The Radical view, as illustrated by the speeches of Edmunds of Vermont, Frelinghuysen of New Jersey, and Howe of Wisconsin, was that the Fourteenth Amendment prohibited state or local laws which segregated students by race, but that school boards could maintain a dual system of schools and do everything to encourage racial segregation short of compelling it. This view would sustain Brown v. Board of Education,300 if read very narrowly, far more narrowly than the Supreme Court has ever read it. It would certainly not support the gloss placed on it by Coss v. Board of Education,301 or by the later decisions of the lower federal courts.02 Finally, the Sumner-Boutwell view was that there should be a single school system with everybody going to his neighborhood school. This is the way the Supreme Court has so far viewed the Fourteenth Amendment. Nobody suggested that the school authorities had an obligation to transport students around the city to eliminate "de facto" segregation because of neighborhood population patterns. 303 A determination of which of these views the Fourteenth Amendment embodied is a matter of simple arithmetic. Boutwell's proposal received not a single additional vote from a northern Republican, so obviously the Fourteenth Amendment could not have embodied this. The Radical ideas, as embodied in the Senate bill, never obtained a two-thirds vote in either House, which would have been necessary to embody it in a constitutional amendment. The Republicans who voted against the school clause did not do so, as has been suggested, because of the stock warning that southerners would dismantle their school systems." This was simply a makeweight argument that those against the school clause used, with those for it either claiming that it would not occur or willing to take their chances. Those Republicans who opposed the school clause either did so because of fear of voter reaction, personal belief that the Fourteenth Amendment did not require school desegregation, or personal hostility to school desegregation, or a combination of these views. Insofar as such action was based on fear of voter antipathy, it constitutes a strong argument against the possibility that the Fourteenth Amendment requires school desegregation. The amendment was proposed as a platform for the Republican Party to run on in the key fall 1866 elections, and the party was forced to forgo its far more moderate and ardentlydesired objective of Negro suffrage for this reason. Indeed, Sherman had warned his colleagues to be "moderate" and "to waive extreme opinions",305 and Democrats twitted the majority on its surrender to the voters.30 In light of the fact that the House at the beginning of the reconstruction period had given District of Columbia Negroes the ballot,30 even before the Fourteenth Amendment was proposed, but never, even by 1875, had desegregated District schools, it is conconceivable that the Fourteenth Amendment would have been loaded down with a proposition so likely to defeat both it and the Republican Party.308 304 307 In 1866, as in 1875, the Republicans could not have afforded to lose a third, or indeed, any significant number of their party, and still muster a two-thirds vote in the Congress. The moderates held the balance of power in 1866. Their views must therefore be deemed decisive, since without them nothing could have been accomplished. This group emphatically and consistently demonstrated country. Since 1870 it has been discussed in all its various phases, so that it is impossible for the ingenuity of man to say anything either new or original upon it." Cong. Rec. 43/2, 950. Congressman Eppa Hunton, a Virginia Democrat, also said: "So much has been said on the civil rights bill that but little can be uttered now either new or interesting." Cong. Rec. 43/2. App. 117. 211 U.S. 45 (1908). 300 347 U.S. 483 (1954). 301 373 U.S. 683 (1963). 302 A member of these are collected in Dowell v. School Board, 244 F. Supp. 971 (W. D. Okla, 1965). 303 Frank & Munro, The Original Understanding of "Equal Protection of the laws", 50 Col. L. Rev. 131, 161-2 (1950). Prof. Kelly has indicated that threats of school closing were important, but even he has recognized that political considerations were decisive. Supra, n. 12 at 554-561. James, The Framing of the Fourteenth Amendment 110-120, 123-4, 134-5, 145 (1956). 306 Cong. Globe, 39th Cong., 1st Sess. App. 132 (1866). 306 Id. at 2530 (Randall). Id. at 311. 808 See Cong. Rec. 43/2, 1001, where Congressman William W. Phelps, a Republican opponent of the civil rights bill from New Jersey, declared that in the form of the bill Sumner left the (Republican) party which he created and led, a legacy full of the seeds of disintegration and decay 65-506-66-pt. 1-44 that it considered that the Fourteenth Amendment neither compelled of itself nor gave Congress the power to compel school desegregation. The conclusion is inevitable. The rule of Brown v. Board of Education is not now, nor has it ever been, the supreme law of the land. Rather, it is an unwarranted exercise of non-existent authority which, being illegitimate in its origin, cannot be made legitimate by the lapse of time, nor by compliance, voluntary, purchased, or coerced. As for so-called "de facto" segregation, to believe that the Fourteenth Amendment mandated elimination of this requires a complete hallucination. The short answer to the array who urge the contrary was given by Mr. Justice Field, a contemporary of the amendment, in another context as follows: "But notwithstanding the great names which may be cited in favor of the doctrine, and notwithstanding the frequency with which the doctrine has been reiterated, there stands, as a perpetual protest against its repetition, the constitution of the United States, which recognizes and preserves the autonomy and independence of the states. . . Supervision over either the legislative or the judicial action of the states is in no case permissible except as to matters by the constitution specifically authorized or delegated to the United States. Any interference with either, except as thus permitted, is an invasion of the authority of the state, and, to that extent, a denial of its independence.' 11 309 If a synthesis of Radical and Moderate views on schools were attempted, it would result in a doctrine that is the parent and not the stage who must control the educational atmosphere of the child. In such a synthesis, the duty of each school board is to create, consistently with efficient school administration, such a number of schools, both segregated and integrated, by race or otherwise, as will afford to the parents an opportunity to place their children in the educational atmosphere which they desire. Such a scheme would give the fullest opportunity for freedom of choice and association, but yet guard any child against unwanted association. To the extent that it is administrative feasible, the local school board should run a variety of schools and classes to suit the desires of all segments of the community. To the extent that the Fourteenth Amendment has anything to do with school segregation, it merely guarantees individual freedom of choice, consistent with the choice of all other individuals. Anyone who thinks he has a right to force himself on others is not asserting his Fourteenth Amendment rights but trampling on the rights of others. RACIAL SEGREGATION IN PUBLIC ACCOMMODIATIONS: SOME REFLECTED LIGHT ON THE FOURTEENTH AMENDMENT AND THE CIVIL RIGHTS ACT OF 1875 (By Alfred Avins) 1. INTRODUCTION The extent to which the Fourteenth Amendment forbids racial segregation is a matter of current importance in the field of "public accommodations." Section 201(d) of the Civil Rights Act of 1964' specifically relies on the Fourteenth Amendment as one of the constitutional bases forbidding segregation in public accommodations. Moreover, where the Supreme Court finds "state action" to exist, it has specifically relied on this amendment to forbid such segregation even without a federal statute, and in so doing has overruled what was long the landmark in the field of race relations, Plessy v. Ferguson.3 While direct light on the intent of the framers of the Fourteenth Amendment respecting segregation is scanty, there is abundant reflected light in respect to segregation and public accommodations from the debates on the Civil Rights Act of 1875. The first section of that statute forbade discrimination in inns, public carriers, and theaters and places of amusement. 300 Baltimore & Ohio R.R. Co. v. Baugh, 149 U.S. 368, 401 (1893) quoted in Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78-79 (1938). 178 Stat. 241 (1961). 2 Browder v. Gayle, 142 F. Supp. 707 (M.D. Ala. 1956) aff'd. 352 U.S. 903 (1956). 3163 U.S. 537 (1896). Cf. Bickel, The Original Understanding and the Segregation Decision, 69 Harv. L. Rev. 1, 56-59 (1955). 518 Stat. 335 (1875). Apparently, examination of the legislative history of that act has been discouraged by the fact that it was held unconstitutional in the Civil Rights Cases, on the ground that it went beyond the "state action" limitation of the Fourteenth Amendment. Nevertheless, the debates in connection with that act are illuminating. This article will attempt to weave the reflected light into a pattern which will show the intent of the framers of the Fourteenth Amendment in respect to segregation in public accommodations. 2. SUMNER AND THE AMNESTY BILL On May 13, 1870, Senator Charles Sumner of Massachusetts, the ultra-equalitarian Radical Republican, introduced in the Senate a bill to supplement the Civil Rights Act of 1866. The first section of Sumner's bill read: "That all citizens of the United States, without distinction of race, color, or previous condition of servitude, are entitled to the equal and impartial enjoyment of any accommodation, advantage, facility, or privilege furnished by common carriers, whether on land or water; by inn-keepers; by licensed owners, managers, or lessees of theaters or other places of public amusement; by trustees, commissioners, superintendents, teachers, or other officers of common schools and other institutions of learning, the same being supported or authorized by law; by trustees or officers of church organizations, cemetery associations, and benevolent institutions incorporated by national or State authority; and this right shall not be denied or abridged on any pretense of race, color, or previous condition of servitude."8 The bill died after being sent to the Judiciary Committee and reported adversely by its chairman, Senator Lyman Trumbull of Illinois, for the committee." In the next session, Sumner again introduced the bill," but again it died in the Judiciary Committee." When the First Session of the Forty-Second Congress opened, Sumner introduced the bill for the third time. Having twice been rebuffed by the Judiciary Committee, he asked that the bill not be returned to that Committee again. He urged in support of it: "you cannot expect repose in this country . . . until all citizens are really equal before the law. Why, sir, you know well that the Senator from Mississippi, who sat at our right only the other day, (Mr. Revels,) cannot travel to his home as you can without being insulted on account of his color. And . . . has he not the same rights before the law that you have? Should you enjoy in any car a privilege which the late Senator from Mississippi should not enjoy? And yet you know his rights in the cars are not secured to him; you know that he is exposed to insult. So long as this endures, how can you expect the colored population of this country to place trust in the Government? Government insults them so long as it refrains from giving them protection in these rights of equality." 99 12 However, no other senator showed much interest, and the bill once again died of its own accord. In the face of these repulses, Sumner moved on December 20, 1871, to attach his proposal on as a rider to the amnesty bill, a proposal authorized by the third section of the Fourteenth Amendment to lift the remaining political disabilities which that section imposed on many important confederates." This bill was supported by the President, ardently desired by Southern Republicans and all Democrats, and acquiesced in, at least half-heartedly, by most Republicans. Its passage by the necessary two-thirds majority seemed all but assured. When Sumner contended that his bill was designed to secure "equal rights", Senator Joshua Hill, a Georgia Republican, immediately arose to contest this. He declared that separate dining rooms in hotels and separate railway cars did not deny civil rights if the accommodations were equal. He pointed to the fact that slaves who had worshipped at the same church as their masters before the 109 U.S. 3 (1883). 7 14 Stat. 27 (1866). 8 Cong. Globe, 41st Cong., 2d Sess. 3434 (1870). See also Cong. Globe, 42nd Cong., 1st Sess. 21 (1871); Cong. Globe, 42nd Cong., 2d Sess. 244, 821 (1872) (hereinafter referred to as Globe 42/2). * Cong. Globe, 41st Cong. 2d Sess. 5314 (1870). 10 Cong. Globe, 41st Cong. 3rd Sess. 616 (1871). 11 Id. at 1263. See also Globe 42/2, 822. 12 Cong. Globe, 42nd Cong., 1st Sess. 21 (1871). 13 Globe 42/2, 237, 240. See also Globe 42/2, 821. Civil War requested assistance in building separate churches after emancipation." The following colloquy then occurred: "Mr. SUMNER. Mr. President, we have a vindication on this floor of inequality as a principle, as a political rule. "Mr. HILL. On which race, I would inquire, does the inequality to which the Senator refers operate? "Mr. SUMNER. On both. Why, the Senator would not allow a white man to go into the same car with a colored man. "Mr. HILL. Not unless he was invited, perhaps [Laughter]. Mr. SUMNER. Very well, The Senator mistakes substitutes for equality. Equality is where all are alike. A substitute can never take the place of equality. The colloquy continued, with Sumner asserting that in railroads and hotels, as well as schools, Negroes should have the same rights as whites. He contended that segregation in these places was an indignity, an insult and a wrong. Hill, however, pointed out that he himself was "subject in hotels and upon railroads to the regulations provided by hotel proprietors for their guests, and by the railroad companies for their passengers." He pointed out that while both he and Negroes were entitled to "all security and comfort that either presents to the most favored guest or passenger," physical proximity does not add to it, and hence is not a denial of any right to either white or colored. He drew on the example of segregated ladies cars on railroads, and concluded that separation was a matter of taste. Discussion continued in the same vein. Sumner justified first, second, and third class railroad cars based on price, but proclaimed that segregation was inequality and violated the Declaration of Independence. He alluded to the large Negro voting population of Georgia, and how badly Hill was representing them. Hill replied that while Sumner's views were consistent with his whole life's outlook, "he has not yet succeeded in convincing the great mass of minds, even in the far North and East," of the practicality or necessary of these views. Hill denied that race mixing in railroads added to comfort, while Sumner asserted that to select a white person as a railroad companion on a long trip was an indignity to the colored man. When Sumner decried the segregation in a steamboat dining room of Frederick Douglass because of race as violation of equal rights, Hill defended the right of companies to make such regulations as "no infringement of the Constitution of the country or of any existing law."" 14 Globe 42/2, 241. 15 Globe 42/2, 242. 18 As to common law, at least, Hill was unquestionably correct. See Chicago & Northwestern Ry. Co. v. Williams, 55 Ill. 185, 8 Am. Rep. 641 (1870); Day v. Owen, 5 Mich. 520, 72 Am. Dec. 62 (1858); West Chester & P. R. Co. v. Miles, 55 Pa. St. 209, 93 Am. Dec. 744 (1867); Goines v. McCandless, 4 Phila. 255 (Pa. 1861). Day v. Owen and Goines v. McCandless suggest that the separate accommodations may be inferior; the other two cases noted above, and decided after the Civil War, require equal accommodations, as does Coger v. North West Union Packet Co., 37 Iowa 145 (1873), which did not decide the question of segregation. All of the cases, however, required carriers to take Negroes in some way. Cully v. Baltimore & Ohio R. Co., 6 Fed. Cas. 946, No. 3466 (D. Md. 1876), citing Field v. Baltimore City Pass. R. Co. (unreported): Pleasants v. North Beach & M.R. Co., 34 Cal. 586 (1868); Turner v. North Beach & M.R. Co.. 34 Cal. 594 (1868); State v. Kimber, 3 Ohio Dec. 197 (1859); Derry v. Lowry, 6 Phila. 30 (Pa. 1865). There are a considerable number of later federal cases holding that a carrier may offer Negroes separate accommodations only if they are equal to those of whites. Guinn v. Forbes, 37 Fed. 639 (D. Md. 1889); Murphy v. Western & A.R.R., 23 Fed. 637 (C.C. E.D. Tenn. 1885); Logwood v. Memphis & C.R. Co., 23 Fed 318 (C.C.W.D. Tenn. 1885): The Sue, 22 Fed. 843 (D. Md. 1885); Gray v. Cincinnati So. R. Co., 11 Fed. 683 (C.C.S.D. Ohio 1882); Green V. City of Bridgeton. 10 Fed. Cas. 1090, No. 5754 (S.D. Ga. 1879); Charge to Grand Jury, 30 Fed. Cas. 999, No. 18,258 (C.C.N.C. 1875); Charge to Grand Jury, 30 Fed. Cas. 1005, No. 18,260 (C.C.W.D. Tenn 1875). It might also be noted that at common law, an innkeeper could assign_whatever rooms he wanted to give to his guests. Fell v. Knight, 8 M. & W. 269, 151 Eng. Rep. 1039 (1841); Doyle v. Walker, 26 Upper Can. Q.B. 502 (1868); Rogers, The Law of Hotel Life 7 (1879); Wandell, The Law of Inns, Hotels and Boarding Houses, 75 (1888). To the same effect see Note, The Civil Rights Bill, 10 Weekly L. Bull. 241 (1883). It is quite likely that Sumner was aware of the common-law rule permitting segregation of passengers and hotel guests. In his major opening speech on the bill. he had quoted from Story on Bailments, sec. 591. Globe 42/2, 383. The next section, sec. 591a, which was in every edition from the 3rd edition published in 1832, stated that "The passengers are bound to submit to such reasonable regulations as the proprietors may adopt for the convenience and comfort of the other passengers, as well as for their own proper interests." See, in particular, Story on Bailments. § 591a, 610 (5th ed., 1851). Sumner had edited the fifth edition of Story on Bailments, and so unquestionably was familiar with this statement of the law. See Advertisement to the Fifth Edition printed Footnote continued on following page. 26 T Sumner concluded the colloquy by asserting that Congress "must annul all such regulations" because they were "in defiance of equality," and that unless Negroes were "equal before the law" the "promises of the Declaration of Independence are not yet fulfilled." As the self-proclaimed defender of the Negro-race, he pledged to see that they were not treated with indignity." Sumner then started reading letters from Negroes complaining that hotels would not serve them. However, debate on this was concluded when Sumner's amendment was ruled out of order.1 The next day, Sumner moved his amendment in the Committee of the Whole." Debate centered around arguments that Sumner's amendment would kill the amnesty bill.20 Finally, a vote was taken and the amendment lost by 30 to 29. But Sumner renewed his amendment in the whole Senate," and spoke at length in its favor on January 15, 1872. He decried the cases where Frederick Douglass was not permitted to dine with fellow commissioners, and where a colored lieutenant governor of Louisiana "was denied the ordinary accommodations for comfort and repose" on a railway trip to Washington." Sumner protested that all classes and sexes of Negroes were "shut out from the ordinary privileges of the steamboat or railcar, and driven into a vulgar sty with smokers and rude persons, where the conversation is as offensive as the scene, and then again at the road-side inn are denied that shelter and nourishment without which travel is impossible." Even Massachusetts was not free from discrimination." Sumner denied that separate facilities were equal. It was an equivalent, but equality demanded the same thing. He contended that "in the process of substitution, the vital elixir [of equality] exhales and escapes," even if accommodations are the same. It was an indignity to Negroes, and "instinct with the spirit of slavery." He concluded that the law would change adverse public opinion, and that patronage of mixed facilities would not cease because of the requirements of his bill. Two days later Sumner was back on his feet to rebut assertions that the bill was unnecessary. He read to the Senate long excerpts from letters and resolutions by Negroes complaining of denial of facilities in railroads and hotels. A colored teacher traveling to Alabama from Boston could get nothing to eat for several days." A hotel in Boston would not give a Negro a room during one of the worst storms of the year." The colored Secretary of State of South Carolina wrote in a letter to Sumner that a federal law was needed because state courts would not enforce a similar state statute." A Negro legislator from North Carolina complained that he had passed a charter through the state house of representatives for a steamboat company. On returning home, his only route was on the company's line, and he was denied first-class accommodations and placed in a colored section of much inferior accommodation." First-class accom Footnote continued from previous page. following Story's dedication page. However, it is probable that Sumner was reading from a later edition than that which he had edited, since the quotation from Wintermute v. Clark, 5 Sandf. 242 (N.Y. Super. Ct. 1851), from which he quoted, does not appear in Story on Bailments until the sixth edition, published in 1856. Commencing with the seventh edition, published in 1863, Day v. Owen, supra, is cited. See Story on Bailments, 561, n. 6 (7th ed. 1863). And Fell v. Knight, supra, is noted in 2 Kent's Commentaries 596, n. a (11th ed. Comstock 1866), from which he also read. Globe 42/2, 383. The point that carriers could not exclude, but could segregate, Negroes, is made quite clear in the speeches of Senator Willard Saulsbury (D.-Del.), John S. Carlisle (Un.-Va.) and James R. Doolittle (R.-Wisc.), in Cong. Globe, 38th Cong., 1st Sess. 1157-9 (1864), notwithstanding Mr. Justice Black's doubt on this point, in Bell v. Maryland, 32 U.S. Law Week 4664, 4697 (1964). As for the Field case, cited by Mr. Justice Goldberg as a desegregation case (id. at 4689, n. 26), this is more properly interpreted as a non-discrimination case. See the Cully case, supra. Cf. the brief of the U.S. Solicitor General in Griffin v. Maryland, 373 U.S. 920 (1963), at p. 51, n. 91. 243. 17 Globe 42/2. 18 Globe 42/2, 244-5. 10 Globe 42/2, 263. 20 Globe 42/2, 272. 21 Globe 42/2, 274. Globe 42/2, 278. Globe 42/2, 381. 24 Globe 42/2, 382. But Massachusetts had an anti-discrimination law. Act of May 16, 1865. Mass. Stat. 1865, c. 277. See also Commonwealth v. Sylvester, 95 Mass. 247. (1866). Globe 42/2, 383. Globe 42/2, 429-30. 27 Globe 42/2, 430. Ibid. But see infra, n. 33. Globe 42/2, 431. |