstruction effort: “When a man has emerged from slavery, 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, and ceases to be the special favorite of the laws.”

      Only John Marshall Harlan of Kentucky, the last Supreme Court justice to have been a slaveholder, dissented from Bradley’s opinion. Driven to Republicanism by racist violence in his home state, Harlan rose to Republicanism’s defense. “The opinion in these cases proceeds, as it seems to me, upon grounds entirely too narrow and artificial,” he wrote. “The substance and spirit of the recent amendments of the constitution have been sacrificed by a subtle and ingenious verbal criticism.”

      Harlan was unconvinced by any of Bradley’s distinctions. As for the distinction between slavery and racial discrimination, which Bradley used to make the Thirteenth Amendment inapplicable, Harlan wrote,

      since slavery, as the court has repeatedly declared, was the moving or principal cause of the adoption of that 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.

      As for the distinction between public and private action, it was, whatever its theoretical integrity, of no avail in this case: “In every material sense applicable to the practical enforcement of the fourteenth amendment, railroad corporations, keepers of inns, and managers of places of public amusement are agents of the state.”

      Harlan could not see why congressional power under the Fourteenth Amendment should be restricted to remedial measures. Before the war, he noted, the Supreme Court had given Congress expansive powers to enforce the fugitive slave clause: “I venture, with all respect for the opinion of others, to insist that the national legislature may, without transcending the limits of the constitution, do for human liberty and the fundamental rights of American citizenship, what it did, with the sanction of this court, for the protection of slavery and the rights of the masters of fugitive slaves.”

      In response to Bradley’s broader critique, Harlan was properly incredulous: “It is, I submit, scarcely just to say that the colored race has been the special favorite of the laws.”

      Harlan’s dissent was echoed in Congress. In December, Senator James F. Wilson of Iowa proposed a constitutional amendment designed to overturn Bradley’s decision in the Civil Rights Cases. The amendment read: “Congress shall have power, by appropriate legislation, to protect citizens of the United States in the exercise and enjoyment of their rights, privileges, and immunities, and to assure to them the equal protection of the laws.”

      Wilson too was unpersuaded by Bradley’s distinctions. Slavery and discrimination were interrelated phenomena: the freedmen “were freighted down with the crushing burdens of ignorance, prejudice, race distinctions, lines of caste, and disabilities evolved by two centuries of slavery.” The public and private were also interrelated: private behavior was shaped by public law.

      It was not expected that [the Civil Rights] act would at once dispel the race antagonism which centuries of slavery had intensified. But it was expected that by supplementing the kindly and humanizing offices of passing years with a protective law of the character of the one enacted the right end would come in time. This because most men are readily affected by the conservative influences of time, while the many not thus affected yield, more or less implicitly, to the commands of definite laws, especially if they are supported by penal sanctions. . . . It is not an easy thing to eradicate the prejudices of two centuries.

      Congress could act affirmatively in the face of state inaction, because action and inaction could amount to the same thing: “non-action is a denial. Permitting things to be done in violation of a duty or obligation is a denial of both. A failure to enact laws for the equal protection of citizens is a denial of such protection. . . . The extremist oppression may result from inaction.”

      Wilson’s efforts, of course, were to