Contemporary American History, 1877-1913

by Charles A. Beard

The effect of these limitations on the colored vote has been to reduce it seriously in the far South. If the negro has the amount of taxable property required by the constitution, he is caught by the provision which requires him to explain a section of the state constitution to the satisfaction of the white registering officers. The meanest white, however, can usually get through the net with the aid of his grandfather, or by showing his expertness in constitutional law. Mr. J. C. Rose has published the election statistics for South Carolina and Mississippi;[3] it appears that in those states there were, in 1900, about 350,796 adult male negroes and that the total Republican vote in both commonwealths in the national election of that year was only 5443. At a rough guess perhaps 2000 votes of this number were cast by white men, and the conclusion must be that about ninety-nine out of every hundred negroes failed to vote for President in those states. It is fair to state, however, that indifference on the part of the negroes was to some extent responsible for the small vote.

The legal restrictions completed the work which had been begun by intimidation. Under the new constitution of 1890 in Mississippi, only 8615 negroes out of 147,000 of a voting age were registered. In four years, the number registered in Louisiana fell from 127,000 in 1896 to 5300 in 1900. This was the exact result which the advocates of white supremacy desired to attain, and in this they were warmly supported by eminent Democrats in the North. "The white man in the South," said Mr. Bryan in a speech in New York, in 1908, "has disfranchised the negro in self-protection; and there is not a Republican in the North who would not have done the same thing under the same circumstances. The white men of the South are determined that the negro will and shall be disfranchised everywhere it is necessary to prevent the recurrence of the horrors of carpet bag rule."

Several attempts have been made to test the constitutionality of these laws in the Supreme Court of the United States, but that tribunal has been able to avoid coming to a direct decision on the merits of the particular measures—and with a convincing display of legal reasoning. The Constitution of the United States simply states that no citizen shall be deprived of the right to vote on account of race, color, or previous condition of servitude, and that the representation of any state in Congress shall be reduced in the proportion to which it deprives adult male citizens of the franchise. The ingenious provisions of the southern constitutions do not deprive the negro of the right to vote on account of his color, but on account of his grandfather, or his inability to expound the constitution, or his poverty. In one of the cases before the Supreme Court, the plaintiff alleged that the Alabama constitution was in fact designed to deprive the negro of the vote, but the Court answered that it could not afford the remedy, that it could not operate the election machinery of the state, and that relief would have to come from the state itself, or from the legislative and political departments of the Federal government.[4]

Social Discrimination against the Negro

The whites in the South were even less willing to submit to anything approaching social equality with the negro than they were to accept political equality. Discriminations against the negro in schools, inns, theaters, churches, and other public places had been common in the North both before and after the Civil War, and had received judicial sanction; and it may well be imagined that the southern masters were in no mood, after the War, to be put on the same social plane as their former slaves, and the poor whites were naturally proud of their only possession—a white skin. Knowing full well that this temper prevailed in the South the radical Republicans in Congress had pushed through on March 1, 1875, a second Civil Rights Act designed to establish a certain social equality, so far as that could be done by law.

The spirit of this act was reflected in the preamble: "Whereas it is essential to just government, we recognize the equality of all men before the law, and hold that it is the duty of government in its dealings with the people to mete out equal and exact justice to all, of whatever nativity, race, color, or persuasion, religious or political; and it being the appropriate object of legislation to enact great fundamental principles into law." After this profession of faith, the act proceeds to declare 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, theaters and other places of amusement, subject to limitations applied to all alike, regardless of race or color. The act further provided that in the selection of jurors no discrimination should be made on account of race, color, or previous condition of servitude under a penalty of not more than $5,000. Jurisdiction over offenses was conferred upon the district and circuit courts of the United States, and heavy penalties were imposed upon those who violated the law. This measure was, of course, hotly resisted, and, in fact, nullified everywhere throughout the Union, north and south—except in some of the simple rural regions.

The validity of the act came before the Supreme Court for adjudication in the celebrated Civil Rights Cases in 1883 and a part of the law was declared unconstitutional in an opinion of the Court rendered by Mr. Justice Bradley. According to his view, the Fourteenth Amendment did not authorize Congress to legislate upon subjects which were in the domain of state legislation—that is to create a code of municipal law for the regulation of private rights; but it merely authorized Congress to provide modes of relief against state legislation and the action of state officers, executive or judicial, which were subversive of the fundamental rights specified in the amendment. "Until some state law has been 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 done under state authority."

The question as to whether the equal enjoyment of the accommodations in inns, conveyances, and places of amusement was an essential right of the citizen which no state could abridge or interfere with, Justice Bradley declined to examine on the ground that it was not necessary to the decision of the case. He did, however, inquire into the proposition as to whether Congress, in enforcing the Thirteenth Amendment abolishing slavery and involuntary servitude, could secure the social equality contemplated by the act, under the color of sweeping away all the badges and incidents of slavery. And on this point he came to the conclusion that mere discriminations on account of race or color could not be regarded as badges of slavery. "There were," he added, "thousands of free colored people in this country before the abolition of slavery, enjoying all of the essential rights of life, liberty, and property the same as white citizens; and yet no one at that time thought that it was any invasion of his personal status as a freeman because he was not admitted to all of the privileges enjoyed by white citizens, or because he was subjected to discriminations in the enjoyment of accommodations in inns, public conveyances, and places of amusement."

Clearly, there was no authority in either the Thirteenth or Fourteenth Amendment for the section of the Civil Rights Act relative to inns, conveyances, and places of amusement, at least so far as its operation in the several states was concerned. If, however, any state should see fit to make or authorize unlawful discriminations amenable to the prohibitions of the Fourteenth Amendment, Congress had the power to afford a remedy or the courts in enforcing the Amendment could give judicial relief. Thus, while the Justice did not definitely say that the elements of social equality provided in the Civil Rights Act were not guaranteed by the Fourteenth Amendment, his line of reasoning and his language left little doubt as to what was the view of the Court.

Section four of the Civil Rights Act forbidding, under penalty, discrimination against any person on account of race, color, or previous condition of servitude in the selection of jurors had been passed upon by the Supreme Court in the case of Ex parte Virginia, decided in 1879, in which the section was held to be constitutional as providing not a code of municipal law for the regulation of private rights, but a mode of redress against the operation of state laws. The ground of distinction between the two cases is clear. A section forbidding discrimination in inns and conveyances is in the nature of a code of private law, but a section forbidding discrimination in the selection of jurors under penalty simply provides a mode of redress against violations of the Fourteenth Amendment by state authorities.