But there is one more dissenting voice worth considering; it provides perhaps the most effective rebuttal to Bradley’s artificial distinctions.
As for the claim that Congress’s power under the Thirteenth Amendment does not apply to racial discrimination, but extends only to the abolition of slavery, consider this 1871 judicial opinion:
Slavery, when it existed, extended its influence in every direction, depressing and disenfranchising the slave and his race in every possible way. Hence, in order to give full effect to the National will in abolishing slavery, it was necessary in some way to counteract these various disabilities and the effects flowing from them. Merely striking off the fetters of the slave, without removing the incidents and consequences of slavery, would hardly have been a boon to the colored race. Hence, also the amendment abolishing slavery was supplemented by a clause giving Congress power to enforce it by appropriate legislation. No law was necessary to abolish slavery; the amendment did that. The power to enforce the amendment by appropriate legislation must be a power to do away with the incidents and consequences of slavery, and to instate the freedmen in the full enjoyment of that civil liberty and equality which the abolition of slavery meant.
As for the contention that Congress’s powers under the Fourteenth Amendment are purely remedial and cannot be exercised affirmatively in the face of state inaction, consider this view, also recorded in 1871:
[The Fourteenth Amendment] not only prohibits the making or enforcing of laws which shall abridge the privileges or immunities of the citizen; but prohibits the states from denying to all persons within its jurisdiction the equal protection of the laws. [Denying] includes inaction as well as action. And denying the equal protection of the laws includes the omission to protect, as well as the omission to pass laws for protection.
Finally, as for the distinction between the public and private spheres, consider this speech delivered at the University of Pennsylvania Law School on October 1, 1884, one year after the decision in the Civil Rights Cases:
At first view when we walk amongst our fellowmen, we may not observe the omnipotent influence and controlling effect of the law. Its power is so subtle and all-pervading that everything seems to take place as the spontaneous result of existing conditions and circumstances. . . . [But the law] is over, under, in and around, every action, that takes place. Its silent reign is seen in the order preserved, the persons and property protected, the sense of security manifested. . . . The mighty river of things generally moves on with an undisturbed current; but only because it is kept in its banks and regulated in its course by the power of law.
[S]ociety and law are so intimately connected,” the speaker concluded, “that the hypothesis of one is the hypothesis of the other.” The speaker, and author of each of these passages, was Supreme Court Justice Joseph P. Bradley.23
But neither Harlan’s protests, nor Wilson’s proposals, nor Bradley’s own inconsistencies could change the fundamental truth confirmed by the Civil Rights Cases: Reconstruction was over. As a result of the Supreme Court’s decision, the Nation magazine opined, “the negro will disappear from the field of national politics. Henceforth the nation, as a nation, will have nothing to do with him.” It would be worse than benign neglect.
Plessy v. Ferguson. From 1882 to 1901, over one hundred lynchings were reported annually. In 1892 alone, there were 230 recorded lynchings, 161 of black Americans. For black victims, lynching meant not merely a rope, but fire, torture, and dismemberment, often in a festive atmosphere, with tickets sold, and body parts of the victims distributed as souvenirs. All of it was done with official acquiescence, and sometimes official encouragement. This was America in 1896, when the Supreme Court announced its opinion on the constitutionality of segregation laws, of “separate but equal.” Americans were looking for guidance from the highest court in the land; some of them, in C. Vann Woodward’s phrase, were looking for “permission to hate.”
They got it. In Plessy v. Ferguson, the Supreme Court rejected Homer Plessy’s challenge to a Louisiana law requiring segregated rail facilities: Louisiana’s “equal but separate” law did not violate the equal protection guarantee of the Fourteenth Amendment. Henry Billings Brown of Massachusetts wrote the opinion for the Court. He created some dichotomies of his own.24
A legal “distinction,” such as that between black and white, was not the same as a legal “inequality”:
A statute which implies merely a legal distinction between the white and colored races—a distinction which is founded in the color of the two races, and which must always exist so long as white men are distinguished from the other race by color—has no tendency to destroy the legal equality of the two races.
There was an argument, Brown acknowledged, that the legal distinction tended to connote the inferiority of the distinguished race. But it was an argument Brown rejected:
We consider the underlying fallacy of the plaintiffs argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.
Moreover, the equality that Plessy sought transcended the guarantees of the Constitution; that document ensured only a “legal equality,” not a “social” one:
The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either.
And, Brown reasoned, it could be no other way—the Constitution was powerless to affect the natural order:
The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other’s merits, and a voluntary consent of individuals. Legislation is powerless to eradicate racial instincts, or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the constitution of the United States cannot put them upon the same plane.
The only limitation on segregation laws was that they be “reasonable, and extend only to such laws as are enacted in good faith for the promotion of the public good.” “In determining the question of reasonableness,” Brown explained, the legislature “is at liberty to act with reference to the established usages, customs, and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order.” It is an effective measure of the myopia of the opinion that, under this standard, the Louisiana law was upheld.
Plessy v. Ferguson was, like the Civil Rights Cases, an eight-to-one decision; again, it was left to Justice Harlan to state equality’s case. Harlan avoided, at the outset, the conundrum of formal equality—mere abstract symmetry could not hide the real inequality:
It was said in argument that the statute of Louisiana does not discriminate against either race, but prescribes a rule applicable alike to white and colored citizens. But this argument does not meet the difficulty. Everyone knows that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons.
The message behind the Louisiana law was unmistakable, and it was these laws and their implicit lessons—not “racial instincts”—that were the root of racial animosity:
What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust