American Legal History II
1. Should the Civil Rights Movement be considered a legal success? Utilize at least three cases to support your position.
2. How did the Equal Protection Clause evolve from 1870 to 2015?
3. Did the Reconstruction Era (From 1865 to 1883) help or hinder the ability of the 14th Amendment to bring about racial equality?
4. To what extent has the federal court system been successful in protecting against injustices committed at the state level? (Confine your answer to the years 1872 – 1954)
5. Did the 14th Amendment bring about a revolution in citizenship in America?
6. To what extent did Supreme Court decisions reflect the achievement of the goals of the Civil Rights Movement? Your response should incorporate at least THREE different Supreme Court decisions.
Excerptsfrom the Majority Opinion in Moore v. Dempsey (1923)
In Frank v. Mangum, it was recognized, of course, that if, in fact, a trial is dominated by a mob so that there is an actual interference with the course of justice, there is a departure from due process of law, and that, “if the State, supplying no corrective process, carries into execution a judgment of death or imprisonment based upon a verdict thus produced by mob domination, the State deprives the accused of his life or liberty without due process of law.”
We assume in accordance with that case that the corrective process supplied by the State may be so adequate that interference by habeas corpus ought not to be allowed. It certainly is true that mere mistakes of law in the course of a trial are not to be corrected in that way. But if the case is that the whole proceeding is a mask — that counsel, jury and judge were swept to the fatal end by an irresistible wave of public passion, and that the State Courts failed to correct the wrong; neither perfection in the machinery for correction nor the possibility that the trial court and counsel saw no other way of avoiding an immediate outbreak of the mob can prevent this Court from securing to the petitioners their constitutional rights.
We shall not say more concerning the corrective process afforded to the petitioners than that it does not seem to us sufficient to allow a Judge of the United States to escape the duty of examining the facts for himself when, if true as alleged, they make the trial absolutely void. We have confined the statement to facts admitted by the demurrer. We will not say that they cannot be met, but it appears to us unavoidable that the District Judge should find whether the facts alleged are true and whether they can be explained so far as to leave the state proceedings undisturbed.
Excerpts from the Majority Opinion in Powell v. Alabama (1932)
It is true that great and inexcusable delay in the enforcement of our criminal law is one of the grave evils of our time. Continuances are frequently granted for unnecessarily long periods of time, and delays incident to the disposition of motions for new trial and hearings upon appeal have come in many cases to be a distinct reproach to the administration of justice. The prompt disposition of criminal cases is to be commended and encouraged. But, in reaching that result, a defendant, charged with a serious crime, must not be stripped of his right to have sufficient time to advise with counsel and prepare his defense. To do that is not to proceed promptly in the calm spirit of regulated justice, but to go forward with the haste of the mob.
In the light of the facts outlined in the forepart of this opinion — the ignorance and illiteracy of the defendants, their youth, the circumstances of public hostility, the imprisonment and the close surveillance of the defendants by the military forces, the fact that their friends and families were all in other states and communication with them necessarily difficult, and, above all, that they stood in deadly peril of their lives — we think the failure of the trial court to give them reasonable time and opportunity to secure counsel was a clear denial of due process.
But passing that, and assuming their inability, even if opportunity had been given, to employ counsel, as the trial court evidently did assume, we are of opinion that, under the circumstances just stated, the necessity of counsel was so vital and imperative that the failure of the trial court to make an effective appointment of counsel was likewise a denial of due process within the meaning of the Fourteenth Amendment. Whether this would be so in other criminal prosecutions, or under other circumstances, we need not determine. All that it is necessary now to decide, as we do decide, is that, in a capital case, where the defendant is unable to employ counsel and is incapable adequately of making his own defense because of ignorance, feeble mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law, and that duty is not discharged by an assignment at such a time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case.
Excerpts from the Majority Opinion in Shelley v. Kraemer (1948)
Not only does the restriction seek to proscribe use and occupancy of the affected properties by members of the excluded class, but, as construed by the Missouri courts, the agreement requires that title of any person who uses his property in violation of the restriction shall be divested. The restriction of the covenant in the Michigan case seeks to bar occupancy by persons of the excluded class. It provides that “This property shall not be used or occupied by any person or persons except those of the Caucasian race.”
It should be observed that these covenants do not seek to proscribe any particular use of the affected properties. Use of the properties for residential occupancy, as such, is not forbidden. The restrictions of these agreements, rather, are directed toward a designated class of persons and seek to determine who may and who may not own or make use of the properties for residential purposes. The excluded class is defined wholly in terms of race or color; “simply that, and nothing more.”
It cannot be doubted that among the civil rights intended to be protected from discriminatory state action by the Fourteenth Amendment are the rights to acquire, enjoy, own and dispose of property. Equality in the enjoyment of property rights was regarded by the framers of that Amendment as an essential pre-condition to the realization of other basic civil rights and liberties which the Amendment was intended to guarantee.
We conclude, therefore, that the restrictive agreements, standing alone, cannot be regarded as violative of any rights guaranteed to petitioners by the Fourteenth Amendment. So long as the purposes of those agreements are effectuated by voluntary adherence to their terms, it would appear clear that there has been no action by the State, and the provisions of the Amendment have not been violated.
These are not cases, as has been suggested, in which the States have merely abstained from action, leaving private individuals free to impose such discriminations as they see fit. Rather, these are cases in which the States have made available to such individuals the full coercive power of government to deny to petitioners, on the grounds of race or color, the enjoyment of property rights in premises which petitioners are willing and financially able to acquire and which the grantors are willing to sell. The difference between judicial enforcement and nonenforcement of the restrictive covenants is the difference to petitioners between being denied rights of property available to other members of the community and being accorded full enjoyment of those rights on an equal footing.
The enforcement of the restrictive agreements by the state courts in these cases was directed pursuant to the common law policy of the States as formulated by those courts in earlier decisions.
In the Missouri case, enforcement of the covenant was directed in the first instance by the highest court of the State after the trial court had determined the agreement to be invalid for want of the requisite number of signatures. In the Michigan case, the order of enforcement by the trial court was affirmed by the highest state court. The judicial action in each case bears the clear and unmistakable imprimatur of the State. We have noted that previous decisions of this Court have established the proposition that judicial action is not immunized from the operation of the Fourteenth Amendment simply because it is taken pursuant to the state’s common law policy. Nor is the Amendment ineffective simply because the particular pattern of discrimination, which the State has enforced, was defined initially by the terms of a private agreement. State action, as that phrase is understood for the purposes of the Fourteenth Amendment, refers to exertions of state power in all forms. And when the effect of that action is to deny rights subject to the protection of the Fourteenth Amendment, it is the obligation of this Court to enforce the constitutional commands.
We hold that, in granting judicial enforcement of the restrictive agreements in these cases, the States have denied petitioners the equal protection of the laws, and that, therefore, the action of the state courts cannot stand. We have noted that freedom from discrimination by the States in the enjoyment of property rights was among the basic objectives sought to be effectuated by the framers of the Fourteenth Amendment. That such discrimination has occurred in these cases is clear. Because of the race or color of these petitioners, they have been denied rights of ownership or occupancy enjoyed as a matter of course by other citizens of different race or color.
The historical context in which the Fourteenth Amendment became a part of the Constitution should not be forgotten. Whatever else the framers sought to achieve, it is clear that the matter of primary concern was the establishment of equality in the enjoyment of basic civil and political rights and the preservation of those rights from discriminatory action on the part of the States based on considerations of race or color. Seventy-five years ago, this Court announced that the provisions of the Amendment are to be construed with this fundamental purpose in mind. Upon full consideration, we have concluded that, in these cases, the States have acted to deny petitioners the equal protection of the laws guaranteed by the Fourteenth Amendment. Having so decided, we find it unnecessary to consider whether petitioners have also been deprived of property without due process of law or denied privileges and immunities of citizens of the United States.
Excerpts from the Southern Manifesto (1956)
Though there has been no constitutional amendment or act of Congress changing this established legal principle almost a century old, the Supreme Court of the United States, with no legal basis for such action, undertook to exercise their naked judicial power and substituted their personal political and social ideas for the established law of the land.
This unwarranted exercise of power by the Court, contrary to the Constitution, is creating chaos and confusion in the States principally affected. It is destroying the amicable relations between the white and Negro races that have been created through 90 years of patient effort by the good people of both races. It has planted hatred and suspicion where there has been heretofore friendship and understanding.
Without regard to the consent of the governed, outside mediators are threatening immediate and revolutionary changes in our public schools systems. If done, this is certain to destroy the system of public education in some of the States.
With the gravest concern for the explosive and dangerous condition created by this decision and inflamed by outside meddlers:
We reaffirm our reliance on the Constitution as the fundamental law of the land.
We decry the Supreme Court’s encroachment on the rights reserved to the States and to the people, contrary to established law, and to the Constitution.
We commend the motives of those States which have declared the intention to resist forced integration by any lawful means.
Excerpts from the Majority Opinion in Cooper v. Aaron (1958)
As this case reaches us, it raises questions of the highest importance to the maintenance of our federal system of government. It necessarily involves a claim by the Governor and Legislature of a State that there is no duty on state officials to obey federal court orders resting on this Court’s considered interpretation of the United States Constitution. Specifically, it involves actions by the Governor and Legislature of Arkansas upon the premise that they are not bound by our holding in Brown v. Board of Education.
We come now to the aspect of the proceedings presently before us. On February 20, 1958, the School Board and the Superintendent of Schools filed a petition in the District Court seeking a postponement of their program for desegregation. Their position, in essence, was that, because of extreme public hostility, which they stated had been engendered largely by the official attitudes and actions of the Governor and the Legislature, the maintenance of a sound educational program at Central High School, with the Negro students in attendance, would be impossible. The Board therefore proposed that the Negro students already admitted to the school be withdrawn and sent to segregated schools, and that all further steps to carry out the Board’s desegregation program be postponed for a period later suggested by the Board to be two and one-half years.
Thus, law and order are not here to be preserved by depriving the Negro children of their constitutional rights. The record before us clearly establishes that the growth of the Board’s difficulties to a magnitude beyond its unaided power to control is the product of state action. Those difficulties, as counsel for the Board forthrightly conceded on the oral argument in this Court, can also be brought under control by state action.
The controlling legal principles are plain. The command of the Fourteenth Amendment is that no “State” shall deny to any person within its jurisdiction the equal protection of the laws.
“A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a State government, . . . denies or takes away the equal protection of the laws violates the constitutional inhibition; and, as he acts in the name and for the State, and is clothed with the State’s power, his act is that of the State. This must be so, or the constitutional prohibition has no meaning.”
The basic decision in Brown was unanimously reached by this Court only after the case had been briefed and twice argued and the issues had been given the most serious consideration. Since the first Brown opinion, three new Justices have come to the Court. They are at one with the Justices still on the Court who participated in that basic decision as to its correctness, and that decision is now unanimously reaffirmed. The principles announced in that decision and the obedience of the States to them, according to the command of the Constitution, are indispensable for the protection of the freedoms guaranteed by our fundamental charter for all of us. Our constitutional ideal of equal justice under law is thus made a living truth.
Excerpts from the Majority Opinion in Edwards v. South Carolina (1963)
It has long been established that these First Amendment freedoms are protected by the Fourteenth Amendment from invasion by the States.
he circumstances in this case reflect an exercise of these basic constitutional rights in their most pristine and classic form. The petitioners felt aggrieved by laws of South Carolina which allegedly “prohibited Negro privileges in this State.” They peaceably assembled at the site of the State Government, and there peaceably expressed their grievances “to the citizens of South Carolina, along with the Legislative Bodies of South Carolina.” Not until they were told by police officials that they must disperse on pain of arrest did they do more. Even then, they but sang patriotic and religious songs after one of their leaders had delivered a “religious harangue.” There was no violence or threat of violence on their part, or on the part of any member of the crowd watching them. Police protection was “ample.”
This, therefore, was a far cry from the situation in Feiner v. New York, where two policemen were faced with a crowd which was “pushing, shoving and milling around,” where at least one member of the crowd “threatened violence if the police did not act,” where “the crowd was pressing closer around petitioner and the officer, “and where “the speaker passes the bounds of argument or persuasion and undertakes incitement to riot.” And the record is barren of any evidence of “fighting words.”
These petitioners were convicted of an offense so generalized as to be, in the words of the South Carolina Supreme Court, “not susceptible of exact definition.” And they were convicted upon evidence which showed no more than that the opinions which they were peaceably expressing were sufficiently opposed to the views of the majority of the community to attract a crowd and necessitate police protection.
The Fourteenth Amendment does not permit a State to make criminal the peaceful expression of unpopular views.
Excerpts from the Majority Opinion in Heart of Atlanta Motel, Inc. v. U.S. (1964)
Since the commerce power was not relied on by the Government and was without support in the record, it is understandable that the Court narrowed its inquiry and excluded the Commerce Clause as a possible source of power. In any event, it is clear that such a limitation renders the opinion devoid of authority for the proposition that the Commerce Clause gives no power to Congress to regulate discriminatory practices now found substantially to affect interstate commerce. We therefore conclude that the Civil Rights Cases have no relevance to the basis of decision here, where the Act explicitly relies upon the commerce power and where the record is filled with testimony of obstructions and restraints resulting from the discriminations found to be existing.
We therefore conclude that the action of the Congress in the adoption of the Act as applied here to a motel which concededly serves interstate travelers is within the power granted it by the Commerce Clause of the Constitution, as interpreted by this Court for 140 years. It may be argued that Congress could have pursued other methods to eliminate the obstructions it found in interstate commerce caused by racial discrimination. But this is a matter of policy that rests entirely with the Congress, not with the courts. How obstructions in commerce may be removed — what means are to be employed — is within the sound and exclusive discretion of the Congress. It is subject only to one caveat — that the means chosen by it must be reasonably adapted to the end permitted by the Constitution. We cannot say that its choice here was not so adapted. The Constitution requires no more.
Excerpts from the Majority Opinion in Cox v. Louisiana (1965)
Our conclusion that the record does not support the contention that the students’ cheering, clapping and singing constituted a breach of the peace is confirmed by the fact that these were not relied on as a basis for conviction by the trial judge, who, rather, stated as his reason for convicting Cox of disturbing the peace that “[i]t must be recognized to be inherently dangerous and a breach of the peace to bring 1,500 people, colored people, down in the predominantly white business district in the City of Baton Rouge and congregate across the street from the courthouse and sing songs as described to me by the defendant as the CORE national anthem carrying lines such as ‘black and white together’ and to urge those 1,500 people to descend upon our lunch counters and sit there until they are served. That has to be an inherent breach of the peace, and our statute 14:103.1 has made it so.”
Finally, the State contends that the conviction should be sustained because of fear expressed by some of the state witnesses that “violence was about to erupt” because of the demonstration. It is virtually undisputed, however, that the students themselves were not violent, and threatened no violence. The fear of violence seems to have been based upon the reaction of the group of white citizens looking on from across the street. One state witness testified that “he felt the situation was getting out of hand” as, on the courthouse side of St. Louis Street, “were small knots or groups of white citizens who were muttering words, who seemed a little bit agitated.” A police officer stated that the reaction of the white crowd was not violent, but “was rumblings.” Others felt the atmosphere became “tense” because of “mutterings,” “grumbling,” and “jeering” from the white group. There is no indication, however, that any member of the white group threatened violence. And this small crowd, estimated at between 100 and 300, was separated from the students by “seventy-five to eighty” armed policemen, including “every available shift of the City Police,” the “Sheriff’s Office in full complement,” and “additional help from the State Police,” along with a “fire truck and the Fire Department.” As Inspector Trigg testified, they could have handled the crowd
This situation, like that in Edwards . . .”showed no more than that the opinions which . . . [the students] were peaceably expressing were sufficiently opposed to the views of the majority of the community to attract a crowd and necessitate police protection.”
From these decisions, certain clear principles emerge. The rights of free speech and assembly, while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time. The constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy. The control of travel on the streets is a clear example of governmental responsibility to insure this necessary order. A restriction in that relation, designed to promote the public convenience in the interest of all, and not susceptible to abuses of discriminatory application, cannot be disregarded by the attempted exercise of some civil right which, in other circumstances, would be entitled to protection. One would not be justified in ignoring the familiar red light because this was thought to be a means of social protest. Nor could one, contrary to traffic regulations, insist upon a street meeting in the middle of Times Square at the rush hour as a form of freedom of speech or assembly. Governmental authorities have the duty and responsibility to keep their streets open and available for movement. A group of demonstrators could not insist upon the right to cordon off street, or entrance to a public or private building, and allow no one to pass who did not agree to listen to their exhortations.
We emphatically reject the notion urged by appellant that the First and Fourteenth Amendments afford the same kind of freedom to those who would communicate ideas by conduct such as patrolling, marching, and picketing on streets and highways, as these amendments afford to those who communicate ideas by pure speech.
Excerpts from the Majority Opinion in Adderley v. Florida (1966)
Disturbed and upset by the arrest of their schoolmates the day before, a large number of Florida A. & M. students assembled on the school grounds and decided to march down to the county jail. Some apparently wanted to be put in jail too, along with the students already there. A group of around 200 marched from the school and arrived at the jail singing and clapping. They went directly to the jail-door entrance where they were met by a deputy sheriff, evidently surprised by their arrival. He asked them to move back, claiming they were blocking the entrance to the jail and fearing that they might attempt to enter the jail. They moved back part of the way, where they stood or sat, singing, clapping and dancing, on the jail driveway and on an adjacent grassy area upon the jail premises. This particular jail entrance and driveway were not normally used by the public, but by the sheriff’s department for transporting prisoners to and from the courts several blocks away and by commercial concerns for servicing the jail. Even after their partial retreat, the demonstrators continued to block vehicular passage over this driveway up to the entrance of the jail.
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Someone called the sheriff who was at the moment apparently conferring with one of the state court judges about incidents connected with prior arrests for demonstrations. When the sheriff returned to the jail, he immediately inquired if all was safe inside the jail and was told it was. He then engaged in a conversation with two of the leaders. He told them that they were trespassing upon jail property and that he would give them 10 minutes to leave or he would arrest them. Neither of the leaders did anything to disperse the crowd, and one of them told the sheriff that they wanted to get arrested. A local minister talked with some of the demonstrators and told them not to enter the jail, because they could not arrest themselves, but just to remain where they were. After about 10 minutes, the sheriff, in a voice loud enough to be heard by all, told the demonstrators that he was the legal custodian of the jail and its premises, that they were trespassing on county property in violation of the law, that they should all leave forthwith or he would arrest them, and that if they attempted to resist arrest, he would charge them with that as a separate offense. Some of the group then left. Others, including all petitioners, did not leave. Some of them sat down. In a few minutes, realizing that the remaining demonstrators had no intention of leaving, the sheriff ordered his deputies to surround those remaining on jail premises and placed them, 107 demonstrators, under arrest. The sheriff unequivocally testified that he did not arrest any persons other than those who were on the jail premises. Of the three petitioners testifying, two insisted that they were arrested before they had a chance to leave, had they wanted to, and one testified that she did not intend to leave. The sheriff again explicitly testified that he did not arrest any person who was attempting to leave.
Under the foregoing testimony the jury was authorized to find that the State had proven every essential element of the crime, as it was defined by the state court. That interpretation is, of course, binding on us, leaving only the question of whether conviction of the state offense, thus defined, unconstitutionally deprives petitioners of their rights to freedom of speech, press, assembly or petition. We hold it does not. The sheriff, as jail custodian, had power, as the state courts have here held, to direct that this large crowd of people get off the grounds. There is not a shred of evidence in this record that this power was exercised, or that its exercise was sanctioned by the lower courts, because the sheriff objected to what was being sung or said by the demonstrators or because he disagreed with the objectives of their protest. The record reveals that he objected only to their presence on that part of the jail grounds reserved for jail uses. There is no evidence at all that on any other occasion had similarly large groups of the public been permitted to gather on this portion of the jail grounds for any purpose.
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Nothing in the Constitution of the United States prevents Florida from even-handed enforcement of its general trespass statute against those refusing to obey the sheriff’s order to remove themselves from what amounted to the curtilage of the jailhouse.
Excerpts from the Majority Opinion in Loving v. Virginia (1967)
This case presents a constitutional question never addressed by this Court: whether a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment. For reasons which seem to us to reflect the central meaning of those constitutional commands, we conclude that these statutes cannot stand consistently with the Fourteenth Amendment.
There can be no question but that Virginia’s miscegenation statutes rest solely upon distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged in by members of different races. Over the years, this Court has consistently repudiated “[d]istinctions between citizens solely because of their ancestry” as being “odious to a free people whose institutions are founded upon the doctrine of equality.” Hirabayashi v. United States, 100 (1943). At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the “most rigid scrutiny,” Korematsu v. United States, 216 (1944), and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate.
There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy.
These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.
o deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.
These convictions must be reversed.
Excerptsfrom the Majority Opinion in the Slaughterhouse Cases (1873) by Justice Miller
It is that the distinction between citizenship of the United States and citizenship of a State is clearly recognized and established. Not only may a man be a citizen of the United States without being a citizen of a State, but an important element is necessary to convert the former into the latter. He must reside within the State to make him a citizen of it, but it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union.
It is quite clear, then, that there is a citizenship of the United States, and a citizenship of a State, which are distinct from each other, and which depend upon different characteristics or circumstances in the individual.
We think this distinction and its explicit recognition in this amendment of great weight in this argument, because the next paragraph of this same section, which is the one mainly relied on by the plaintiffs in error, speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several States. The argument, however, in favor of the plaintiffs rests wholly on the assumption that the citizenship is the same, and the privileges and immunities guaranteed by the clause are the same.
The language is, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” It is a little remarkable, if this clause was intended as a protection to the citizen of a State against the legislative power of his own State, that the word citizen of the State should be left out when it is so carefully used, and used in contradistinction to citizens of the United States in the very sentence which precedes it. It is too clear for argument that the change in phraseology was adopted understandingly and, with a purpose.
Of the privileges and immunities of the citizen of the United States, and of the privileges and immunities of the citizen of the State, and what they respectively are, we will presently consider; but we wish to state here that it is only the former which are placed by this clause under the protection of the Federal Constitution, and that the latter, whatever they may be, are not intended to have any additional protection by this paragraph of the amendment.
Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? And where it is declared that Congress Shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States?
We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.
Having shown that the privileges and immunities relied on in the argument are those which belong to citizens of the States as such, and that they are left to the State governments for security and protection, and not by this article placed under the special care of the Federal government, we may hold ourselves excused from defining the privileges and immunities of citizens of the United States which no State can abridge until some case involving those privileges may make it necessary to do so.
But lest it should be said that no such privileges and immunities are to he found if those we have been considering are excluded, we venture to suggest some which owe their existence to the Federal government, its national character, its Constitution, or its laws.
Excerpts from the Dissenting Opinion in the Slaughterhouse Cases (1873) by Justice Field
The provisions of the fourteenth amendment, which is properly a supplement to the thirteenth, cover, in my judgment, the case before us, and inhibit any legislation which confers special and exclusive privileges like these under consideration. The amendment was adopted to obviate objections which had been raised and pressed with great force to the validity of the Civil Rights Act, and to place the common rights of American citizens under the protection of the National government.
The first clause of the fourteenth amendment changes this whole subject, and removes it from the region of discussion and doubt. It recognizes in express terms, if it does not create, citizens of the United States, and it makes their citizenship dependent upon the place of their birth, or the fact of their adoption, and not upon the constitution or laws of any State or the condition of their ancestry. A citizen of a State is now only a citizen of the United States residing in that State. The fundamental rights, privileges, and immunities which belong to him as a free man and a free citizen now belong to him as a citizen of the United States, and are not dependent upon his citizenship of any State. The exercise of these rights and privileges, and the degree of enjoyment received from such exercise, are always more or less affected by the condition and the local institutions of the State, or city, or town where he resides. They are thus affected in a State by the wisdom of its laws, the ability of its officers, the efficiency of its magistrates, the education and morals of its people, and by many other considerations. This is a result which follows from the constitution of society, and can never be avoided, but in no other way can they be affected by the action of the State, or by the residence of the citizen therein. They do not derive their existence from its legislation, and cannot be destroyed by its power.
The amendment does not attempt to confer any new privileges or immunities upon citizens, or to enumerate or define those already existing. It assumes that there are such privileges and immunities which belong of right to citizens as such, and ordains that they shall not be abridged by State legislation. If this inhibition has no reference to privileges and immunities of this character, but only refers, as held by the majority of the court in their opinion, to such privileges and immunities as were before its adoption specially designated in the Constitution or necessarily implied as belonging to citizens of the United States, it was a vain and idle enactment, which accomplished nothing and most unnecessarily excited Congress and the people on its passage. With privileges and immunities thus designated or implied no State could ever have interfered by its laws, and no new constitutional provision was required to inhibit such interference. The supremacy of the Constitution and the laws of the United States always controlled any State legislation of that character. But if the amendment refers to the natural and inalienable rights which belong to all citizens, the inhibition has a profound significance and consequence.
Equality of right, with exemption from all disparaging and partial enactments, in the lawful pursuits of life, throughout the whole country, is the distinguishing privilege of citizens of the United States. To them, everywhere, all pursuits, all professions, all avocations are open without other restrictions than such as are imposed equally upon all others of the same age, sex, and condition. The State may prescribe such regulations for every pursuit and calling of life as will promote the public health, secure the good order and advance the general prosperity of society, but, when once prescribed, the pursuit or calling must be free to be followed by every citizen who is within the conditions designated, and will conform to the regulations. This is the fundamental idea upon which our institutions rest, and, unless adhered to in the legislation of the country, our government will be a republic only in name. The fourteenth amendment, in my judgment, makes it essential to the validity of the legislation of every State that this equality of right should be respected. How widely this equality has been departed from, how entirely rejected and trampled upon by the act of Louisiana, I have already shown. And it is to me a matter of profound regret that its validity is recognized by a majority of this court, for by it the right of free labor, one of the most sacred and imprescriptible rights of man, is violated.
Excerpts from the Majority Opinion in U.S. v. Cruikshank (1875) by Justice Waite
We have in our political system a government of the United States and a government of each of the several States. Each one of these governments is distinct from the others, and each has citizens of its own who owe it allegiance, and whose rights, within its jurisdiction, it must protect. The same person may be at the same time a citizen of the United States and a citizen of a State, but his rights of citizenship under one of these governments will be different from those he has under the other.
Citizens are the members of the political community to which they belong. They are the people who compose the community, and who, in their associated capacity, have established or submitted themselves to the dominion of a government for the promotion of their general welfare and the protection of their individual as well as their collective rights. In the formation of a government, the people may confer upon it such powers as they choose. The government, when so formed, may, and when called upon should, exercise all the powers it has for the protection of the rights of its citizens and the people within its jurisdiction; but it can exercise no other. The duty of a government to afford protection is limited always by the power it possesses for that purpose.
The fourteenth amendment prohibits a State from depriving any person of life, liberty, or property, without due process of law; but this adds nothing to the rights of one citizen as against another. It simply furnishes an additional guaranty against any encroachment by the States upon the fundamental rights which belong to every citizen as a member of society.
The fourth and twelfth counts charge the intent to have been to prevent and hinder the citizens named, who were of African descent and persons of color, in ‘the free exercise and enjoyment of their several right and privilege to the full and equal benefit of all laws and proceedings, then and there, before that time, enacted or ordained by the said State of Louisiana and by the United States; and then and there, at that time, being in force in the said State and District of Louisiana aforesaid, for the security of their respective persons and property, then and there, at that time enjoyed at and within said State and District of Louisiana by white persons, being citizens of said State of Louisiana and the United States, for the protection of the persons and property of said white citizens.’ There is no allegation that this was done because of the race or color of the persons conspired against. When stripped of its verbiage, the case as presented amounts to nothing more than that the defendants conspired to prevent certain citizens of the United States, being within the State of Louisiana, from enjoying the equal protection of the laws of the State and of the United States.
The fourteenth amendment prohibits a State from denying to any person within its jurisdiction the equal protection of the laws; but this provision does not, any more than the one which precedes it, and which we have just considered, add any thing to the rights which one citizen has under the Constitution against another. The equality of the rights of citizens is a principle of republicanism. Every republican government is in duty bound to protect all its citizens in the enjoyment of this principle, if within its power. That duty was originally assumed by the States; and it still remains there. The only obligation resting upon the United States is to see that the States do not deny the right. This the amendment guarantees, but no more. The power of the national government is limited to the enforcement of this guaranty.
Excerpts from the Majority Opinion in The Civil Rights Cases (1883) by Justice Bradley
Individual invasion of individual rights is not the subject-matter of the [Fourteenth] Amendment. It has a deeper and broader scope. It nullifies and makes void all state legislation, and state action of every kind, which impairs the privileges and immunities of citizens of the United States, or which injures them in life, liberty or property without due process of law, or which denies to any of them the equal protection of the laws. …
It does not invest congress with power to legislate upon subjects which are within the domain of state legislation; but to provide modes of relief against state legislation, or state action, of the kind referred to. It does not authorize congress to create a code of municipal law for the regulation of private rights; but to provide modes of redress against the operation of state laws, and the action of state officers, executive or judicial, when these are subversive of the fundamental rights specified in the amendment. Positive rights and privileges are undoubtedly secured by the fourteenth amendment; but they are secured by way of prohibition against state laws and state proceedings affecting those rights and privileges, and by power given to congress to legislate for the purpose of carrying such prohibition into effect; and such legislation must necessarily be predicated upon such supposed state laws or state proceedings, and be directed to the correction of their operation and effect.
… it would be running the slavery argument into the ground to make it apply to every act of discrimination which a person may see fit to make as to guests he will entertain, or as to the people he will take into his coach or cab or car; or admit to his concert or theater, or deal with in other matters of intercourse or business. Innkeepers and public carriers, by the laws of all the states, so far as we are aware, are bound, to the extent of their facilities, to furnish proper accommodation to all unobjectionable persons who in good faith apply for them. If the laws themselves make any unjust discrimination, amenable to the prohibitions of the fourteenth amendment, congress has full power to afford a remedy under that amendment and in accordance with it.
When a man has emerged from slavery, and by the aid of beneficent 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. There were thousands of free colored people in this country before the abolition of slavery, enjoying all the essential rights of life, liberty, and property the same as white citizens; yet no one, at that time, thought that it was any invasion of their personal status as freemen because they were not admitted to all the privileges enjoyed by white citizens, or because they were subjected to discriminations in the enjoyment of accommodations in inns, public conveyances, and places of amusement. Mere discriminations on account of race or color were not regarded as badges of slavery …
Excerpts from the Dissenting Opinion in The Civil Rights Cases (1883) by Justice Harlan
The opinion in these cases proceeds, as it seems to me, upon grounds entirely too narrow and artificial. The substance and spirit of the recent amendments of the constitution have been sacrificed by a subtle and ingenious verbal criticism. ‘It is not the words of the law but the internal sense of it that makes the law. The letter of the law is the body; the sense and reason of the law is the soul.’ Constitutional provisions, adopted in the interest of liberty, and for the purpose of securing, through national legislation, if need be, rights inhering in a state of freedom, and belonging to American citizenship, have been so construed as to defeat the ends the people desired to accomplish, which they attempted to accomplish, and which they supposed they had accomplished by changes in their fundamental law. By this I do not mean that the determination of these cases should have been materially controlled by considerations of mere expediency or policy. I mean only, in this form, to express an earnest conviction that the court has departed from the familiar rule requiring, in the interpretation of constitutional provisions, that full effect be given to the intent with which they were adopted.
The purpose of the first section of the act of congress of March 1, 1875, was to prevent race discrimination. It does not assume to define the general conditions and limitations under which inns, public conveyances, and places of public amusement may be conducted, but only declares that such conditions and limitations, whatever they may be, shall not be applied, by way of discrimination, on account of race, color, or previous condition of servitude. The second section provides a penalty against any one denying, or aiding or inciting the denial, to any citizen that equality of right given by the first section, except for reasons by law applicable to citizens of every race or color, and regardless of any previous condition of servitude
The colored citizens of other states, within the jurisdiction of that state, could claim, under the constitution, every privilege and immunity which that state secures to her white citizens. Otherwise, it would be in the power of any state, by discriminating class legislation against its own citizens of a particular race or color, to withhold from citizens of other states, belonging to that proscribed race, when within her limits, privileges and immunities of the character regarded by all courts as fundamental in citizenship; and that, too, when the constitutional guaranty is that the citizens of each state shall be entitled to ‘all privileges and immunities of citizens of the several states.’ No state may, by discrimination against a portion of its own citizens of a particular race, in respect of privileges and immunities fundamental in citizenship, impair the constitutional right of citizens of other states, of whatever race, to enjoy in that state all such privileges and immunities as are there accorded to her most favored citizens. A colored citizen of
Ohio
or Indiana, being in the jurisdiction of Tennessee, is entitled to enjoy any privilege or immunity, fundamental in citizenship, which is given to citizens of the white race in the latter state. It is not to be supposed that any one will controvert this proposition.
What I affirm is that no state, nor the officers of any state, nor any corporation or individual wielding power under state authority for the public benefit or the public convenience, can, consistently either with the freedom established by the fundamental law, or with that equality of civil rights which now belongs to every citizen, discriminate against freemen or citizens, in their civil rights, because of their race, or because they once labored under disabilities imposed upon them as a race. The rights which congress, by the act of 1875, endeavored to secure and protect are legal, not social, rights. The right, for instance, of a colored citizen to use the accommodations of a public highway upon the same terms as are permitted to white citizens is no more a social right than his right, under the law, to use the public streets of a city, or a town, or a turnpike road, or a public market, or a post-office, or his right to sit in a public building with others, of whatever race, for the purpose of hearing the political questions of the day discussed. Scarcely a day passes without our seeing in this court-room citizens of the white and black races sitting side by side watching the progress of our business. It would never occur to any one that the presence of a colored citizen in a court-house or court-room was an invasion of the social rights of white persons who may frequent such places. And yet such a suggestion would be quite as sound in law—I say it with all respect—as is the suggestion that the claim of a colored citizen to use, upon the same terms as is permitted to white citizens, the accommodations of public highways, or public inns, or places of public amusement, established under the license of the law, is an invasion of the social rights of the white race.
[…]
The one underlying purpose of congressional legislation has been to enable the black race to take the rank of mere citizens. The difficulty has been to compel a recognition of their legal right to take that rank, and to secure the enjoyment of privileges belonging, under the law, to them as a component part of the people for whose welfare and happiness government is ordained. At every step in this direction the nation has been confronted with class
tyranny
, which a contemporary English historian says is, of all tyrannies, the most intolerable, ‘for it is ubiquitous in its operation, and weighs, perhaps, most heavily on those whose obscurity or distance would withdraw them from the notice of a single despot.’ To-day it is the colored race which is denied, by corporations and individuals wielding public authority, rights fundamental in their freedom and citizenship. At some future time it may be some other race that will fall under the ban. If the constitutional amendments be enforced, according to the intent with which, as I conceive, they were adopted, there cannot be, in this
republic
, any class of human beings in practical subjection to another class, with power in the latter to dole out to the former just such privileges as they may choose to grant. The supreme law of the land has decreed that no authority shall be exercised in this country upon the basis of discrimination, in respect of civil rights, against freemen and citizens because of their race, color, or previous condition of servitude. To that decree—for the due enforcement of which, by appropriate legislation, congress has been invested with express power—every one must bow, whatever may have been, or whatever now are, his individual views as to the wisdom or policy, either of the recent changes in the fundamental law, or of the legislation which has been enacted to give them effect.
For the reasons stated I feel constrained to withhold my assent to the opinion of the court.
Excerpts from the Dissenting Opinion in Hurtado v. California (1884) by Justice Harlan
My brethren concede that there are principles of liberty and justice lying at the foundation of our civil and political institutions which no State can violate consistently with that due process of law required by the Fourteenth Amendment in proceedings involving life, liberty, or property. Some of these principles are enumerated in the opinion of the court. But, for reasons which do not impress my mind as satisfactory, they exclude from that enumeration the exemption from prosecution, by information, for a public offence involving life. By what authority is that exclusion made? Is it justified by the settled usages and modes of procedure existing under the common and statute law of England at the emigration of our ancestors, or at the foundation of our government? Does not the fact that the people of the original States required an amendment of the national Constitution, securing exemption from prosecution, for a capital offence, except upon the indictment or presentment of a grand jury, prove that, in their judgment, such an exemption was essential to protection against accusation and unfounded prosecution, and, therefore, was a fundamental principle in liberty and justice? By the side of that exemption, in the same amendment, is the declaration that no person shall be put twice in jeopardy for the same offence, nor compelled to criminate himself, nor shall private property be taken for public use without just compensation. Are not these principles fundamental in every free government established to maintain liberty and justice? If it be supposed that immunity from prosecution for a capital offence, except upon the presentment or indictment of a grand jury, was regarded at the common law any less secured by the law of the land, or any less valuable, or any less essential to due process of law, than the personal rights and immunities just enumerated, I take leave to say that no such distinction is authorized by any adjudged case, determined in England or in this country prior to the adoption of our Constitution, or by any elementary writer upon the principles established by Magna Charta and the statutes subsequently enacted in explanation or enlargement of its provisions.
But it is said that the framers of the Constitution did not suppose that due process of law necessarily required for a capital offence the institution and procedure of a grand jury, else they would not, in the same amendment, prohibiting the deprivation of life, liberty, or property, without due process of law, have made specific and express provision for a grand jury where the crime is capital or otherwise infamous; therefore, it is argued, the requirement by the Fourteenth Amendment of due process of law in all proceedings involving life, liberty, and property, without specific reference to grand juries in any case whatever, was not intended as a restriction upon the power which it is claimed the States previously had, so far as the express restrictions of the national Constitution are concerned, to dispense altogether with grand juries.
When the Fourteenth Amendment was adopted, all the States of the Union, some in terms, all substantially, declared, in their constitutions, that no person shall be deprived of life, liberty, or property, otherwise than “by the judgment of his peers, or the law of the land,” or “without due process of law.” When that Amendment was adopted, the constitution of each State, with few exceptions, contained, and still contains, a Bill of Rights enumerating the rights of life, liberty and property which cannot be impaired or destroyed by the legislative department. In some of them, as in those of Pennsylvania, Kentucky, Ohio, Alabama, Illinois, Arkansas, Florida, Mississippi, Missouri, and North Carolina, the rights so enumerated were declared to be embraced by “the general, great, and essential principles of liberty and free government;” in others, as in those of Connecticut, in 1818, and Kansas, in 1857, to be embraced by “the great and essential principles of free government.” Now it is a fact of momentous interest in this discussion that, when the Fourteenth Amendment was submitted and adopted, the Bill of Rights and the constitutions of twenty-seven States expressly forbade criminal prosecutions, by information, for capital cases;
[*]
while, in the remaining ten States, they were impliedly forbidden by a general clause declaring that no person should be deprived of life otherwise than by “the judgment of his peers or the law of the land,” or “without due process of law.
[**]
” It may be safely affirmed that, when that Amendment was adopted, a criminal prosecution, by information, for a crime involving life was not permitted in any one of the States composing the Union. So that the court, in this case, while conceding that the requirement[p558] of due process of law protects the fundamental principles of liberty and justice, adjudges, in effect, that an immunity or right, recognized at the common law to be essential to personal security, jealously guarded by our national Constitution against violation by any tribunal or body exercising authority under the general government, and expressly or impliedly recognized,when he Fourteenth Amendment was adopted in the Bill of Rights or Constitution of every State in the Union, is, yet, not a fundamental principle in governments established, as those of the States of the Union are, to secure to the citizen liberty and justice, and, therefore, is not involved in that due process of law required in proceedings conducted under the sanction of a State. My sense of duty constrains me to dissent from this interpretation of the supreme law of the land.
Excerpts from the Majority Opinion in Lochner v. NY (1905) by Justice Peckham
The question whether this act is valid as a labor law, pure and simple, may be dismissed in a few words. There is no reasonable ground for interfering with the liberty of person or the right of free contract by determining the hours of labor in the occupation of a baker. There is no contention that bakers as a class are not equal in intelligence and capacity to men in other trades or manual occupations, or that they are able to assert their rights and care for themselves without the protecting arm of the State, interfering with their independence of judgment and of action. They are in no sense wards of the State. Viewed in the light of a purely labor law, with no reference whatever to the question of health, we think that a law like the one before us involves neither the safety, the morals, nor the welfare of the public, and that the interest of the public is not in the slightest degree affected by such an act. The law must be upheld, if at all, as a law pertaining to the health of the individual engaged in the occupation of a baker. It does not affect any other portion of the public than those who are engaged in that occupation. Clean and wholesome bread does not depend upon whether the baker works but ten hours per day or only sixty hours a week. The limitation of the hours of labor does not come within the police power on that ground.
It is a question of which of two powers or rights shall prevail — the power of the State to legislate or the right of the individual to liberty of person and freedom of contract. The mere assertion that the subject relates though but in a remote degree to the public health does not necessarily render the enactment valid. The act must have a more direct relation, as a means to an end, and the end itself must be appropriate and legitimate, before an act can be held to be valid which interferes with the general right of an individual to be free in his person and in his power to contract in relation to his own labor.
We think that there can be no fair doubt that the trade of a baker, in and of itself, is not an unhealthy one to that degree which would authorize the legislature to interfere with the right to labor, and with the right of free contract on the part of the individual, either as employer or employee. In looking through statistics regarding all trades and occupations, it may be true that the trade of a baker does not appear to be as healthy as some other trades, and is also vastly more healthy than still others. To the common understanding, the trade of a baker has never been regarded as an unhealthy one. Very likely, physicians would not recommend the exercise of that or of any other trade as a remedy for ill health. Some occupations are more healthy than others, but we think there are none which might not come under the power of the legislature to supervise and control the hours of working therein if the mere fact that the occupation is not absolutely and perfectly healthy is to confer that right upon the legislative department of the Government. It might be safely affirmed that almost all occupations more or less affect the health. There must be more than the mere fact of the possible existence of some small amount of unhealthiness to warrant legislative interference with liberty. It is unfortunately true that labor, even in any department, may possibly carry with it the seeds of unhealthiness. But are we all, on that account, at the mercy of legislative majorities? A printer, a tinsmith, a locksmith, a carpenter, a cabinetmaker, a dry goods clerk, a bank’s, a lawyer’s or a physician’s clerk, or a clerk in almost any kind of business, would all come under the power of the legislature on this assumption. No trade, no occupation, no mode of earning one’s living could escape this all-pervading power, and the acts of the legislature in limiting the hours of labor in all employments would be valid although such limitation might seriously cripple the ability of the laborer to support himself and his family. In our large cities there are many buildings into which the sun penetrates for but a short time in each day, and these buildings are occupied by people carrying on the business of bankers, brokers, lawyers, real estate, and many other kinds of business, aided by many clerks, messengers, and other employs. Upon the assumption of the validity of this act under review, it is not possible to say that an act prohibiting lawyers’ or bank clerks, or others from contracting to labor for their employers more than eight hours a day would be invalid. It might be said that it is unhealthy to work more than that number of hours in an apartment lighted by artificial light during the working hours of the day; that the occupation of the bank clerk, the lawyer’s clerk, the real estate clerk, or the broker’s clerk in such offices is therefore unhealthy, and the legislature, in its paternal wisdom, must therefore have the right to legislate on the subject of, and to limit the hours for, such labor, and, if it exercises that power and its validity be questioned, it is sufficient to say it has reference to the public health; it has reference to the health of the employees condemned to labor day after day in buildings where the sun never shines; it is a health law, and therefore it is valid, and cannot be questioned by the courts.
Excerpts from the Dissenting Opinion in Lochner v. NY (1905) by Justice Harlan
It is plain that this statute was enacted in order to protect the physical wellbeing of those who work in bakery and confectionery establishments. It may be that the statute had its origin, in part, in the belief that employers and employees in such establishments were not upon an equal footing, and that the necessities of the latter often compelled them to submit to such exactions as unduly taxed their strength. Be this as it may, the statute must be taken as expressing the belief of the people of New York that, as a general rule, and in the case of the average man, labor in excess of sixty hours during a week in such establishments may endanger the health of those who thus labor. Whether or not this be wise legislation it is not the province of the court to inquire. Under our systems of government, the courts are not concerned with the wisdom or policy of legislation. So that, in determining the question of power to interfere with liberty of contract, the court may inquire whether the means devised by the State are germane to an end which may be lawfully accomplished and have a real or substantial relation to the protection of health, as involved in the daily work of the persons, male and female, engaged in bakery and confectionery establishments. But when this inquiry is entered upon, I find it impossible, in view of common experience, to say that there is here no real or substantial relation between the means employed by the State and the end sought to be accomplished by its legislation.
I take leave to say that the New York statute, in the particulars here involved, cannot be held to be in conflict with the Fourteenth Amendment without enlarging the scope of the Amendment far beyond its original purpose and without bringing under the supervision of this court matters which have been supposed to belong exclusively to the legislative departments of the several States when exerting their conceded power to guard the health and safety of their citizens by such regulations as they in their wisdom deem best. Health laws of every description constitute, said Chief Justice Marshall, a part of that mass of legislation which
embraces everything within the territory of a State not surrendered to the General Government; all which can be most advantageously exercised by the States themselves.
Excerpts from the Majority Opinion in Gitlow v. New York (1925) by Justice Sanford
The Manifesto, plainly, is neither the statement of abstract doctrine nor, as suggested by counsel, mere prediction that industrial disturbances and revolutionary mass strikes will result spontaneously in an inevitable process of evolution in the economic system. It advocates and urges in fervent language mass action which shall progressively foment industrial disturbances and, through political mass strikes and revolutionary mass action, overthrow and destroy organized parliamentary government. It concludes with a call to action in these words:
The proletariat revolution and the Communist reconstruction of society — the struggle for these — is now indispensable. . . . The Communist International calls the proletariat of the world to the final struggle!
This is not the expression of philosophical abstraction, the mere prediction of future events; it is the language of direct incitement.
The means advocated for bringing about the destruction of organized parliamentary government, namely, mass industrial revolts usurping the functions of municipal government, political mass strikes directed against the parliamentary state, and revolutionary mass action for its final destruction, necessarily imply the use of force and violence, and, in their essential nature, are inherently unlawful in a constitutional government of law and order. That the jury were warranted in finding that the Manifesto advocated not merely the abstract doctrine of overthrowing organized government by force, violence and unlawful means, but action to that end, is clear.
For present purposes, we may and do assume that freedom of speech and of the press which are protected by the First Amendment from abridgment by Congress are among the fundamental personal rights and “liberties” protected by the due process clause of the Fourteenth Amendment from impairment by the States. We do not regard the incidental statement . . that the Fourteenth Amendment imposes no restrictions on the States concerning freedom of speech, as determinative of this question.
It is a fundamental principle, long established, that the freedom of speech and of the press which is secured by the Constitution does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom.
The defendant’s brief does not separately discuss any of the rulings of the trial court. It is only necessary to say that, applying the general rules already stated, we find that none of them involved any invasion of the constitutional rights of the defendant. It was not necessary, within the meaning of.the statute, that the defendant should have advocated “some definite or immediate act or acts” of force, violence or unlawfulness. It was sufficient if such acts were advocated in general terms, and it was not essential that their immediate execution should have been advocated. Nor was it necessary that the language should have been “reasonably and ordinarily calculated to incite certain persons” to acts of force, violence or unlawfulness. The advocacy need not be addressed to specific persons. Thus, the publication and circulation of a newspaper article may be an encouragement or endeavor to persuade to murder, although not addressed to any person in particular
Excerptsfrom the Majority Opinion in the Dred Scott Case (1857) by Chief Justice Taney
The question is simply this: Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution….
We think [people of African ancestry] are not, and that they are not included, and were not intended to be included, under the word “citizens” in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States…
For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.
The act of Congress, upon which the plaintiff relies, declares that slavery and involuntary servitude, except as a punishment for crime, shall be forever prohibited in all that part of the territory ceded by France, under the name of Louisiana, which lies northand not included within the limits of Missouri. And the difficulty which meets us at the threshold of this part of the inquiry is, whether Congress was authorized to pass this law under any of the powers granted to it by the Constitution; for if the authority is not given by that instrument, it is the duty of this court to declare it void and inoperative, and incapable of conferring freedom upon any one who is held as a slave under the laws of any one of the States.
The power to expand the territory of the United States by the admission of new states is plainly given. But the power of Congress over the person or property of a citizen [is] regulated and plainly defined by the Constitution itself. And when the Territory becomes a part of the United States, the Federal Government enters upon it with its powers over the citizen strictly defined, and limited by the Constitution.It has no power of any kind beyond it; and it cannot, when it enters a Territory of the United States, put off its character, and assume discretionary or despotic powers which the Constitution has denied to it.
. . .
[T]he rights of private property have been guarded with . . . care. Thus the rights of property are united with the rights of person, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person shall be deprived of life, liberty, and property, without due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law.
Excerpts from the Majority Opinion in Elk v. Wilkins (1884) by Justice Gray
The petition . . . clearly implies that he was born a member of one of the Indian tribes within the limits of the United States which still exists and is recognized as a tribe by the government of the United States. Though the plaintiff alleges that he ‘had fully and completely surrendered himself to the jurisdiction of the United States,’ he does not allege that the United States accepted his surrender, or that he has ever been naturalized, or taxed, or in any way recognized or treated as a citizen by the state or by the United States. Nor is it contended by his counsel that there is any statute or treaty that makes him a citizen.
The Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign states; but they were alien nations, distinct political communities, with whom the United States might and habitually did deal, as they thought fit, either through treaties made by the president and senate, or through acts of congress in the ordinary forms of legislation.
Chief Justice TANEY, in the passage cited for the plaintiff from his opinion in Scott v. Sandford, 19 How. 393, 404, did not affirm or imply that either the Indian tribes, or individual members of those tribes, had the right, beyond other foreigners, to become citizens of their own will, without being naturalized by the United States. His words were: ‘They’ (the Indian tribes) ‘may without doubt, like the subjects of any foreign government, be naturalized by the authority of congress, and become citizens of a state, and of the United States; and if an individual should leave his nation or tribe, and take up his abode among the white population, he would be entitled to all the rights and privileges which would belong to an emigrant from any other foreign people.’ But an emigrant from any foreign state cannot become a citizen of the United States without a formal renunciation of his old allegiance, and an acceptance by the United States of that renunciation through such form of naturalization as may be required law.
The main object of the opening sentence of the fourteenth amendment was to settle the question, upon which there had been a difference of opinion throughout the country and in this court, as to the citizenship of free negroes, (Scott v. Sandford, 19 How. 393;) and to put it beyond doubt that all persons, white or black, and whether formerly slaves or not, born or naturalized in the United States, and owing no allegiance to any alien power, should be citizens of the United States and of the state in which they reside.
Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards, except by being naturalized, either individually, as by proceedings under the naturalization acts; or collectively, as by the force of a treaty by which foreign territory is acquired. Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indiana tribes, (an alien though dependent power,) although in a geographical sense born in the United States, are no more ‘born in the United States and subject to the jurisdiction thereof,’ within the meaning of the first section of the fourteenth amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations. This view is confirmed by the second section of the fourteenth amendment, which provides that ‘representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.’ Slavery having been abolished, and the persons formerly held as slaves made citizens, this clauses fixing the apportionment of representatives has abrogated so much of the corresponding clause of the original constitution as counted only three-fifths of such persons. But Indians not taxed are still excluded from the count, for the reason that they are not citizens. Their absolute exclusion from the basis of representation, in which all other persons are now included, is wholly inconsistent with their being considered citizens.
Since the ratification of the fourteenth amendment, congress has passed several acts for naturalizing Indians of certain tribes, which would have been superfluous if they were, or might become without any action of the government, citizens of the United States.
‘But an Indian cannot make himself a citizen of the United States without the consent and co-operation of the government. The fact that he has abandoned his nomadic life or tribal relations, and adopted the habits and manners of civilized people, may be a good reason why he should be made a citizen of the United States, but does not of itself make him one. To be a citizen of the United States is a political privilege which no one, not born to, can assume without its consent in some form.
The plaintiff, not being a citizen of the United States under the fourteenth amendment of the constitution, has been deprived of no right secured by the fifteenth amendment, and cannot maintain this action. Judgment affirmed.
Excerpts from the Dissenting Opinion in Elk v. Wilkins (1884) by Justice Harlan
At the adoption of the constitution there were, in many of the states, Indians, not members of any tribe, who constituted a part of the people for whose benefit the state governments were established. This is apparent from that clause of article 1, § 3, which requires, in the apportionment of representatives and direct taxes among the several states ‘according to their respective numbers,’ the exclusion of ‘Indians not taxed.’ This implies that there were, at that time, in the United States, Indians who were taxed; that is, were subject to taxation by the laws of the state of which they were residents. Indians not taxed were those who held tribal relations, and therefore were not subject to the authority of any state, and were subject only to the authority of the United States, under the power conferred upon congress in reference to Indian tribes in this country. The same provision is retained in the fourteenth amendment.
By the act of April 9, 1866, entitled ‘An act to protect all persons in the United States in their civil rights, and furnish means for their vindication,’ (14 St. 27,) it is provided that ‘all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.’ This, so far as we are aware, is the first general enactment making persons of the Indian race citizens of the United States. Numerous statutes and treaties previously provided for all the individual members of particular Indian tribes becoming, in certain contingencies, citizens of the United States. But the act of 1866 reached Indians not in tribal relations. Beyond question, by that act, national citizenship was conferred directly upon all persons in this country, of whatever race, (excluding only ‘Indians not taxed,’) who were born within the territorial limits of the United States, and were not subject to any foreign power.
The entire debate (Over the Civil Rights Act of 1866) shows, with singular clearness, indeed, with absolute certainty, that no senator who participated in it, whether in favor of or in opposition to the measure, doubted that the bill as passed admitted, and was intended to admit, to national citizenship Indians who abandoned their tribal relations and became residents of one of the states or territories, within the full jurisdiction of the United States. It was so interpreted by President Johnson, who, in his veto message, said: ‘By the first section of the bill all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States. This provision comprehends the Chinese of the Pacific states, Indians subject to taxation, the people called gypsies, as well as the entire race designated as blacks, persons of color, negroes, mulattoes, and persons of African blood. Every individual of those races, born in the United States, is, by the bill, made a citizen of the United States.’
If it be also said that, since the adoption of the fourteenth amendment, congress has enacted statutes providing for the citizenship of Indians, our answer is that those statutes had reference to tribes, the members of which could not, while they continued in tribal relations, acquire the citizenship granted by the fourteenth amendment. Those statutes did not deal with individual Indians who had severed their tribal connections and were residents within the states of the Union, under the complete jurisdiction of the United States. There is nothing in the history of the adoption of the fourteenth amendment which, in our opinion, justifies the conclusion that only those Indians are included in its grant of citizenship who were, at the time of their birth, subject to the complete jurisdiction of the United States. As already stated, according to the doctrines of the court, in this case,—if we do not wholly misapprehend the effect of its decision,—the plaintiff, if born while his parents were members of an Indian tribe, would not be embraced by the amendment even had he been, at the time it was adopted, a permanent resident of one of the states, subject to taxation, and, in fact, paying property and personal taxes, to the full extent required of the white race in the same state.
It seems to us that the fourteenth amendment, in so far as it was intended to confer national citizenship upon persons of the Indian race, is robbed of its vital force by a construction which excludes from such citizenship those who, although born in tribal relations, are within the complete jurisdiction of the United States. There were, in some of our states and territories at the time the amendment was submitted by congress, many Indians who had finally left their tribes and come within the complete jurisdiction of the United States. They were as fully prepared for citizenship as were or are vast numbers of the white and colored races in the same localities. Is it conceivable that the statesmen who framed, the congress which submitted, and the people who adopted that amendment intended to confer citizenship, national and state, upon the entire population in this country of African descent, (the larger part of which was shortly before held in slavery,) and, by the same constitutional provision, to exclude from such citizenship Indians who had never been in slavery, and who, by becoming bona fide residents of states and territories within the complete jurisdiction of the United States, had evinced a purpose to abandon their former mode of life, and become a part of the people of the United States? If this question be answered in the negative, as we think it must be, then we are justified in withholding our assent to the doctrine which excludes the plaintiff from the body of citizens of the United States upon the ground that his parents were, when he was born, members of an Indian tribe; for, if he can be excluded upon any such ground, it must necessarily follow that the fourteenth amendment did not grant citizenship even to Indians who, although born in tribal relations, were, at its adoption, severed from their tribes, subject to the complete jurisdiction as well of the United States as of the state or territory in which they resided.
Excerpts from the Majority Opinion in U.S. v. Wong Kim Ark (1898) by Justice Gray
The Fourteenth Amendment of the Constitution, in the declaration that
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,
contemplates two sources of citizenship, and two only: birth and naturalization. Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law. But citizenship by birth is established by the mere fact of birth under the circumstances defined in the Constitution. Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization. A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case[p703] of the annexation of foreign territory, or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts.
The power of naturalization, vested in Congress by the Constitution, is a power to confer citizenship, not a power to take it away. “A naturalized citizen,” said Chief Justice Marshall,
becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the Constitution, on the footing of a native. The Constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the National Legislature is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it so far as respects the individual. The Constitution then takes him up, and, among other rights, extends to him the capacity of suing in the courts of the United States, precisely under the same circumstances under which a native might sue.
Osborn v. United States Bank, 9 Wheat. 738, 827. Congress having no power to abridge the rights conferred by the Constitution upon those who have become naturalized citizens by virtue of acts of Congress, a fortiori no act or omission of Congress, as to providing for the naturalization of parents or children of a particular race, can affect citizenship acquired as a birthright, by virtue of the Constitution itself, without any aid of legislation. The Fourteenth Amendment, while it leaves the power where it was before, in Congress, to regulate naturalization, has conferred no authority upon Congress to restrict the effect of birth, declared by the Constitution to constitute a sufficient and complete right to citizenship.
No one doubts that the Amendment, as soon as it was promulgated, applied to persons of African descent born in the United States, wherever the birthplace of their parents might have been, and yet, for two years afterwards, there was no statute authorizing persons of that race to be naturalized. If the omission or the refusal of Congress to permit certain[p704] classes of persons to be made citizens by naturalization could be allowed the effect of correspondingly restricting the classes of persons who should become citizens.by birth, it would be in the power of Congress, at any time, by striking negroes out of the naturalization laws, and limiting those laws, as they were formerly limited, to white persons only, to defeat the main purpose of the Constitutional Amendment.
The fact, therefore, that acts of Congress or treaties have not permitted Chinese persons born out of this country to become citizens by naturalization, cannot exclude Chinese persons born in this country from the operation of the broad and clear words of the Constitution, “All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
VII. Upon the facts agreed in this case, the American citizenship which Wong Kim Ark acquired by birth within the United States has not been lost or taken away by anything happening since his birth. No doubt he might himself, after coming of age, renounce this citizenship and become a citizen of the country of his parents, or of any other country; for, by our law, as solemnly declared by Congress, “the right of expatriation is a natural and inherent right of all people,” and
any declaration, instruction, opinion, order or direction of any officer of the United States which denies, restricts, impairs or questions the right of expatriation, is declared inconsistent with the fundamental principles of the Republic.
. . .
Whether any act of himself or of his parents during his minority could have the same effect is at least doubtful. But it would be out of place to pursue that inquiry, inasmuch as it is expressly agreed that his residence has always been in the United States, and not elsewhere; that each of his temporary visits to China, the one for some months when he was about seventeen years old, and the other for something like a year about the time of his coming of age, was made with the intention of returning, and was followed by his actual return, to the United States, and
that said Wong Kim Ark has not, either by himself or his parents acting[p705] for him, ever renounced his allegiance to the United States, and that he has never done or committed any act or thing to exclude him therefrom.
The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.
Excerpts from the Majority Opinion in Downes v. Bidwell by Justice Brown (1901)
Excerpts from the Dissenting Opinion in Downes v. Bidwell by Justice Harlan (1901)
In the opinion to which I have referred it is suggested that conditions may arise when the annexation of distant possessions may be desirable. ‘If,’ says that opinion, ‘those possessions are inhabited by alien races, differing from us in religion, customs, laws, methods of taxation, and modes of thought, the administration of government and justice, according to Anglo-Saxon principles, may for a time be impossible; and the question at once arises whether large concessions ought not to be made for a time, that ultimately our own theories may be carried out, and the blessings of a free government under the Constitution extended to them. We decline to hold that there is anything in the Constitution to forbid such action.’ In my judgment, the Constitution does not sustain any such theory of our governmental system. Whether a particular race will or will not assimilate with our people, and whether they can or cannot with safety to our institutions be brought within the operation of the Constitution, is a matter to be thought of when it is proposed to acquire their territory by treaty. A mistake in the acquisition of territory, although such acquisition seemed at the time to be necessary, cannot be made the ground for violating the Constitution or refusing to give full effect to its provisions. The Constitution is not to be obeyed or disobeyed as the circumstances of a particular crisis in our history may suggest the one or the other course to be pursued. The People have decreed that it shall be the supreme law of the land at all times. When the acquisition of territory becomes complete, by cession, the Constitution necessarily becomes the supreme law of such new territory, and no power exists in any department of the government to make ‘concessions’ that are inconsistent with its provisions. The authority to make such concessions implies the existence in Congress of power to declare that constitutional provisions may be ignored under special or [182 U.S. 244, 385] embarrassing circumstances. No such dispensing power exists in any branch of our government. The Constitution is supreme over every foot of territory, wherever situated, under the jurisdiction of the United States, and its full operation cannot be stayed by any branch of the government in order to meet what some may suppose to be extraordinary emergencies. If the Constitution is in force in any territory, it is in force there for every purpose embraced by the objects for which the government was ordained. Its authority cannot be displaced by concessions, even if it be true, as asserted in argument in some of these cases, that if the tariff act took effect in the Philippines of its own force, the inhabitants of Mandanao, who live on imported rice, would starve, because the import duty is many fold more than the ordinary cost of the grain to them. The meaning of the Constitution cannot depend upon accidental circumstances arising out of the products of other countries or of this country. We cannot violate the Constitution in order to serve particular interests in our own or in foreign lands. Even this court, with its tremendous power, must heed the mandate of the Constitution. No one in official station, to whatever department of the government he belongs, can disobey its commands without violating the obligation of the oath he has taken. By whomsoever and wherever power is exercised in the name and under the authority of the United States, or of any branch of its government, the validity or invalidity of that which is done must be determined by the Constitution.
It would seem, according to the theories of some, that even if Porto Rico is in and of the United States for many important purposes, it is yet not a part of this country with the privilege of protesting against a rule of taxation which Congress is expressly forbidden by the Constitution from adopting as to any part of the ‘United States.’ And this result comes from the failure of Congress to use the word ‘incorporate’ in the Foraker act, although by the same act all power exercised by the civil government in Porto Rico is by authority of the United States, and although this court has been given jurisdiction by writ of error or appeal to re-examine the final judgments of the district court of the United States established by Congress for that territory. Suppose Congress had passed this act: ‘Be it enacted by the Senate and House of Representatives in Congress assembled, That Porto Rico be and is hereby incorporated into the United States as a territory,’ would such a statute have enlarged the scope or effect of the Foraker act? Would such a statute have accomplished more than the Foraker act has done? Indeed, would not such legislation have been regarded as most extraordinary as well as unnecessary?
I am constrained to say that this idea of ‘incorporation’ has some occult meaning which my mind does not apprehend. It is enveloped in some mystery which I am unable to unravel.
In my opinion Porto Rico became, at least after the ratification of the treaty with Spain, a part of and subject to the jurisdiction of the United States in respect of all its territory and people, and that Congress could not thereafter impose any duty, impost, or excise with respect to that island and its inhabitants, which departed from the rule of uniformity established by the Constitution.
Excerpts from the Decision in Regan v. King by Judge Adolphus St. Sure (1943)
ST. SURE, District Judge.
Plaintiff, a citizen of the United States and of the State of California, a registered voter of San Francisco, sues the Registrar of Voters of the City and County of San Francisco, alleging that more than “2600 Japanese of the full blood born in the United States and the State of California, of alien parents born in the Empire of Japan,” are erroneously registered to vote in San Francisco. He further alleges that his rights and privileges as an elector, secured to him by law, are impaired by permitting ineligible persons [Japanese] to exercise the rights and privileges of electors of the State of California. He prays that the Registrar be directed to strike the names of all Japanese from the register of voters on the ground that they are enemy aliens, citizens of Japan, and therefore ineligible to citizenship and the right to vote.
Defendant Registrar answers that Japanese born here are citizens of the United States and as such are entitled to be registered as voters, and asks to be dismissed with his costs.
This case is exceptional because the sole question it presents to this court is one which has been definitely decided by the United States Supreme Court: Is a person of the Japanese race, born within the United States, a citizen? The question has been answered in the affirmative in United States v. Wong Kim Ark,
169 U.S. 649
, 18 S. Ct. 456, 42 L. Ed. 890; Morrison v. California,
291 U.S. 82
, 54 S. Ct. 281, 78 L. Ed. 664; and Perkins v. Elg,
307 U.S. 325
, 59 S. Ct. 884, 83 L. Ed. 1320.
Counsel for plaintiff frankly stated that he was asking this court to overrule the leading case of United States v. Wong Kim Ark, supra, because he believed the decision was erroneous. Since the decision was rendered it has been twice cited with approval by the Supreme Court in Morrison v. California, supra, and in Perkins v. Elg, supra. In the Morrison case Justice Cardozo, speaking for the Court, said [
291 U.S. 82
, 54 S. Ct. 283, 78 L.Ed. 664]: “A person of the Japanese race is a citizen of the United States if he was born within the United States.” In the Perkins case, Chief Justice Hughes delivering the opinion, it was held that a child born here of alien parentage becomes a citizen of the United States.
It is unnecessary to discuss the arguments of counsel. In my opinion the law is settled by the decisions of the Supreme Court just alluded to, and the action will be dismissed, with costs to the defendant.
American Society for Legal History
Bringing the Law Back into the History of the Civil Rights Movement
Author(s):
KENNETH W. MACK
Source: Law and History Review, Vol. 27, No. 3 (Fall 2009), pp. 657-669
Published by: American Society for Legal History
Stable URL: https://www.jstor.org/stable/40646061
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Bringing the Law Back into the History
of the Civil Rights Movement
KENNETH W. MACK
It is a pleasure to comment on Nancy MacLean’s hugely important book
Freedom is Not Enough: The Opening of the American Workplace1 as an
example of what I might call “bringing the law back in” to the history of
the civil rights movement. A generation ago, the idea that law needed to
be introduced into this history would have seemed nonsensical. At that
time, law provided one of the central touchstones in the historical nar-
rative of the struggle for racial equality in American life. Scholarship in
this area built on C. Vann Woodward’s pioneering work on the rise of Jim
Crow, which itself was written shortly after Woodward’s participation in
the Brown v. Board of Education litigation.2 The dominant narrative began
with the legal construction of Jim Crow in the late nineteenth century and
continued with the founding of the NAACP. Other actors came along at
various points in the story, prominent among them New Deal-era racial
liberals, World War II-era activists, midcentury social scientists, Southern
civil rights leaders and movements, and eventually black power. The end
point was marked by the litigation and legislative victories of the 1950s
and ’60s, which finally wrote back into law what had been taken away by
segregationist white Southerners and a compliant Supreme Court in the
1 . Nancy MacLean, Freedom is Not Enough: The Opening of the American Workplace
(Cambridge: Harvard University Press, 2006).
2. C. Vann Woodward, The Strange Career of Jim Crow, 3rd rev. ed. (New York: Oxford
University Press, 1974).
Kenneth W. Mack is a professor of law at Harvard Law School
Law and History Review Fall 2009, Vol. 27, No. 3
© 2009 by the Board of Trustees of the University of Illinois
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658 Law and History Review, Fall 2009
late nineteenth century. The implicit methodological take on law was that
state and federal statutes, as well as court decisions, provided an impor-
tant impetus, or at the very least a validation, for racial change – first for
white Southerners as they created the Jim Crow legal regime and later for
segregation’s opponents as they reinscribed racial equality onto the core
narrative of American life.3
In the last generation, however, this central preoccupation with law has
come under attack. In the social history of the civil rights movement, the
new model that emerged trained its sights on community-level protest and
organization. Its central project was to decenter the NAACP, the Supreme
Court, Congress, Martin Luther King, Jr., and the Congress of Racial Equal-
ity (CORE) as the central players in the story. Instead, scholars focused on
the ways that activists and local actors built up movements and alliances
outside the bounds of, or in conflict with, the figures and organizations
who once dominated the story.4 Of course, there were other new brands
of civil rights scholarship, inflected through labor history, international
history, and the history of white Northerners and Southerners during the
civil rights era. In taking on the old scholarship on its own turf, however,
local studies – particularly those of the Southern movement – often set the
tone. If there was a methodological take on law in the new histories, it was
often that law was epiphenomenal, not that important to local movement
actors, and sometimes even corrosive of local community organizing.5
3. See, for example, Harvard Sitkoff, The Struggle for Black Equality, 1954-1980 (New
York: Farar, Straus and Giroux; Hill and Wang, 1981); Woodward, Strange Career.
4. See, for example, Charles M. Payne, I’ve Got the Light of Freedom: The Organizing
Tradition and the Mississippi Freedom Struggle (1995; Berkeley: University of California
Press, 2007); John Dittmer, Local People: The Struggle for Civil Rights in Mississippi (Urbana:
University of Illinois Press, 1994). For good summaries of this scholarly shift, see Tomiko
Brown-Nagin, “The Impact of Lawyer-Client Disengagement on the NAACP’s Campaign to
Implement Brown v. Board of Education in Atlanta,” in From the Grassroots to the Supreme
Court: Brown v. Board of Education and American Democracy, ed. Peter Lau (Durham: Duke
University Press, 2004), 227, 228; Payne, I’ve Got the Light of Freedom, 413^1; Steven
Lawson, “Freedom Then, Freedom Now: The Historiography of the Civil Rights Movement,”
American Historical Review 96 (1991): 456.
5. Payne, I’ve Got the Light of Freedom, 315; Doug Me Adam, Political Process and the
Development of Black Insurgency 1930-1970, 2nd ed. (Chicago: University of Chicago Press,
1999), 133-34, 184-85; Aldon D. Morris, The Origins of the Civil Rights Movement: Black
Communities Organizing for Change (New York: Free Press, 1984), 35-37. By contrast, many
scholars who focus on the Northern civil rights movement, which operated in a region without
explicit legal segregation, have explicitly grappled with law as a site of organization and as a
means of structuring the choices made by movement actors and their opponents. Thomas J.
Sugrue, Sweet Land of Liberty: The Forgotten Struggle for Civil Rights in the North (New York:
Random House, 2008); Martha Biondi, To Stand and Fight: The Struggle for Civil Rights in
New York City (Cambridge: Harvard University Press, 2003); Robert Self, American Babylon:
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Bringing the Law Back 659
The legal history of the civil rights movement moved in the opposite
direction, and focused on the NAACP and the Supreme Court. Institutional
histories of the NAACP and biographies of famous civil rights figures domi-
nated the field. In its latest incarnation, this work has diverged completely
from the central concerns of historians, and, most notably in the work of
Michael Klarman, has focused on the political science-inspired question
of whether the Supreme Court, acting alone, can effect social change.6
The genius of Nancy’s book – aside from its breadth, depth and subtle-
ty – is that it is the first major synthesis to bring law back into the social
history of civil rights politics. Nancy comes from the tradition of social
history, with its focus on how people remake their political worlds in ev-
eryday life. But the centerpiece of her story is Title VII of the Civil Rights
Act of 1964 and how ordinary people responded to the bare grant of legal
freedom that the statute conferred and found that it was not enough. Be-
ginning in the mid-1960s, these activists and other actors began to remake
what Nancy calls the “common sense” of America’s ordinary expectations
of race, gender, and place in the workforce, and by extension in the larger
realm of public life (2). In fact, Freedom is Not Enough could take its place
alongside the mainstream 1980s and 1990s legal histories written outside
the civil rights context – with its model of law as an arena of struggle in
which contending groups and individuals try to put their own stamp on
what citizenship means in American life.7
Indeed, the story as it emerges here compliments some of the newest
work in the legal history of the civil rights movement. For instance, Nancy
shows how both NAACP and Legal Defense Fund (LDF) lawyers were key
Race and the Struggle for Postwar Oakland (Princeton: Princeton University Press, 2003);
Jeanne Theoharis and Komozi Woodard, Freedom North: Black Freedom Struggles Outside
the South 1940-1980 (New York: Palgrave Macmillan, 2003).
6. Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle
for Racial Equality (New York: Oxford University Press, 2004); Mark V. Tushnet, Making
Civil Rights Law: Thurgood Marshall and the Supreme Court, 1936-1961 (Oxford University
Press, 1994); Genna Rae McNeil, Groundwork: Charles Hamilton Houston and the Struggle
for Civil Rights (Philadelphia: University of Pennsylvania Press, 1983); Gilbert Ware, Wil-
liam Hastie: Grace Under Pressure (New York: Oxford University Press, 1984). Klarman
generalized the argument first put forth in Gerald N. Rosenberg, The Hollow Hope: Can
Courts Bring About Social Change? (Chicago: University of Chicago Press, 1991), especially
pages 157-69, 336-42. Mark Tushnet’s history of the NAACP’s desegregation campaign
was an important exception, with its grounding of the campaign in its connection to local
communities. Mark V. Tushnet, The NAACP’s Legal Strategy Against Segregated Education,
1925-1950 (Chapel Hill: University of North Carolina Press, 1987).
7. lhe most prominent examples or that vein or legal history are the essays collected in
the bicentennial issue of the Journal of American History, republished as The Constitution
and American Life, ed. David Thelen (Ithaca: Cornell University Press, 1988).
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660 Law and History Review, Fall 2009
players in perhaps the most successful of the early movements for racial
equality in the workplace – that which focused on desegregating Southern
mill workforces (76-90, 108-9). She challenges the common interpretation of
the NAACP as a unitary, elite-driven organization caught up in noneconomic
rights and the struggle to implement Brown in the South, and which ceded
the cutting edge to other groups. Some NAACP and LDF leaders, notably
Roy Wilkins and Thurgood Marshall, coexisted uneasily with newer players
on the scene as the direct action phase of the movement heated up. Both
organizations, however, contained a variety of individuals and institutional
frameworks for advancing their agendas, and both found new roles for their
advocates and lawyers at the leading edge of reform once Title VII offered
them the chance to work with activists and movements on the ground and
change the common sense that governed the American workplace. There
simply hasn’t been enough exploration of the NAACP archives in the years
before and after Brown, as the main line of scholarship has followed the
familiar school desegregation litigation tracks.8
Some of the new work that has done this, notably by Risa Goluboff, Da-
vid Engstrom, Sophia Lee, and Paul Frymer, has described an NAACP that
drove the economic agenda of civil rights in a number of fields and institu-
tions in the post-World War II era. Goluboff has uncovered the organiza-
tion’s labor discrimination litigation of the 1940s which helped redefine just
what “civil rights” meant in American legal discourse. Engstrom has found
that the NAACP was a leading player in defining the structure and agenda
of the state-level FEPCs that proliferated once the drive for a permanent
federal FEPC stalled in the late 1940s, and that this agenda yielded legisla-
tive proposals that were sometimes innovative even by post- 1964 standards.
Lee has examined the NAACP’s Cold War-era administrative litigation
before the National Labor Relations Board that ultimately resulted in a rul-
ing that incorporated a nondiscrimination mandate into unions’ duty of fair
representation. Frymer has briefly surveyed the NAACP’s labor advocacy
during the two decades after World War II and has found an organization
that mobilized a variety of aggressive strategies in and out of court that,
by the 1960s, began to produce litigation that was far more radical than
anything the legislature or executive branch was prepared to entertain.9
While Goluboff argues that the labor cases that she chronicles disappeared
8. For an essential corrective to the standard scholarly orientation, see Patricia Sullivan,
Lift Every Voice: The NAACP and the Making of the Civil Rights Movement (New York:
The New Press, 2009).
9. Risa Goluboff, The Lost Promise of Civil Rights (Cambodge: Harvard University Press,
2007); David Freeman Engstrom, “The Taft Proposal of 1946 and the (Non-) Making of
American Fair Employment Law,” Green Bag 2d 9 (2006): 181; David Freeman Engstrom,
“The Lost Origins of American Fair Employment Law: State Fair Employment Practices
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Bringing the Law Back 661
around 1950, taken together the work of these scholars suggest, as I have
argued elsewhere, that there are “reasons to doubt” the standard narrative
of a “pervasive, coherent, and stable legal liberalism” emerging by 1950
that replaced the social democratic civil rights politics of the previous de-
cades with a focus on Brown, formal noneconomic rights, and elite visions
of civil rights politics.10 Nancy takes this story straight through the 1970s,
and points to an underemphasized aspect of this process: civil rights advo-
cates changed everyday understandings of ordinary Americans about who
belongs in what jobs, producing a ripple effect that continues to transform
the nation’s workforces and its public life.
Nancy’s book also nicely compliments current work in legal history in
showing how labor market regulation was key to the attack that civil rights
activists launched against racial exclusion in the mill and construction
industries in the aftermath of Title VII. Government contracts are a crucial
factor in her story and provided the lever that allowed activists to hold a
potential club over the heads of both private employers and unions – and
just as importantly, to offer an ideological justification for that position
that fit comfortably within the tenets of post-New Deal liberal politics (82,
95-96). Indeed, she takes forward the story that has been mapped out in
the work of scholars such Willie Forbath, Risa Goluboff, and myself, who
have argued that New Deal-era labor market regulation and government
contracts provided the opening wedge that allowed civil rights progressives
to begin to describe and attack race discrimination in private life.11
Bureaus and the Politics of Regulatory Design, 1943-1964″ (PhD. diss., Yale University,
2006), 24-264; Sophia Z. Lee, “Hotspots in a Cold War: The NAACP’s Postwar Workplace
Constitutionalism, 1948-1964,” Law and History Review 26 (2008): 327; Paul Frymer, Black
and Blue: African Americans, the Labor Movement, and the Decline of the Democratic Party
(Princeton: Princeton University Press, 2008).
10. Kenneth W. Mack, “Rethinking Civil Rights Lawyering and Politics in the Era before
Brown, Yale Law Journal 1 15 (2005): 256, 353. Of course, one can debate the economic and
political consequences of the NAACP’s workplace advocacy, as do both Judith Stein and
Paul Frymer in asserting that the civil rights bar’s creative advocacy was channeled by the
structure of the political and legal system into channels that blunted its radical potential. Stein
argues that Title VII litigation was conducted within a narrow framework that contributed to
the decline of the industrial workforce. Frymer is far more admiring of the radicalism of the
civil rights lawyers’ efforts, but argues that those efforts, guided by existing state structures,
drove a wedge between the civil rights movement and organized labor. Judith Stein, Running
Steel, Running America: Race, Economic Policy, and the Decline of Liberalism (Chapel Hill:
University of North Carolina Press, 1998), 69-91; Frymer, Black and Blue, 44-97.
1 1 . William Forbath, “Caste, Class, and Equal Citizenship,” Michigan Law Review 98
(1999): 1; Goluboff, Lost Promise of Civil Rights, 81-1 10; Mack, “Rethinking Civil Rights
Lawyering and Politics,” 331^-2; Kenneth W. Mack, “Law and Mass Politics in the Making
of the Civil Rights Lawyer, 1931-1941,” Journal of American History 93 (2006): 37, 62.
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662 Law and History Review, Fall 2009
Perhaps the most important of these progressives was Charles Houston
who, shortly before his untimely death in 1950, offered a vision of New
Deal-era regulation of economic life as a basis for attacking race discrimi-
nation by private actors in a wide swath of industry. Houston emerged as
perhaps the dominant player in shaping the approach of liberal organiza-
tions to the emerging state-level FEPC regime.12 His unfinished work gives
us much to consider as we contemplate the federal government taking a
financial stake in large sectors of the twenty-first-century economy, and
as we consider the new racial politics that may attach to the nation’s first
African American president.
Finally, Nancy’s book is important for its amazingly broad scope. Tak-
ing in African Americans, Mexican Americans, women’s rights reformers,
Jewish activists, and political conservatives in one book shows one way
to move beyond what historians such as Scott Kurashige have called the
“binary logic” of race relations history, and to cover more ground than
would ordinarily seem possible to do in one monograph.13
I’d like to use the remainder of my space to return to methodological
questions raised by the fact that Nancy is a social historian, and to offer
some thoughts on how a legal historian might react to the book. To make
my own methodological commitments clear, I come from the Legal Real-
ist tradition, and thus tend to focus my efforts on the gaps, conflicts, and
ambiguities in formal law, and on the legal contours of social life outside
formal institutions of law. I’d like to suggest that a realist perspective may
have something to contribute to Nancy’s pathbreaking work.14
The framing device encompassed in Freedom is Not Enough is actually
a formalist, rather than a realist one. The book is framed by Lyndon John-
son’s famous 1965 speech at Howard University, where the President told
Americans bluntly that the recent civil rights legislation had forced them
to face up to the proposition that “freedom is not enough” to guaranty true
racial equality. Johnson told his mostly black listeners, as well as the na-
tion, that Title VII and its accompanying legislation merely granted formal
equality – freedom from facially exclusionary practices – to members of
previously subordinated racial groups (5, 73-74). Nancy’s book picks up on
this interpretation to argue that the issue of substantive equality – the actual
12. Mack, “Rethinking Civil Rights Lawyering and Politics,” 344-45; David Freeman
Engstrom, “The Lost Origins of American Fair Employment Law: Regulatory Choice and
the Making of Modern Civil Rights, 1943-1964” (unpublished paper, 2009), 63 & n. 277.
13. Scott Kurashige, The Shifting Grounds of Race: Black and Japanese Americans in
the Making of Multiethnic Los Angeles (Princeton: Princeton University Press, 2008), 6.
14. The exact definitions of Legal Realism and formalism remain hotly contested to this
day. My description of realism is strongly influenced by the big-tent definition offered in
William W. Fisher III, Morton J. Horwitz, and Thomas Reed, eds., American Legal Realism
(New York: Oxford University Press, 1993), xi-xv.
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Bringing the Law Back 663
guaranty of inclusion in workplaces around the nation – would come to the
fore only when activists entered the fray in the years following the statute’s
enactment. At one level, the book might be simply stating a truism known to
lawyers and nonlawyers alike – that statutes are not self-executing without
some further action.15 But I think that, given the weight which this framing
device bears in the text, she means more than this. The book seems to rely
on the distinction between one kind of equality that the statute confers, and
another type of equality that only comes to the fore once ordinary people
and activists – who tend to drive the story in much of social history – come
into play.
In black politics, the analogue to the distinction that Johnson mobilized
was Bayard Rustin’s famous essay, “From Protest to Politics,” which ap-
peared not long before Johnson delivered his speech. Rustin divided the
civil rights movement into its classical phase (1954-64), when African
Americans pushed for the removal of formal barriers to equality, and its
political phase, when they began to push for substantive equality in eco-
nomic life, education, and other areas.16 Both Johnson and Rustin relied
on the distinction between formal equality (removing explicit barriers to
participation) and substantive equality (actual African American participa-
tion in the nation’s institutions). In their telling, the issue of substantive
equality emerges only when social movements try to put formal rights into
practice. I’d like to suggest that the distinction isn’t so neat.
In fact, the book’s interpretation of the period before Title VII was enacted
is somewhat conventional (unlike what it does with the statute’s aftermath).
In this telling, the rejection of a permanent federal FEPC in the late 1940s
signaled the end of the road for nondiscrimination rights in the workplace
until 1964. There was advocacy around these issues, to be sure – for in-
stance, in state FEPCs, in the labor movement, and within the Truman ad-
ministration. There was no real debate, however, about the legal contours of
the right to nondiscriminatory employment until social movement activists
renewed the fight during the 1960s (30, 38^4).
However, recent work in legal history calls this periodization into ques-
tion. For instance, Sophia Lee has shown that the lawyers and activists
within the NAACP’s national office were steadily working their way to-
15. Indeed, NAACP labor activist Herbert Hill made this exact point in the aftermath
of the statute’s enactment: “Title VII not self-enforcing.” Nancy MacLean, “Achieving the
Promise of the Civil Rights Act: Herbert Hill and the NAACP’s Fight for Jobs and Justice,”
Labor: Studies in Working-Class History of the Americas 3 (2006): 13, 14.
16. “From Protest to Politics: The Future of the Civil Rights Movement,” in Time on Two
Crosses: The Collected Writings of Bayard Rustin, ed. Devon W. Carbado and Donald Weise
(San Francisco: Cleis Press, 2003), 1 16. Rustin’s recent biographer notes that Johnson’s Howard
speech “framed civil rights in terms that Rustin himself might have crafted.” John D’Emilio,
Lost Prophet: The Life and Times of Bayard Rustin (New York: Free Press, 2003), 417.
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664 Law and History Review, Fall 2009
wards the issue of substantive equality as early as the 1950s, in little-known
labor union litigation before the National Labor Relations Board. They
took on, as well, another problem that is typically seen as not reemerging
until the 1960s – the question of whether legal mandates reached putatively
private conduct by discriminatory unions. Anthony Chen has done com-
plimentary work in his recent article on opposition to state-level FEPCs,
where opponents charged that nondiscrimination mandates would result in
“quotas” that would guarantee minority inclusion in the workforce. In 1946,
Republican Senator Robert Taft went so far as to propose a new federal
FEPC that would have been empowered to grant relief that, under some
circumstances, might fairly be read to include group-based representation in
the workplace. From the moment the FEPCs were proposed, they brought
to the table the question of what form of “equality” they were supposed to
foster. Indeed, the debate goes even further back to the New Deal era, when
the black boycott movements for jobs in African American neighborhoods
and the movement for racial equality within the government contracting
workforce demanded, and received, mandates for the inclusion of specific
numbers of African Americans in the workplace.17
I’d like to suggest that Rustin, and Johnson, exhibited a degree of histori-
cal blindness when they argued that the previous movement had focused
solely on formal equality, while substantive equality was the work of the
future. As a veteran of the left branch of civil rights politics, Rustin must
have known this to be untrue. There is a good chance that Johnson and
his aides did also. Indeed, Richard Goodwin, the White House aide who
helped draft Johnson’s speech, was a lawyer and a former law clerk to
Justice Felix Frankfurter, who himself had been a proto-realist figure in his
youth. By 1965, however, Rustin was shedding his own vagabond past and
moving to a more respectable place within the movement, while Johnson
and his advisors were trying to convince the American public that the
struggle for racial equality was not over. Each had powerful incentives to
17. Lee, “Hotspots in a Cold War,” 328, 366-68; Anthony Chen, “The Hitlerian Rule of
Quotas’: Racial Conservatism and the Politics of Fair Employment Legislation in New York
State, 1941-1945,” Journal of American History 92 (2006): 1238; David Engstrom, “The
Taft Proposal of 1946″; Michèle F. Pacifico, ‘”Don’t Buy Where You Can’t Work’ : The New
Negro Alliance of Washington,” Washington History 6 (1994): 67, 79-80; Robert Weaver,
“An Experiment in Negro Labor,” Opportunity 14 (October 1936): 295; Marc W. Kruman,
“Quotas for Blacks: The Public Works Administration and the Black Construction Worker,”
Labor History 16 (1975): 37, 44; Paul Moreno, From Direct Action to Affirmative Action:
Fair Employment Law and Policy in America, 1933-1972 (Baton Rouge: LSU Press, 1997),
30-65. Taft’s proposal was inartfully drafted, but group representation is one fair reading of
its language. A number of observers within the NAACP and the labor movement read it as
contemplating group-based relief and were uneasy with it for that reason. Engstrom, “Lost
Origins of American Fair Employment Law,” 151-53.
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Bringing the Law Back 665
suppress some of the contingency and malleability in the history of civil
rights politics up to 1964, and at least some of that suppression has made
it into our own histories of the movement.18
In addition, I’d like to note that in Nancy’s narrative, the debate over
substantive equality emerges “away” from law, as social movement activ-
ists try to transform the formal rights encompassed within the statute into
practical inclusion in the workforce. For a book about the social conse-
quences that attach to a particular legal enactment, there is only a limited
discussion of the enactment itself and the complex history and debates that
preceded it. In Freedom is Not Enough, the engine that moves the story
along is encompassed in the words and deeds of the job seekers, workers
and activists who struggle with the statutory mandate of formal equality.
But it’s not at all clear that the statute itself grants only formal rights – or
at least, that the issue of substantive equality emerges only outside of the
formal bounds of law. Just to take one example, the legal scholar Owen
Fiss spent the early part of his career showing that the equality principle
encompassed in any nondiscrimination mandate actually consists of two
principles, not one: (1) removal of formal barriers to participation, and (2)
actual inclusion in American institutions.19 Indeed, as early as 1971, Fiss
argued that the employment law regime that emerged in the aftermath of
Title VII was amenable to both interpretations.20 So it may very well be the
case that the “freedom” that the statute conferred may have been “enough”
to at least raise the question of equality of inclusion, and was not simply
the formal mandate that it appears to be in the book.
There are large political stakes behind this move to define freedom ex-
pansively. For instance, it has become quite common for political conser-
vatives to argue that mainstream American understandings of workplace
justice at the time of the 1964 Act only encompassed formal equality. In
this narrative, the issue of race-conscious inclusion did not emerge in the
modern era until left-liberal activists distorted the original meaning of the
mid-1960s moment.21 Even those scholars who try to move beyond the
polemics and normative judgments often assume that the commonsense
1 8. Robert Dallek, Flawed Giant: Lyndon Johnson and His Times, 1961-1973 (New York:
Oxford University Press, 1998), 222; D’Emilio, Lost Prophet, 393^439.
19. See, for example, Owen Fiss, “Groups and the Equal Protection Clause,” Philosophy
and Public Affairs 5 (1976): 107; Owen Fiss, “A Theory of Fair Employment Laws,” Uni-
versity of Chicago Law Review 38 (1971): 235; Owen Fiss, “Racial Imbalance in the Public
Schools: The Constitutional Concepts,” Harvard Law Review 78 (1965): 564.
20. Fiss, “A Theory of Fair Employment Laws.”
2 1 . See, for example, Stephan and Abigail Thernstrom, America in Black and White: One
Nation, Indivisible (New York: Simon and Schuster, 1997), 423-61; Paul Moreno, From
Direct Action to Affirmative Action, 266, 279.
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666 Law and History Review, Fall 2009
meaning of discrimination before the mid-1960s only encompassed formal
equality – when that assumption seemed like anything but common sense
to civil rights advocates and their opponents as they debated the meaning
of workplace equality in the decades preceding Title VII.22 This makes it all
the more important not to concede this ground without defining precisely
what we mean when we talk about the ideas of “freedom” that were debated
in the civil rights era and eventually enacted into law.
There is something similar at work in how Nancy treats those who come
to oppose substantive equality – certain Jewish activists and intellectuals,
and many political conservatives. I don’t mean to collapse the subtlety and
contextualism with which the book treats each of these sometimes-related
groups of people who balked at race consciousness. Moreover, no one
would equate the set of motives and impulses that led some Jewish activists
to balk at race-conscious faculty hiring in higher education with those that
led conservatives to come to oppose affirmative action writ large. But I
would like to suggest some commonalities in the way the book treats these
two groups that relate to the way it sets up the progression from formal to
substantive equality.
In framing the stories of the Jewish activists and political conservatives,
Freedom is Not Enough downplays the longer history of the contested
meaning of workplace equality in American life. For instance, the book
refers to Jewish intellectuals’ retreat from affirmative action as a “fall back
on identity politics” (186). It refers to conservatives’ replacement of their
former anti-civil rights rhetoric of property rights with their new rhetoric
of colorblindness as a “ploy” (238). Of course, one cannot ignore Jewish
activists’ realization that the interests encompassed in their group identity
might differ from those of black Americans, or conservatives’ instrumental
need to replace their previous anti-civil rights rhetoric with an updated
version. Indeed, with regard to certain figures in the story, namely Patrick
Buchanan and James Kilpatrick, Nancy’s argument seems convincing to
me. Nonetheless, it is also true that – as I have noted in my discussion
above – advocates of formal equality (as did those of substantive equality)
drew on longer and more respectable currents of American ideals than those
that emerged in the 1970s. For the three decades preceding the civil rights
measures of the mid-1960s, both forms of equality percolated within civil
rights discourse, and the enactment of Title VII did not resolve the debate
between them.
This is true even within African American politics. As far back as the
22. John David Skrentny, “Introduction,” in Color Lines: Affirmative Action, Immigra-
tion, and Civil Rights Options for America (Chicago: University of Chicago Press, 2001),
1-6; John David Skrentny, The Ironies of Affirmative Action: Politics, Culture, and Justice
in America (Chicago: University of Chicago Press, 1996), 7, 28-29.
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Bringing the Law Back 667
New Deal, black activists still couched their pleas for nondiscrimination
as calls for the inclusion of “qualified” Negroes in the job pool. For in-
stance, Chicago lawyer Earl Dickerson argued, in the midst of a cam-
paign for political office in the late 1930s, that “jobs on public utilities
have been systematically denied qualified Negro workers.”23 I’ve always
wondered – why did black activists so often append the word “qualified”
in a world of fairly explicit color bars to employment? Why not simply
demand that black workers be hired, and leave it at that? I believe that it is
because the language of formal nondiscrimination against qualified black
applicants – i.e., that if the barriers to the hiring of qualified Negroes were
removed, that would be enough – was already part of the rhetorical toolkit
of black activists as early as the 1930s. In fact, fierce debates broke out
among African Americans themselves during the boycott movements of
that decade over calls for inclusion of specific numbers of black workers
to be hired in businesses located in African American communities, as they
would again during the next decade over the same issue when civil rights
advocates began the push for a permanent FEPC and the integration of the
labor force.24 As Mark Tushnet has argued, “at nearly every moment, there
were articulate advocates for nondiscrimination and for proportionality” by
race in the workplace.25 When Jewish intellectuals and conservatives drew
on the rhetoric of formal equality in the 1970s, they mobilized language
and ideas that could be found in many unexpected places in the fabric of
American life.
Finally, I would like to turn to Nancy’s chapter on women activists and
“Jane Crow” – the exclusion of women from certain lines of male-identified
work. The term “Jane Crow” comes from Pauli Murray, the well-known civil
rights lawyer, feminist, and activist who is the central African American
participant in the story chronicled in the book. This chapter shows women
activists, including some black women, eventually coalescing around a
program of nondiscrimination in access to jobs, rather than a program that
preserved protected spaces in the workforce for women (117-54). One
wonders, however, how representative Pauli Murray is of the general at-
titudes of black women activists toward that dilemma.
In some ways, Murray must be unrepresentative of the general run of
black women activists of her place and time. Murray broke with what is
still a central ideological imperative within respectable black life in that she
23. “Dickerson Tells Second Ward Aims,” Daily Record (Chicago), February 11, 1939,
box 1, book 1, Earl Dickerson papers, Chicago Historical Society.
24. Facihco, “Don’t Buy Where You Can’t Work,” 79-80; Kruman, “Quotas tor Blacks”
44; Moreno, From Direct Action to Affirmative Action, 35-39, 95-100.
25. Mark Tushnet, “Book Review – Paul Moreno, From Direct Action to Affirmative Ac-
tion” American Journal of Legal History 42 (1998): 337, 338.
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668 Law and History Review, Fall 2009
was married for only the briefest of moments in her youth and never had
children. She had a complex and dissenting sexual identity that scholars are
still trying to sort out.26 Moreover, she spent much of her life clashing with
other black people, from her rejection as a plaintiff in an NAACP suit in
the 1930s to her disputes with other students at Howard Law School over
gender discrimination to her disillusionment with what became a central
preoccupation of African Americans – Kwame Nkrumah’s experiment in
African independence in Ghana.27
To put Murray into context, it may be useful to contrast her with another
black woman, albeit about a decade older then she – Philadelphia law-
yer Sadie Alexander. Like Murray, Alexander was an elite lawyer within
the black bar; she was a graduate of the University of Pennsylvania Law
School. Like Murray, she was a central figure in post- World War II civil
rights politics. Alexander was one of only two black members of Harry
Truman’s President’s Committee on Civil Rights, served as chair of the
Philadelphia Commission on Human Relations, was on the board of the
ACLU, and marched from Selma to Montgomery with Martin Luther King,
Jr. Unlike Murray, however, Alexander was married for most of her adult
life – to another lawyer, Raymond Pace Alexander, and raised children
while embarking on her legal career. She was also heir to the politics of
respectability that Evelyn Higginbotham has argued was the mainstream
political discourse among middle-class black women in the early part of
the twentieth century.28
Sadie Alexander spent the latter part of her career rejecting Murray’s idea
of Jane Crow. She resisted the analogy between race and sex discrimination,
and focused most of her activism on race alone. She professed to disdain
the cause of second- wave feminism to which Murray allied herself. Most
importantly, she defended gender-segmented workplaces for women, even
26. See, for example, Doreen Marie Drury, “Experimentation on the Male Side: Race,
Class, Gender, and Sexuality in Pauli Murray’s Quest for Love and Identity, 1910-1960”
(Ph.D. diss., Boston College, 2000); Glenda Gilmore, Defying Dixie: The Radical Roots
of Civil Rights, 1919-1950 (New York: W.W. Norton & Co., 2008), 288, 324-26; Rosalind
Rosenberg, “The Conjunction of Race and Gender,” Journal of Women ‘s History 14 (2002):
68, 69-70.
27. Pauli Murray, Song in a Weary Throat: An American Pilgrimage (New York: Harper
& Row, 1987), 126-28, 214-19, 343^4; Gilmore, Defying Dixie, 264-90; Kevin K. Gaines,
African Americans in Ghana: Black Expatriates and the Civil Rights Era (Chapel Hill:
University of North Carolina Press, 2007), 1 10-35.
28. Kenneth W. Mack, “A Social History of Everyday Practice: Sadie T.M. Alexander
and the Incorporation of Black Women into the American Legal Profession, 1925-60,”
Cornell Law Review 87 (2002): 1405. On the politics of respectability, see Evelyn Brooks
Higginbotham, Righteous Discontent: The Women’s Movement in the Black Baptist Church,
1880-1920 (Cambridge: Harvard University Press, 1993), 185-229.
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Bringing the Law Back 669
though her rich and active public life was, in its own way, an eloquent at-
tack on gender segmentation in the workplace and elsewhere. Alexander
professed that she did not want to engage in male-identified tasks in the
legal profession, such as criminal defense work. Instead, she made her
career out of domestic relations, probate, divorce, and other practice areas
identified with women. She reportedly turned down an offer of a judgeship
so that it would be later offered to her husband. To the end of her life,
she defended the primary responsibility of wives to be caretakers of the
home and that of husbands to be the primary breadwinners, presumably
occupying higher-prestige jobs than their wives.29
Why did Alexander do these things? What made her so different than
Murray? In part, the explanation lies in the tradition of middle-class black
respectability that she inherited from her family and that Murray was born
into but rejected. Yet, Alexander was also different than Murray because
she was married with children while establishing a successful career. Her
professional correspondence is filled with references to the everyday tasks
of caring for her children and the necessity of leaving work early, missing
meetings, and preparing meals for her family. References to family and
child care only rarely appear in the writing of her husband. Certainly one
key to Alexander’s attitude toward Jane Crow lay in her marriage, which
created a gender-segmented and protected space in the law firm founded by
her husband. That segmentation allowed her professional career to flourish,
while she cared for her family and conceded the high-prestige courtroom
work to men.
Although the comparison, of course, is inexact, Alexander provides a
contrast with Murray within black women’s politics. She was in a different
position of social and economic power than many of the relatively indepen-
dent white women activists who populate Nancy’s chapter on Jane Crow.
This raises the question of whether Alexander’s social, material, and cultural
circumstances were closer to those of her fellow black women lawyers and
activists than those of the iconoclastic, and unattached, Murray.
Freedom is Not Enough is all the more brilliant for raising questions
such as these, and perhaps leaving them for future scholars to answer. This
is a book that will define and challenge the paradigms, controversies, and
debates that will structure the future direction of this field of scholarship.
I look forward to reading what others will now do and write in the ground
that Nancy’s book has plowed up.
29. Mack, “Social History of Everyday Practice,” 1432 n. 155, 1443 n. 216, 1470-71;
Curtis Carson, interview by Kenneth W. Mack, Philadelphia, Pa., June 11, 1999.
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- Contents
- Issue Table of Contents
p. [657]
p. 658
p. 659
p. 660
p. 661
p. 662
p. 663
p. 664
p. 665
p. 666
p. 667
p. 668
p. 669
Law and History Review, Vol. 27, No. 3 (Fall 2009) pp. i-x, 483-724
Front Matter
In This Issue [pp. vii-x]
Sanctuary and the Legal Topography of Pre-Reformation London [pp. 483-514]
The One-Drop Rule in Reverse? Interracial Marriages in Napoleonic and Restoration France [pp. 515-548]
The Contested Will of “Goodman Penn”: Anglo-New England Politics, Culture, and Legalities, 1688-1716 [pp. 549-584]
To Save State Residents: States’ Use of Community Property for Federal Tax Reduction, 1939-1947 [pp. 585-625]
Legal History Dialogues [pp. 627-627]
“Glimmers of Life”: A Conversation with Hendrik Hartog [pp. 628-655]
Bringing the Law Back into the History of the Civil Rights Movement [pp. 657-669]
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Back Matter