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Blog Against Racism Day: The Great Dissenter


When it comes to discussing the worst cases in Supreme Court history, I’ve always thought the Civil Rights Cases haven’t gotten a bad enough rap. (I should mention here that I’m talking in terms of consequences more than legal doctrine; many of the most infamously racist cases, because of the racism that has infected American constitutionalism, have been perfectly plausible applications of precedent and original intent.) Dred Scott was an atrociously immoral opinion, but its denial of African-American citizenship was the culmination of Jacksonian ideology, not a cause of it; the citizenship rights of African-American had been eroding for decades before the decision has handed down. The same is true of Plessy; it’s appalling, but by the time the case was handed down, Jim Crow had already left the station for good, and even if the case had been decided correctly it’s doubtful that it would have stood up for long. We can never know what effects the Civil Rights Cases would have had, but I think it’s very possible that it was far more consequential. In addition, it produced a great dissent from the first Justice Harlan, greater in my view than his much more famous dissent in Plessy, and for Blog Against Racism Day I thought I would provide some excerpts for readers unfamilar with this case.

The Civil Rights Cases effectively struck down the Civil Rights Act of 1875, which (similar to the 1964 CRA) created a federal right against racial discrimination in public accommodations. The Supreme Court held that Section V of the 14th Amendment, which gives Congress the ability to enforce the rights (including equal protection, due process, and the privileges or immunities of citizenship), should be narrowly construed as to give Congress only the power to respond directly to state action, rather than to legislate against private inequities that states help to uphold rather than eradicate. While I agree with Harlan that the majority opinion proceeded “upon grounds entirely too narrow and artificial” and that the result was that “the substance and spirit of the recent amendments of the Constitution have been sacrificed by a subtle and ingenious verbal criticism,” Bradley’s opinion was a plausible enough reading of the text; when I say it’s a candidate for the worst decision in history, I don’t mean that it’s a ludicrously implausible or unprincipled opinion in the manner of Bush v. Gore. Still, in the context of past Supreme Court precedents, the decision is quite disturbing. As Harlan notes, it is instructive to compare how the Court interpreted Congressional power when it came to the Fugitive Slave Act (which it upheld although it was not a directly enumerated power of Congress and had very dubious connections to any enumerated powers) with how it construed federal power in this case. Although the Civil War amendments expanded federal power, and although the Civil Rights Act was much more closely related to an enumerated power of Congress, when it came to protecting African Americans rather than using violence to hold them in bondage the Court suddenly became much less deferential to Congress. The effects of this type of reasoning were extremely important. In addition to striking down the Civil Rights Act, the Court also prevented Congress from intervening against terrorist violence that was used to intimidate black voters. The effect of the Court preventing Congress from intervening against private discrimination and violence against African-Americans in creating and maintaining the apartheid system that emerged can scarcely be overstated. Even in its most conservative era, the Court never permitted formal racial discrimination in granting the vote; the ability of whites, with the collaboration of state governments, to threaten blacks with the loss of their livliehoods, credit, property and lives was crucial to sustaining Jim Crow. As Harlan pointed out, the effect of the court’s gutting of both the privileges and immunities clause and Congress’ ability to protect African-Americans represented the return of slavery in a slightly different form. Indeed, Harlan argued that Congress’ enforcement powers under the 13th Amendment were sufficient:

Congress has not, in these matters, entered the domain of state control and supervision. It does not assume to prescribe the general conditions and limitations under which inns, public conveyances, and places of public amusement shall be conducted or managed. It simply declares in effect that since the nation has established universal freedom in this country for all time, there shall be no discrimination, based merely upon race or color, in respect of the legal rights in the accommodations and advantages of public conveyances, inns, and places of public amusement.
I am of opinion that such discrimination is a badge of servitude, the imposition of which congress may prevent under its power, through appropriate legislation, to enforce the thirteenth amendment; and consequently, without reference to its enlarged power under the fourteenth amendment, the act of March 1, 1875, is not, in my judgment, repugnant to the constitution.

Harlan’s dissent has many remarkable passages, but I think it’s particularly worth singling out this one. We’re often told that, civil rights legislation represents some kind of “special rights.” Bradley made that argument in this case, making the claim that African-Americans had to cease becoming the “special favorite of the laws,” which he claimed was the case under the Civil Rights Act. Harlan demolished this argument in a way that is still relevant in our time:

My brethren say that when a man has emerged from slavery, and by the aid of beneficient 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, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men’s rights are protected. It is, I submit, scarcely just to say that the colored race has been the special favorite of the laws. What the nation, through Congress, has sought to accomplish in reference to that race is, what had already been done in every state in the Union for the white race, to secure and protect rights belonging to them as freemen and citizens; nothing more.

It was right then, and it’s right now.

As a historical coda, the Civil Rights Cases remain good law to this day, and their narrow construction of the 14th Amendment has played a role in “New Federalism” cases such as the Court’s striking down an important provision of the Violence Against Women Act. The 1964 Civil Rights Act was upheld under the Commerce Clause, rather than the 14th Amendment, although Congress cited both in passing the legislation. I agree with Justice Douglas that the Court should have taken the opportunity to overturn the Civil Rights Cases, to remove this stain from American jurisprudence and to put Congress’ ability to pass human rights legislation on a more secure and logical footing.

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