Our Colorblind Constitution? Part 2 of X
The Necessity of Race Consciousness, part 1 of y
Okay sorry this is a long one. I didn’t like any of the attempts to break it up.
Last time we discussed the historical fact that the Fourteenth Amendment permits and anticipates race conscious remedies. But that raises the question: should it?
Let’s get one thing abundantly clear. The United States Constitution has never been colorblind. From the moment Jefferson’s ink hit the page, from the moment the Founders asserted their natural right to rule by popular consent, by democracy, one group was excepted—ruled without their consent, denied sovereignty, denied fit for democracy.
Racialized chattel enslavement marked an explicit racial exception to the United States Constitution’s first principle: “all men are created equal.” As we will see, the question of whether the Constitution can or should be colorblind is identical with the question of whether we may atone for that original sin. I have written enough already about the theoretical implications of equality—that “all” really means all; that democracy’s inherent justice embraces all humans regardless of race; and that rejection of human equality necessarily rejects the concept of justice—we need not repeat that here. For now, we will focus on lessons drawn from experience. We must take account of race until we have utterly forgotten racial animus and consigned it to the dustbin of history because the material badges and incidents of servitude inevitably provide ongoing bases for subordination. That bears repeating. The badges and incidents are the bases of enslavement.
We’ll get to all of this in time. But first some history. Given all the focus on Justice Harlan’s (in)famous proclamation, it would be worth reading the Court’s decision in Plessy, if only for context. Yet more importantly (conveniently?), as we will see, Plessy read in conjunction with the earlier Civil Rights Cases marks the paradigm for how the badges and incidents of servitude metastasize into the bases of continued subordination. That might not be apparent at first glance (it wasn’t to me), so today we’ll spend some time unpacking those two cases. Next time we’ll bring the story to the present. And after that, we’ll look to the future and answer the questions posed above.
If Justice Harlan’s dissent in Plessy surprised few in 1896, it was only because of his monumental dissent in 1883’s Civil Rights Cases. That case is taught, if at all, in Constitutional Law courses as the origin of the Court’s “state action” doctrine: the invention that the Fourteenth Amendment governs only State, not private, action. True enough, but simplistic. For the Civil Rights Cases’ real impact lies in its evisceration of the Fourteenth Amendment’s guarantee of equal citizenship.
To step back a moment, the Civil Rights Act of 1866 really was only the first round of Congressional Reconstruction. Soon after, Congress divvied the South into military districts and conditioned Southern States’ readmission to the Union on their ratification of the Fourteenth Amendment. The Civil Rights Act of 1871 gave President Ulysses S. Grant sweeping powers to wield the Union Army in defense of the Freedmen’s civil rights and cut Southern State courts out of the equation altogether. Where civil rights plaintiffs under the 1866 Act had to sue first in State court—for mistreatment undoubtedly sanctioned either by State law, official practice, or neglect—and then finagle their way into Federal court via a complicated procedural mechanism called “removal” jurisdiction, the 1871 Act extended Federal court jurisdiction to their claims. Then in 1875, building on the 1866 act, Congress added to the list of rights incident to American citizenship: equal civil accommodations. The Civil Rights Act of 1875 declared:
That all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, facilities, and privileges of inns, public conveyances on land and water, theaters, and other places of public amusement.
Black Americans were to receive equal treatment at restaurants, pubs, theaters, railroads and other transportation—anything held open to the public. And to make itself exceedingly clear, Congress took a further extraordinary step. Since the Founding, State courts had been (and still generally are) presumed competent to hear cases and claims arising under Federal law. On the matter of equal civil accommodations, Congress had had enough of the recalcitrance, and stripped the State courts of the ability to preside over cases arising out of violations of the new Civil Rights Act. Unsurprisingly, white America resisted.
By October 1882, a batch of cases arising out of denials of service at various hotels, a theater in San Francisco, an opera in New York, and the Memphis & Charleston Railroad reached the Supreme Court. Yet these cases evinced more than Americans’ adherence to racism, they raised a seemingly mad challenge—that Congress lacked the authority to pass the Civil Rights Acts of 1875 under the auspices of the Thirteenth and Fourteenth Amendments which had so recently entirely remade the Constitution in Congress’ favor! And yet, it worked. Eight Justices, led by Grant’s own appointee, Joseph P. Bradley, declared the Act unconstitutional.
Bradley’s folly warrants little serious grappling. All could see the Fourteenth Amendment’s guarantee of due process, privileges and immunities, and equal protection targeted State misconduct—“No State shall . . . .” But those obviously weren’t the clauses on which Congress relied. To confine the force of the Amendment solely against the States, however, Bradley simply ignored the first sentence, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Indeed, in a truly laughable turn, Bradley posited that Congressional delineation and enforcement of the contours of such citizenship according to the Fourteenth Amendment would be “repugnant to the Tenth.” And, while he admitted that the Thirteenth Amendment prohibited both slavery and its badges and incidents, Bradley denied that the mere “social right[]” of civil accommodations fell within that ambit. “It would be running the slavery argument into the ground to make it apply to every act of [racial] discrimination . . . When a man has emerged from slavery . . . there must be some stage . . . when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws.”
Alone, Harlan lambasted the Court. How could the Civil Rights Act of 1875 not fall comfortably within the Thirteenth Amendment’s ambit? What could the eradication of slavery mean any less than the eradication not just of the name but of the material badges and incidents of bondage—the guarantee of “the enjoyment of such civil rights as were fundamental to freedom?” However universally phrased in its dictate, the Thirteenth Amendment arose from a particular historical instance of enslavement, one which “rested wholly upon the inferiority, as a race, of those held in bondage.” Freedom for black Americans thus “necessarily involved immunity from, and protection against, all discrimination against them, because of their race, in respect of such civil rights as belong to freemen of other races.”
Even ignoring a general protection from discrimination, the Common Law made abundantly clear freemen’s entitlement to equal accommodation on public highways and at inns and places of public amusement. Turnpikes, ferries, and railroads all served a fundamentally public function—liberty begins with “the power of locomotion,” Blackstone had told us. That’s why public highways, even privately owned, enjoyed the power of eminent domain, but were also subject to general State regulation. Inns played much the same public role. “An innkeeper is bound to take all travelers and wayfaring persons,” Justice Story had written. More pointedly, Harlan drew directly from English case law: “[I]nnkeepers are a sort of public servant[] . . . An indictment lies against an innkeeper who refuses to receive a guest, he having at the time room in his house . . . The innkeeper is not to select his guests.” And as to places of public amusement, “established and maintained under direct license of the law,” Harlan quoted the acclaimed English jurist, Lord Chief Justice Hale:
When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good.
Leaving nothing to the imagination, Harlan continued, “The colored race is part of that public.”
Harlan capped his argument dragging the cruel irony in the Court’s decision. There could be no question that the Thirteenth Amendment authorized Congress to directly govern private conduct in pursuit of the foregoing. After all, it both granted the right of free personhood and named Congress its guarantor. Besides directly governing private conduct, 1850’s Fugitive Slave Act placed far more Federal resources at a “master’s” disposal on the mere implication of the Constitution’s eponymous clause. As Justice Joseph Story had explained in Prigg v. Pennsylvania regarding the 1793 Fugitive Slave Act’s less intrusive—but no less direct—regulation of personal conduct: “It would be a strange anomaly and forced construction to suppose that the national government meant to rely for the due fulfillment of its own proper duties, and the right which it intended to secure, upon State legislation, and not upon that of the Union.” Is “[t]hat doctrine,” Harlan asked, “now to be abandoned when the inquiry is not to an implied power to protect the master’s rights, but what may Congress, under powers expressly granted do for the protection of freedom” for “a people which had been invited by an act of Congress to aid in saving from overthrow a government which, theretofore, by all its departments, had treated them as an inferior race, with no legal rights or privileges except such as the white race might choose to grant them?”
Hardly content to leave matters to the Thirteenth Amendment, Harlan then detailed the Fourteenth’s equal authorization of the Civil Rights Act of 1875. Far from mere prohibition on State action, Harlan read the first sentence of the Amendment as though it had meaning. “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The Amendment explicitly and affirmatively granted United States (and State) citizenship to all who had been emancipated. And what substantive rights did Congress necessarily impart within that grant of citizenship? “[T]hose which are fundamental in citizenship in a free republican government.” At the very least, “if there be no other,” this included “exemption from race discrimination in respect of any civil rights belonging to citizens of the white race . . . .” And just as above, the Amendment’s enforcement provision, Section 5, authorized at least as direct and intrusive legislation as the Court had repeatedly recognized to be valid in defense of enslavers’ rights.
In one sense, the Civil Rights Cases left the result in Plessy v. Ferguson in doubt. Just because Congress could not prohibit racial discrimination in civil accommodations did not mean States could mandate it. But alongside inventing the “state action” doctrine, the Court crucially characterized civil accommodations as a “social” concern—not a matter of civil rights. In that light, the Fourteenth Amendment had nothing to say on the matter, be it Federal or State action. Plessy, then, was just a matter of time.
The facts of Plessy recount a familiar American story. In defiance of a Louisiana Statute prescribing racially segregated railcars, Homer Plessy, a black man, entered a whites-only carriage, was confronted by a conductor,1 ejected from the train, and imprisoned. And as even schoolchildren know, the United States Supreme Court upheld the constitutionality of such racial segregation, proclaiming it “equal but separate”—it was actually Harlan who phrased it “separate but equal.”
How did the Court ensure state-mandated racial segregation survive both the Thirteenth Amendment’s prohibition of slavery and its badges and incidents and the Fourteenth Amendment’s guarantee of equal citizenship? Well for one, segregated railcars, the Court said, merely separated the races. It did not reduce one back to bondage. For another, as to equal citizenship, the Court explained that equal did not so much mean equal treatment as much as equally ensuring each citizen stayed in his or her place:
[W]hen this great principle [Equality] comes to be applied to the actual and various conditions of persons in society, it will not warrant the assertion, that men and women are legally clothed with the same civil and political powers, and that children and adults are legally to have the same function and be subject to the same treatment; but only that the rights of all, as they are settled and regulated by law, are equally entitled to the paternal consideration and protection of the law for their maintenance and security.
While the Reconstruction Amendments meant “undoubtedly to enforce the absolute equality of the two races before the law . . . it could not have been intended to abolish distinctions based on color, or to enforce social, as distinguished from political equality, or a commingling of the races upon terms unsatisfactory to either.” After all, no one seriously thought that racially segregated schools, or prohibitions of interracial marriage violated the Fourteenth Amendment. As our dearest First Lady Elinor Roosevelt would one day say, “No one can make you feel inferior without your consent.” Thus, the “fallacy” of Plessy’s complaint lay “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 because of anything found in the act, but solely because the colored race chooses to put that construction upon it.” At bottom, “[i]f 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 on the same plane [er . . . railroad car].” Of course, “the proportion of colored blood necessary to constitute a colored person” depends upon State law, and therefore may differ between the States. But that wasn’t the Court’s problem.
Harlan, to be fair, was not entirely alone in failing to join Justice Henry Billings Brown’s decision. Brown’s Yale classmate,2 Justice David Josiah Brewer (yes, the intellectual inbreeding goes all the way back) “did not hear argument or participate in the decision of th[e] case.” But for all intents and purposes, Harlan sat alone behind the bench.
We cannot ignore the modern debate about the Constitution’s cognizance of race as we read. This is no grand treatise on the Reconstruction Amendments, the import of civil accommodations to equal citizenship, and their denial as a badge of enslavement. To be sure, Harlan mentions those. But most modern misinterpretation of the opinion stems from ignorance of the fact that it is first and foremost a practical judicial decision, aimed at a specific legal question: the abomination of legalized racial subordination under the heading “separate but equal.”
So it should come as little surprise that Harlan begins the opinion by lambasting the use of race in civil accommodations at all, observing:
In respect of civil rights, common to all citizens, the Constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of their rights.
We need not dig into the weeds to grasp why. Civil accommodations are one notable area where simply erasing racial restrictions would be expected to resolve past injustice, no affirmative action or race-conscious continuing remedy required. Take down the “whites only” sign and the railcar or pub or hotel is, in fact, open to all. In the simplest cases, equality ignores race. But that is not this case.
It was not Plessy but Louisiana that brought race into question by segregating its railcars. This demanded a more searching notion of equality. The Reconstruction Amendments prohibited “discrimination . . . against any citizen because of his race.” The freedom guaranteed by the Thirteenth Amendment, and the equal citizenship guaranteed by the Fourteenth, each imparted “exemption from legal discriminations, implying inferiority in civil society.” Anticipating later debates regarding interracial marriage and LGBTQ rights, Harlan rejected the notion that “separate but equal” accommodations did not discriminate but rather “prescribe[d] a rule applicable alike to white and colored citizens.” He explained:
Every one 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.
. . .
I cannot see but that, according to the principles this day announced, such state legislation, although conceived in hostility to, and enacted for the purpose of humiliating citizens of the United States of a particular race, would be held to be consistent with the Constitution.
. . .
The thin disguise of “equal” accommodations for passengers in railroad coaches will not mislead anyone, nor atone for the wrong this day done.
Even truly equal accommodations could not overcome the fact that the separation itself embodied racial hostility. The goal of race neutrality did not prevent our Constitution, in Harlan’s view, from rejecting the stratification of the people into superior and inferior:
[I]n view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.
Our Constitution may grant its blessings irrespective of race, but it sees and tolerates no deviation from that goal.
It remains an evergreen irony that those who would misconstrue Harlan’s words to reactionary ends today ignore the blatant white supremacy of his opinion. For his rosy conception of Constitutional civil equality masks a gaping caveat: social inequity:
The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty.
As in the Civil Rights Cases, Harlan’s operative disagreement with the Court proves to be simply whether public accommodations should be considered a civil or a social matter, and he chides the Court for opting for the latter, under fear that integrated railcars undermine white supremacy:
That argument, if it can be properly regarded as one, is scarcely worthy of consideration; for social equality no more exists between two races when travelling in a passenger coach or a public highway than when members of the same races sit by each other in a street car or in a jury box.
Indeed, Harlan cannot help but mock Louisiana’s shabby (in his eyes) drafting, noting that while it excludes Black American citizens from white railcars, it fails to exclude members of other races, whom we consider “so different from our own that we do not permit those belonging to it to become citizens of the United States . . . I allude to the Chinese race.”
Thus, context confirms the conclusions sketched briefly last time: Harlan adopts an anti-subordination, not an anti-classification, notion of the Reconstruction Amendments, so far as they apply. But big complications remain. We will discuss Harlan’s ideological dissonance more later. On one hand, his white supremacy proves a useful caution against idealizing the past. On the other, it makes all the more remarkable his grasp of civil equality as by necessity a matter of racial antisubordination—and raises the question of what modern reactionaries stand to lose by rejecting Harlan’s best instincts while embracing his worst.
For a long time, I thought the Civil Rights Cases rendered Plessy more or less a footnote. Recasting civil accommodations as a social, not civil, right outside the scope of the equal protection clause freed States to segregate at will. Plessy just confirmed that. Moreover, I don’t think anything in Plessy matches the import of the Court’s rejection of Congress’ power to define that equal U.S. citizenship (as explained here). But I have come to recognize the importance of taking the step a prior case presages. With Plessy, the badges and incidents dismissed by an exasperated Bradley have transformed into the bases of Jim Crow.
It cannot be overemphasized. At common law, an innkeeper, bargeman, or train conductor would have had no ground to reject a traveler on the basis of race. Denial of civil accommodations to Black Americans rested entirely on their subordination and exclusion from the rights and privileges attending free personhood. This was no mere denial of dignity. Even today, the right to travel means little without accommodation on the road (just look at the Americans with Disabilities Act). Denial of those accommodations (and the resultant denial of travel) confines enslaved persons to the land of their bondage, just as it did serfs. Magic words don’t enslave people—material political, economic, and social shackles do. And so the badges and incidents of slavery must be viewed not merely as markers of servitude but the material pillars of that subordination.
All of this suffices to damn Bradley for denying Congress’ authority to eradicate not just the name but the practical condition of enslavement. Plessy, however, renewed the overt and legally mandated subordination which the malingering badges and incidents had threatened. Congressional incapacity gave way to relegalized white supremacy, but in new clothes. Recall from above:
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 on terms unsatisfactory to each.
Of course, we know, as did Harlan, that “unsatisfactory to each” meant “unsatisfactory to white folks.” But this is, at least nominally, a different argument than Black American’s supposed fitness for bondage. Justice Brown continued with:
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.
and
If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.
In other words, Congressional incapacity has transformed into sociocultural propriety! We cannot force these separated peoples together; segregation must persist until white Americans view black Americans as equals. Having lawfully excluded Black Americans from white life for the preceding two centuries in the name of enslaving them, Justice Brown recast that remaining de facto segregation (very much ignoring the Black codes that had been passed across the South during Reconstruction) as white American’s right to be free of their Black compatriots.
This notion would merge into the “right of association,” embraced across American law all the way to the top. Case in point, Professor Herbert Wechsler of Columbia Law School—drafter of the liberal-fever-dream Model Penal Code, president of the preeminent American Law Institute, and still-namesake of the textbook on the jurisdiction of the Federal Judiciary— criticized Brown v. Board of Education rejection of Jim Crow in his celebrated Holmes Lecture at Harvard Law, Toward Neutral Principles of Constitutional Law:
For me, assuming equal facilities, the question posed by state-enforced segregation is not one of discrimination at all. Its human and its constitutional dimensions lie entirely elsewhere, in the denial by the state of freedom to associate, a denial that impinges in the same way on any groups or races that may be involved. I think, and I hope not without foundation, that the Southern white also pays heavily for segregation, not only in the sense of guilt that he must carry but also in the benefits he is denied . . .
But if the freedom of association is denied by segregation, integration forces an association upon those for whom it is unpleasant or repugnant. Is this not the heart of the issue involved, a conflict in human claims of high dimension, not unlike many others that involve the highest freedoms . . . Given a situation where the state must practically choose between denying the association to those individuals who wish it or imposing it on those who would avoid it, is there a basis in neutral principles for holding that the Constitution demands that the claims for association should prevail?
As though white America has not merely the right to be racist, but the right to act upon it—claiming victimhood should that right to subordinate be infringed. This notion of law persists today in the “Mrs. Murphy” exception to 1968’s Fair Housing Act, which exempts small-time landlords from its prohibition of racial discrimination on the basis of that “right” to associate. But that starts treading on our topic next time.
For the present it suffices to answer Prof. Wechsler’s objection as we hinted at the start. The difference between one’s generalized right to choose friends and associates differs from one’s “right” to be free from interaction with Black Americans in that the former is just called making friends and the latter launders a renewed subordination predicated on the lingering badges and incidents of prior subordination. And that should start to make clear why we cannot avoid race-conscious remedies to historical racial subordination. Experience teaches that so long as markers of prior subordination remain they tend to retrench and provide the basis for renewed subordination.
We’ll explore some more recent examples and why this seems to be the case in the next two posts.
The twist, as I was taught, is that Mr. Plessy, seven-eighths white and therefore passing, volunteered his race to the conductor, having been recruited to challenge the constitutionality of the Louisiana statute. Alas, I cannot find in my old textbooks where I might have gathered that fact from.
My old notes tell me this comes from pages 72-73 of Prof. Michael Brodhead’s biography of Justice Brewer. Haven’t been able to find a copy of the book since I had to return it to the library back in law school.