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American Federalism and the Civil Rights Act of 18751
Published online by Cambridge University Press: 16 January 2009
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Charles Sumner's Supplementary Civil Rights Bill, which after a tortuous legislative history became law as the Civil Rights Act of 1875, was intended to spell out in specific terms the procedural guarantees of the Thirteenth and Fourteenth Amendments and so to outlaw racial discrimination in public accommodation, entertainment and transport, in juries, churches and publicly supported schools and charities. The measure was not only the culmination of Sumner's life-long efforts on behalf of the Blacks, but also the only comprehensive attempt made by Congress during Reconstruction to secure racial equality. Yet the purpose of the Act was undermined even before its passage by die racial ambivalence and political calculations of its supporters, while the challenge it made to traditional concepts of American federalism was defeated in 1883 by the Supreme Court's decision that it was unconstitutional. The nature and extent of this challenge, however, becomes apparent only in the context of the pressures that shaped Republican legislation.
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References
2 The legislative history of the Act, attitudes towards it and questions of enforcement and assessment are well covered in Wyatt-Brown, Bertram, ‘ The Civil Rights Act of 1875 ’,Western Political Quarterly, 18 (1965), 763–75CrossRefGoogle Scholar; McPherson, James M., ‘ Abolitionists and the Civil Rights Act of 1875 ’, Journal of American History, 52 (1965), 493–510CrossRefGoogle Scholar; John Hope Franklin, ‘ The Enforcement of the Civil Rights Act of 1875 ’, read before the American Historical Association, 29 December 1964, and quoted in Weaver, Valeria W., ‘ The Failure of Civil Rights 1875–1883 and its Repercussions ’, Journal of Negro History, 54 (1969), 368–82CrossRefGoogle Scholar; Jager, Ronald B., ‘Charles Sumner, The Constitution and the Civil Rights Act of 1875’, New England Quarterly, 17 (1969), 350–72CrossRefGoogle Scholar; Donald, David, Charles Sumner and the Rights of Man (New York, 1970), pp. 531–9, 544–7Google Scholar.
3 Vann Woodward, C., ‘ Seeds of Failure in Radical Race Policy ’, in Hyman, Harold H. (ed.), New Frontiers of the American Reconstruction (Urbana, 1966), pp. 125–47Google Scholar; McFeeley, William S., Yankee Stepfather: General O. O. Howard and the Freedmen (New Haven, 1968)Google Scholar; Kelly, Alfred H., ‘ The Congressional Controversy over School Segregation 1867–1875 ’, American Historical Review, 64 (1959), 537–63CrossRefGoogle Scholar; McPherson, op. cit.
4 The Washington National Republican regularly reported Republican caucus meetings through December 1874 and January 1875. See especially the issues of 21 December 1874 and 20–3, 25 January 1875.
5 See the articles by Wyatt-Brown, McPherson and Kelly cited in notes 2 and 3. The schools clause may have been dropped deliberately to make sure of the two thirds majority necessary to change the rules and pass the enforcement programme, but Kelly stresses (p. 554) that through most of 1874 the Peabody Fund, a charity with considerable interests in Negro education, had brought heavy pressure to bear on the administration to have the clause killed. Many Republicans also felt that to impose mixed education on the South would destroy the tenuously rooted public school system for Black and White alike. Furthermore the drastic step of a rule change became necessary only after the Speaker's technical decision over the relative status of privileged motions. The treatment of the rules fight by McPherson and Kelly may well be too cynical, since whether or not the Civil Rights Bill was a mere ‘ stalking-horse ’ or a genuine priority, civil rights and enforcement legislation were but two sides of the same coin.
6 E.g., C.G.42.2.728 (31 January 1872).
7 Abraham, Henry J., Freedom and the Court: Civil Rights and Liberties in the United States (New York, 1967), pp. 32–40Google Scholar contains an introduction to the problems and a useful review of the literature. McKitrick, Eric, Andrew Johnson and Reconstruction (Chicago, 1960), pp. 326–63Google Scholar; and tenBroek, Jacobus, Equal Under Law (New York, 1965Google Scholar; expanded pbk. ed. of The Anti-Slavery Origins of the Fourteenth Amendment, Berkeley, 1951) present particularly convincing historical arguments.
8 C.G.41.2.3607 (19 May 1870).
9 C.G.42.1.577 (11 April 1871).
10 C.G.39.1.2500.
11 C.G.41.2.3611 (19 May 1870).
12 C.G.42.1.575 (11 April 1871); C.G.42.1.App.223 (13 April 1871).
13 21 L.Ed. 394 (1873).
14 21 L.Ed. 409.
15 21 L.Ed. 410.
16 C.R.43.2.App.104 (26 February 1875).
17 C.R.43.1.342 (19 December 1873); C.R.43.1.4084–5 (20 May 1874); see also Norwood (D.Ga.), C.R.43.1.App.241–2 (4 May 1874).
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19 The derivation of citizenship also had important implications for voting qualification. Immigrants in some western states could qualify by residence for the suffrage in state, and hence national, elections before being naturalized. Discussing this problem with Francis Lieber, the publicist and political theorist, James Garfield (at this time one of the most prominent moderate Republicans in the House) came out strongly in favour of national citizenship being the ‘ indespensable requisite ’ [sic] to State citizenship. Lieber to Garfield, 26 June 1870; Garfield to Lieber, 28 June 1870. Garfield Papers, Library of Congress. See also Lieber to John Sherman, 29 June 1870. Sherman Papers, Library of Congress.
20 C.R.43.1.3454 (29 April 1874).
21 21 L.Ed. 414.5.
22 Livestock Association v. Crescent City Co., 15 Fed. Cases 649 (No. 8,408) C.C.D.La (1870)
23 E.g., by Judge Woods in U.S. v. Hall, 26 Fed. Cases 79 (No. 15,282) C.C.E.D.Ala (1871).
24 21 L.Ed. 402. To call it Carpenter's brief is slightly misleading. His argument before the Court was apparently not recorded and the actual brief that appears at 21 L.Ed. 399–402 was the work of Charles Allen, Attorney-General of Massachusetts 1867–72, who was retained as counsel by the Crescent City Co., but who took no part in the oral argument. Fairman, Charles, History of the Supreme Court of the United States, Vol. VI, Reconstruction and Reunion, 1864–1888, Part One (New York, 1971), p. 1346Google Scholar. Unfortunately I did not have the benefit of this monumental work during the preparation of this article, but do not feel that its argument is affected in essentials.
25 6 Fed. Cases 546 (No. 3,230) C.C.E.D.Pa (1823). A New Jersey law forbidding oyster catching between May and December was violated by a fisherman from Pennsylvania, who had his boat seized. He sued for its return, claiming his privileges and immunities as a United States citizen were being abridged (since if he could fish in Pa. he should have been able to in N.J.). The court upheld the law.
26 6 Fed. Cases 552.
27 Field, 21 L.Ed. 418 and 414–15; Bradley, 21 L.Ed. 421–2.
28 21 L.Ed. 409–10.
29 21 L.Ed. 415.
30 C.R.43.1.4116 (21 May 1874).
31 C.R.43.1.4I50 (22 May 1874).
32 C.R.43.1.341 (19 December 1873).
33 C.R.43.1.3453 (29 April 1874).
34 Quoted in Miller, Loren, The Petitioners: The Story of the Supreme Court of the United States and the Negro (New York, 1966), p. 138Google Scholar. No source for the quotation is given, but Magrath, C. Peter, Morrison R. Waite: The Triumph of Character (New York, 1963), p. 121Google Scholar, mentions a letter in which Bradley advised Judge Woods that the Fourteenth Amendment secured by direct federal intervention all fundamental rights guaranteed in the Constitution. The sources given here are drafts of 3 January and 12 March 1871, Bradley Papers.
35 C.R.43.1.408 (6 January 1874).
36 loc. cit.
37 C.R.43.1.App. 304 (22 May 1874); see also Morton (R.Ind.), CR.43.1.App. 358–61 (21 May 1874).
38 21 L.Ed. 404–5.
39 Butchers Union Co. v. Crescent City Co., 28 L.Ed. 585 (1884).
40 Alcorn (R.Miss.), CR.43.1.App. 304 (22 May 1874).
41 C.R.43.1.App.358 (21 May 1874).
42 E.g., Hamilton (D.Md.), CR.43.2.App.104 (27 February 1875).
43 27 L.Ed. 835.
44 Hoogenboom, Ari, Outlawing the Spoils: A History of the Civil Service Reform Movement 1865–1883 (Urbana, 1961)Google Scholar. The figures (from Hoogenboom's appendix) are 1861, 49,200; 1867, 70,000; 1871, 53,900; 1881, 107,000.
45 A most important and revealing discussion of these points occurs in Kutler, Stanley I., Judicial Power and Reconstruction Politics (Chicago, 1968), pp. 148–59CrossRefGoogle Scholar; see also Hurst, James Willard, The Growth of American Law: The Law Makers (Boston, 1950), p. 117Google Scholar.
46 Samuel Bowles, ‘ State and Municipality ’, paper read before the Social Science Congress, Saratoga Springs, 7 September 1870(?) Unidentified newspaper clipping, Dawes Papers, Library of Congress.
47 Reed, Henry, ‘ Some Late Efforts at Constitutional Reform ’, North American Review, 121 (1875), 1–36Google Scholar; Baldwin, Simeon E., ‘ Recent Changes in our State Constitutions ’, Journal of Social Science, 10 (1879), 136–51Google Scholar. Baldwin taught at the Yale Law School and was a moving spirit in the formation of the American Bar Association.
48 Williams, Alfred, ‘ Uniform Laws for the Nation ’, Old and New, 4 (1871), 632–6Google Scholar.
49 E.g., Fisher, Sidney, The Trial of the Constitution (Philadelphia, 1863)Google Scholar, quoted in Hyman, , New Frontiers, p. 32Google Scholar; Bradford, Gamaliel, ‘ Congressional Reform ’, North American Review, 111 (1870), 330–51Google Scholar; Sumner, William Graham, ‘ Politics in America, 1776–1876 ’, North American Review, 122 (1876), 47–87Google Scholar; Wilson, Woodrow, Congressional Government (New York, 1884)Google Scholar.