Skip to content

Latest Stories

Top Stories

Who has been a special favorite of the laws?

Who has been a special favorite of the laws?

Affirmative action supporter holds sign outside of the Supreme Court

Getty Images

Daniel O. Jamison is a retired attorney.

The Supreme Court’s recent decisions on affirmative action and permissible discrimination by a business harken back to a discredited era.

The Court majority wrote, “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, ….”

No, this was not language in the Court’s recent decision banning affirmative action.

It was the language of the Supreme Court in the 1883 Civil Rights Cases that barred Congress from outlawing race discrimination in public accommodations. Along with its 1896 notorious cousin, Plessy v. Ferguson, these cases established the Jim Crow doctrine of “separate but equal” and entrenched America’s white majority as “the special favorite of the laws.”

How could this happen? Were not the immediate post-War Constitutional Amendments and civil rights laws designed to bring Blacks, who had been enslaved and grossly disadvantaged for hundreds of years, out of slavery and into the national mainstream?

The Civil Rights Cases ruled that the Civil Rights Act of 1875 was unconstitutional. That Act barred inns, public conveyances of all types, theaters, and public amusements from discriminating against “citizens of every race and color, regardless of any previous condition of servitude.” It imposed civil and criminal penalties for its violation. The Act was adopted near the end of the Grant administration by the lame duck “Radical” Republicans, who had lost their near 15-year control of the House. It was the capstone of what so many Americans had fought, died, and been maimed for in the Civil War.

Sign up for The Fulcrum newsletter

But now a coalition of Northern and Southern Democrats would control the House, soon also the Senate. They were intent on rolling back the great post-Civil War progress in civil rights.

The 1883 Civil Rights Cases concerned race discrimination at hotels in Kansas and Missouri, a railroad in Tennessee, and theaters in New York and California. The Fourteenth Amendment states in part: “All persons born or naturalized in the United States…are citizens of the United States…No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State…deny to any person within its jurisdiction the equal protection of the laws.” The Court majority ruled that the Amendment only allowed Congress to ban race discrimination resulting from “state action” and not from private discrimination.

The Thirteenth Amendment, which outlawed slavery and even private imposition of “badges of slavery,” was also held inapplicable here.

The lone dissenter, John Marshall Harlan, who would later also write a famous dissent in Plessy v. Ferguson, protested that race discrimination by these businesses open to the public would deny to a disfavored minority equal access to mainstream American public accommodations. Where would people stay, eat, and sleep, how would they travel, where would they enjoy common amusements? For Harlan, the 1875 Act was constitutional under the Fourteenth Amendment and under the Thirteenth Amendment to prevent “badges of slavery.” Congress’s power in the Constitution to regulate commerce between the states also justified the Act.

The 1883 Court ignored Congress’s power to regulate interstate commerce. It was another 80 years before Congress basically re-enacted the 1875 Act in the 1964 Civil Rights Act. This time, the Supreme Court promptly upheld the 1964 Act based on the Constitution’s Commerce Clause. In the meantime, white supremacy became evermore more deeply entrenched as red-lining and green-books proliferated.

Whether driven by fear of a renewed civil war or a race war, by rank racism, by poor lawyering, and/or by perceived Congressional intent, the Supreme Court in 1883 relegated Blacks to an often brutal and long-enduring subservient second-class citizenship.

The consequences still run deep. For example, even in the modern military, which has been integrated since the late 1940’s, former Army Captain and West Point graduate Zoe Kreitenberg has observed that, “Currently, Black service members face an up to 71% greater likelihood of punishment across the military, and nearly 53% of minority service members have personally witnessed white nationalism or racist ideologies in their units.”

Harlan pointed out that the 1875 Act protected any race from discrimination, so no one was made a “special favorite” of the law. He warned that at some future time another race may become dominant and allow like discrimination against a different minority race.

Affirmative action aims to right the injustice of long-standing race discrimination. It aligns with American ideals to promote equality and protect any race, now or in the future, from a majority’s imposition of gross injustice on the basis of race. In light of the nation’s racial history, doubts about how long to use this tool for disfavored minorities should be resolved against prematurely ending it.

The Civil Rights Cases allowed race discrimination to flourish. In ending affirmative action before its time, today’s Court perpetuates the consequences of that injustice.

But this is not all. Today’s Court also harkens to 1883 in allowing an alternative way for a business open to the public to refuse to serve an historically disfavored minority group: Show to the satisfaction of the court that the discrimination can be deemed First Amendment protected free speech.

Who has been “the special favorite of the laws?”

Read More

Blurred image of an orchestra
Melpomenem/Getty Images

The ideal democracy: An orchestra in harmony

Frazier is an assistant professor at the Crump College of Law at St. Thomas University. Starting this summer, he will serve as a Tarbell fellow.

In the symphony of our democracy, we can find a compelling analogy with an orchestra. The interplay of musicians trained in different instruments, each contributing to the grand musical tapestry, offers lessons for our democratic system. As we navigate the complexities of governance, let us draw inspiration from the orchestra's structure, dynamics and philosophy.

Keep ReadingShow less
David French

New York Times columnist David French was removed from the agenda of a faith-basd gathering because we was too "divisive."

Macmillan Publishers

Is canceling David French good for civic life?

Harwood is president and founder of The Harwood Institute. This is the latest entry in his series based on the "Enough. Time to Build.” campaign, which calls on community leaders and active citizens to step forward and build together.

On June 10-14, the Presbyterian Church in America held its annual denominational assembly in Richmond, Va. The PCA created considerable national buzz in the lead-up when it abruptly canceled a panel discussion featuring David French, the highly regarded author and New York Times columnist.

The panel carried the innocuous-sounding title, “How to Be Supportive of Your Pastor and Church Leaders in a Polarized Political Year.” The reason for canceling it? French, himself a long-time PCA member, was deemed too “divisive.” This despite being a well-known, self-identified “conservative” and PCA adherent. Ironically, the loudest and most divisive voices won the day.

Keep ReadingShow less
Fannie Lou Hamer

Fannie Lou Hamer testifies at the Democratic National Convention in 1964.

Bettmann/Getty Images

60 years later, it's time to restart the Freedom Summer

Johnson is a United Methodist pastor, the author of "Holding Up Your Corner: Talking About Race in Your Community" and program director for the Bridge Alliance, which houses The Fulcrum.

Sixty years have passed since Freedom Summer, that pivotal season of 1964 when hundreds of young activists descended upon an unforgiving landscape, driven by a fierce determination to shatter the chains of racial oppression. As our nation teeters on the precipice of another transformative moment, the echoes of that fateful summer reverberate across the years, reminding us that freedom remains an unfinished work.

At the heart of this struggle stood Fannie Lou Hamer, a sharecropper's daughter whose voice thundered like a prophet's in the wilderness, signaling injustice. Her story is one of unyielding defiance, of a spirit that the brutal lash of bigotry could not break. When Hamer testified before the Democratic National Convention in 1964, her words, laced with the pain of beatings and the fire of righteous indignation, laid bare the festering wound of racial terror that had long plagued our nation. Her resilience in the face of such adversity is a testament to the power of the human spirit.

Keep ReadingShow less
Kamala Harris waiving as she exits an airplane

If President Joe Biden steps aside and endorses Vice President Kamala Harris, her position could be strengthened by a ranked-choice vote among convention delegates.

Anadolu/Getty Images

How best to prepare for a brokered convention

Richie is co-founder and senior advisor of FairVote.

As the political world hangs on whether Joe Biden continues his presidential campaign, an obvious question is how the Democratic Party might pick a new nominee. Its options are limited, given the primary season is long past and the Aug. 19 convention is only weeks away. But they are worth getting right for this year and future presidential cycles.

Suppose Biden endorses Vice President Kamala Harris and asks his delegates to follow his lead. She’s vetted, has close relationships across the party, and could inherit the Biden-Harris campaign and its cash reserves without a hitch. As Rep. Jim Clyburn (D-S.C.) suggested, however, Harris would benefit from a mini-primary among delegates before the convention – either concluding at the virtual roll call that is already planned or at the in-person convention.

Keep ReadingShow less