The Civil Rights Cases 1883

The Civil Rights Act of 1875 was the last civil-rights statute of the Reconstruction era. It was the final legislative project of Senator Charles Sumner of Massachusetts, who had introduced versions of it repeatedly since 1870 and who died in 1874 with the bill still pending. Congress passed it after his death. President Grant signed it on March 1, 1875. Its core provision was Section 1, which guaranteed all persons within the United States the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement, subject only to the conditions and limitations established by law and applicable alike to citizens of every race and color.

Enforcement began at once. Black citizens who had been denied service sued under the Act in federal court. By 1882, five of those suits had reached the Supreme Court and been consolidated for argument. They were captioned United States v. Stanley (a hotel case from Kansas), United States v. Nichols (a hotel case from Missouri), United States v. Ryan (a theater case from California), United States v. Singleton (a theater case from New York), and Robinson and Wife v. The Memphis and Charleston Railroad Company (a Tennessee railway case brought by Sallie and Richard Robinson after they were denied first-class passage). The cases were argued in March 1883.

The federal government defended the statute. Attorney Samuel Shellabarger, a former Ohio congressman who had helped draft the Enforcement Acts of 1870 and 1871, led the argument for the United States. His position was straightforward. The Thirteenth Amendment had abolished slavery and, by Section 2, authorized Congress to enforce that abolition by appropriate legislation. The Fourteenth Amendment had guaranteed equal protection and, by its own enforcement clause, authorized Congress to make that guarantee real. A regime in which Black citizens could be turned away from hotels, theaters, and trains was, Shellabarger argued, a badge and incident of slavery and a denial of equal protection both.

On October 15, 1883, the Court ruled against him 8-1. Justice Joseph P. Bradley wrote for the majority. His opinion worked through the Fourteenth Amendment first. The Amendment, Bradley held, reached only state action. It did not authorize Congress to regulate the acts of private individuals. A hotel owner, a theater manager, a railroad conductor acting in a private capacity, none of them were the state. Congress therefore had no power under the Fourteenth Amendment to forbid their discrimination.

Bradley then addressed the Thirteenth Amendment. Slavery, he wrote, meant compulsory labor and legal ownership of one person by another. Being denied a hotel room was not slavery. It was, in his words, a mere discrimination on account of race or color, and could not be said to reduce a man to slavery. The Amendment's enforcement power therefore did not reach the Act either. Section 1 of the Civil Rights Act of 1875 was unconstitutional.

Justice John Marshall Harlan dissented. Harlan was a Kentuckian, born in 1833 to a slaveholding family, a former slaveholder himself, and a former Unionist officer who had opposed the Thirteenth Amendment at the time of its passage and had since reversed that position entirely. His dissent ran thirty-six pages. Its argument was that the majority had read the Civil War amendments by subtle and ingenious verbal criticism, rather than by the substance of what they were plainly meant to secure. The Thirteenth Amendment, Harlan wrote, had destroyed slavery and its badges and incidents. The Fourteenth Amendment had made Black citizens full citizens of the United States. The power of a hotel or a railroad, exercising a public function under public license, to exclude them by race was a badge of slavery the Thirteenth Amendment reached, and a denial of equality the Fourteenth Amendment had authorized Congress to prevent. He predicted that the ruling would come to be regarded as equivalent in harm to the Dred Scott decision. His prediction was correct.

The Southern press cheered the decision. The Northern Republican press, now two decades removed from the war, was divided and quiet. Frederick Douglass, speaking at a mass meeting in Washington a week after the ruling, said that the Court's decision had inflicted a heavy calamity on seven millions of the people of this country, and left them naked and defenseless against the action of a malignant, vulgar, and pitiless prejudice. Douglass was seventy-five. He had been born enslaved. He had lived to see the Act passed and now to see it struck down in his lifetime.

The practical effect was immediate. Pending enforcement suits were dismissed across the country. Black citizens who had sued under the Act lost their cases. Robert Fox, the Black plaintiff who had been denied a seat at the Grand Opera House, lost. William R. Davis Jr., who had paid for a hotel room at New York's Grand Central Hotel and been turned away at the desk, lost. Sallie Robinson, the Black woman denied first-class passage with her husband on the Memphis and Charleston Railroad, lost. The federal statute they had relied on no longer existed. In the years that followed, state after state across the South enacted the segregation statutes the federal Act had been designed to prevent.

Plessy v. Ferguson was decided in 1896. Its separate-but-equal doctrine was the logical successor to the 1883 ruling. The Civil Rights Cases had established that private actors could discriminate. Plessy established that states could require them to. Together the two decisions built the legal architecture of Jim Crow. Harlan dissented in both. His Plessy dissent, which declared that the Constitution is color-blind, is the more famous of the two. His 1883 dissent, which predicted Plessy, is the one that set the reasoning.

The Civil Rights Act of 1875 was never formally overturned by the Supreme Court. It was eventually replaced. When Congress returned to the question in 1964, it had eighty-one years of precedent to navigate around. Its drafters chose not to argue. They grounded the public-accommodations provisions of the Civil Rights Act of 1964 in the Commerce Clause, on the theory that hotels, restaurants, and theaters engaged in or affected interstate commerce and could therefore be regulated by Congress on that ground alone. In Heart of Atlanta Motel v. United States, decided later the same year, the Supreme Court upheld the new Act unanimously. The 1883 precedent was left standing and stepped around.

Pending federal enforcement suits under the Civil Rights Act of 1875 were dismissed across the country within weeks of the ruling. Black plaintiffs who had paid filing fees and retained counsel lost without further hearing. The statute under which they had sued no longer existed as enforceable law.

Southern states moved to fill the vacated legal space. By 1890, Mississippi had rewritten its constitution to disenfranchise Black voters. Other states followed within a decade. Segregation statutes governing railroads, streetcars, schools, hospitals, prisons, and cemeteries were enacted across the South between 1887 and 1910.

Plessy v. Ferguson was decided in 1896 and established the separate-but-equal doctrine. Its legal foundation rested on the Civil Rights Cases. The combination produced the body of law known as Jim Crow.

The Civil Rights Act of 1875 was never formally overturned. Its public-accommodations protections were restored by the Civil Rights Act of 1964, grounded in the Commerce Clause rather than the Fourteenth Amendment, precisely to avoid the 1883 precedent. Heart of Atlanta Motel v. United States upheld the new statute unanimously later that year.

Justice Harlan's dissent was obscure for most of the nineteenth century and revived in the twentieth. By the 1960s it was being cited in every major civil-rights opinion. It is now the part of the case that most first-year law students are asked to read most closely.