Government by Judiciary. Raoul Berger

Maupassant, Gide, Valéry, and others. “To get at the truth of our system of morality (and equally of the law),” said Holmes, “it is useful to omit the emotion and ask ourselves [how far] those generalizations . . . are confirmed by fact accurately ascertained.” Oliver Wendell Holmes, Jr., Collected Legal Papers 306 (1920).

      32. The Burden of Southern History 87 (1960).

      33. David Donald, Charles Sumner and the Coming of the Civil War 29 (1960).

      34. “ [W]e can scarcely acknowledge the common features of mankind in this child of debasement whom slavery has brought among us. His physiognomy to our eyes is hideous, his understanding weak, his tastes low; and we are almost inclined to look upon him as a being intermediate between man and the brutes.” 1 Alexis de Tocqueville, Democracy in America 363 (1900). In the 39th Congress, Robert Hale of New York stated that the District of Columbia “contains a black population which, undoubtedly, approaches to the very extreme of ignorance and degradation . . . a population that has come into this District suddenly, just freed from slavery, with all the marks and burdens upon them that a state of slavery necessarily fixes upon its victims.” Cong. Globe, 39th Cong. 1st Sess. 280 (1865–1866), hereinafter cited as Globe. In citations to the Globe, Senators will be identified as such; all others are representatives.

      Even one sympathetic to the Negro cause, Senator Henry Wilson of Massachusetts, was constrained to hope in 1864 that “the school house will rise to enlighten the darkened intellect of a race imbruted by long years of enforced ignorance.” Quoted in tenBroek, 164.

      35. Tocqueville, supra note 34 at 365, 364.

      35a. “ [T]he abolitionists were regarded throughout most Northern circles as disagreeable and intemperate radicals and were heckled, harrowed, assaulted and even killed by Northern mobs.” Dan Lacy, The White Use of Blacks in America 54 (1972).

      36. Woodward, supra note 32 at 81. “In virtually every phase of existence Negroes found themselves systematically separated from whites [in the North, 1860] . . . in most places he encountered severe limitations to the protection of his life, liberty, and property.” Leon Litwack, North of Slavery: The Negro in the Free States 91–97 (1961), quoted in C. Vann Woodward, “Seeds of Failure in Radical Race Policy” in Hyman supra note 16 at 126.

      37. Woodward, “Seeds,” supra note 36 at 127, 128, 131, 132. Senator Thomas A. Hendricks of Indiana stated, “The policy of the State has been to discourage their immigration . . . to protect white labor. The presence of negroes in large numbers tends to degrade and cheapen labor, and the people have been unwilling that the white laborer shall be compelled to compete for employment with the Negro.” Globe 2939. The Freedmen’s Bureau and Civil Rights Acts “were intended not only to protect the freedmen but also to secure a contented black labor force who . . . stayed in the South.” Morton Keller, Affairs of State 65, 143 (1977).

      38. Woodward, supra note 32 at 82, 83. Senator James R. Doolittle of Wisconsin reported that “four out of five” Wisconsin soldiers “voted against Negro suffrage.” Globe 2165.

      39. Donald, Sumner II 156–157. An Illinois Radical, John F. Farnsworth, said,“ ‘Negro equality’ is the everlasting skeleton which frightens some people.” Globe 204. William E. Niblack of Indiana reminded the Congress that in 1851 Indiana ratified a Constitution that excluded Negroes from the State by a vote of 109,976 to 21,084. Globe 3212.

      “A belief in racial equality,” said W. R. Brock, “was an abolitionist invention”; “to the majority of men in the midnineteenth century it seemed to be condemned both by experience and by science.” “Even abolitionists,” he states, “were anxious to disclaim any intention of forcing social contacts between the races.” Brock, An American Crisis: Congress and Reconstruction 285, 286 (1963). See infra, Derrick Bell, Chapter 10 at note 6. Racism, Phillip Paludan states, was “as pervasive during Reconstruction as after. Americans clung firmly to a belief in the basic inferiority of the Negro race, a belief supported by the preponderance of nineteenth-century scientific evidence.” Phillip S. Paludan, A Covenant with Death 54 (1975). See also Keller, supra note 37. Many Republican newspapers in the North opposed “equality with the Negroes.” Flack 41. See also Keller, id. 51, 58, 65.

      40. Globe 257, 739, 911, 2799, 2948.

      41. John W. Chanler of New York, Globe 48, 218; Senator James W. Nesmith of Oregon, id. 291; Aaron Harding of Kentucky, id. 448; Senator Hendricks of Indiana, id. 880; Senator Garrett Davis of Kentucky, id. 246–250. The sympathetic reformer, Senator William M. Stewart of Nevada, stated, the “white man’s government . . . should not be scoffed at; that it was a prejudice in the country that no man has a right to disregard.” Id. 1437.

      42. Id. 935.

      43. Butterfield, supra note 28 at 226; cf. Stewart, supra note 41.

      44. For Indiana see supra note 39; for Oregon see Fairman, Stanford 32 note 58.

      45. See Van Alstyne’s summary, infra Chapter 4 at note 16.

      46. See infra Chapter 7 at note 41. As late as 1859 the Ohio Court rejected an attack on segregated schools. Van Camp v. Board of Education, 9 Ohio 407.

      47. For additional details see infra Chapter 13.

      48. Donald, Sumner II 232–233; see also id. 158.

      49. Woodward, supra note 32 at 79; see infra Chapter 10 at note 6.

      50. David Donald, The Politics of Reconstruction 12–13, 61–62 (1965).

      51. Speaking on June 4, 1866, James Wilson of Iowa said, “I know that many look forward to the fall elections and shiver in the presence of impartial suffrage.” Globe 2948.

      52. Donald, Sumner II 158.

      53. Thaddeus Stevens: Scourge of the South 287 (1959).

      54. See James 71.

      55. Globe 74; Samuel E. Morison, The Oxford History of the American People 714 (1965). Senator John Sherman of Ohio said, “never by my consent shall these rebels gain by this war increased political power, and come back here to wield that political power.” Globe 745. “I would no more admit the rebels to control