Guest Essayist: Gennie Westbrook

The Thirteenth Amendment to the U.S. Constitution, ratified in 1865, outlawed slavery throughout the United States. The Fourteenth Amendment, ratified in 1868, defined citizenship and prohibited the states from violating equal protection and due process of law for all persons. During Reconstruction following the Civil War, states of the former Confederate States of America were required to ratify these amendments before readmission to the Union, and as long as Union troops occupied the defeated South, the rights of African Americans were somewhat protected. Once Reconstruction formally drew to a close in 1876, however, freedmen and their descendants lost these constitutional legal protections and were unable to put into effect their rights to life, liberty, and property.

Though specific restrictions varied from state to state and even from community to community, a patchwork system based on Black Codes imposed racial segregation across the South in the years immediately following the Civil War. In the North, African Americans suffered from an informal system of de facto segregation. Economic opportunities for African Americans were extremely limited throughout the country. In the South the crop lien system and sharecropping kept both freedmen and poor whites in a persistent state of indebtedness, and in the North racist hiring practices often permitted African Americans only the most menial jobs. Injustice against blacks was widespread because of the persistent attitude of white supremacy among many whites. The New York Herald expressed the prevailing assumption: “The white man—the man of the superior race—will always have the ascendancy.” Lincoln’s former Secretary of the Navy, Gideon Welles, wrote in 1871, “Thank God slavery is abolished, but the Negro is not, and never can be, the equal of the White. He is of an inferior race and must always remain so.”

Against this background of injustice, the U.S. Congress had enacted its first civil rights law, the Civil Rights Act of 1866. It guaranteed citizenship and the same rights enjoyed by white citizens to all males “without distinction of race or color, or previous condition of slavery or involuntary servitude.” President Andrew Johnson vetoed the law, and Congress overrode the president’s veto. This 1866 law became the precursor to the Enforcement Act of 1870 and, later, the modern United States Code Sections 1981 and 1982.

The Civil Rights Act of 1875 went a step further than the 1866 law, outlawing racial discrimination in most public places. It stated “All persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances [transportation] on land or water, theaters, and other places of public amusement . . . and applicable alike to citizens of every race and color.” A regulation of private conduct, it prohibited all persons from denying on the basis of race any person’s equal access to such facilities.

In five cases that originated in Kansas, California, Missouri, New York, and Tennessee, African Americans sued businesses that either denied them service outright or allowed access only to segregated facilities. They argued that the discrimination they faced in hotels, theatres, and railroad accommodations violated the 1875 law. The business owners argued that the Civil Rights Act of 1875 was an unconstitutional infringement on their property rights to run their businesses as they wished. The Supreme Court combined the similar cases in order to consider the constitutionality of the 1875 law.

In an 8-1 decision, the Court’s majority ruled that the 1875 law was unconstitutional. Justice Joseph P. Bradley wrote for the majority, implementing a narrow interpretation of the Thirteenth and Fourteenth Amendments. Bradley explained that racial segregation in hotels, railroad cars, and theaters—the kinds of public places that would later be called “public accommodations”—was an example of private discrimination. The Fourteenth Amendment only prohibited state abridgement of individual rights, the Court held, not abridgement by private individuals. The 1875 law was not authorized by the Fourteenth Amendment because it regulated private behavior.

Turning his attention to the Thirteenth Amendment, Justice Bradley wrote that it outlawed slavery itself, and segregated or “whites only” facilities were not “badges or incidents of slavery.”

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…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…Mere discriminations on account of race or color were not regarded as badges of slavery…

Justice John Marshall Harlan of Kentucky, who had briefly been a slaveholder, wrote the lone dissent, arguing against the majority’s narrow interpretation of the Thirteenth and Fourteenth Amendments. He noted that the entire purpose of the Civil War Amendments was to empower Congress to legislate to prevent racial discrimination. Otherwise,

that race is left, in respect of the civil rights under discussion, practically at the mercy of corporations and individuals wielding power under public authority…
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 Supreme Court declined to further the constitutional principle of equality. Soon, southern legislatures enacted Jim Crow segregation laws, codifying white supremacy and discrimination.  When those laws were challenged, the Supreme Court officially endorsed segregation and gave its stamp of approval to a doctrine of “separate but equal” in Plessy v. Ferguson (1896). In that case, Justice Harlan once again wrote a powerful dissent. Not until the Civil Rights Movement of the 1950s and 1960s would the Supreme Court counteract these unjust precedents and begin to support the constitutional principle of equality in the United States in cases such as Brown v. Board of Education (1954), and Jones v. Alfred H. Mayer Co. (1968).

Civil Rights Cases (1883) Supreme Court decisions:

Gennie Westbrook, formerly a classroom teacher, is a Madison Fellow (2000 TX), and senior advisor for education at The Bill of Rights Institute.

Sources Consulted

Clare Cushman and Melvin I. Urofsky, eds. Black, White, and Brown: The Landmark School Desegregation Case in Retrospect. Supreme Court Historical Society, CQ Press, 2004

William Gillette. Retreat from Reconstruction, 1869-1879. Louisiana State University Press, 1979.   Express Gazette, Cincinnati and New York, November 3, 1883, Unconstitutionality of the Civil Rights Bill

“The Rise and Fall of Jim Crow,”

Melvin I. Urofsky, “Civil Rights Cases” Encyclopedia Britannica

2 replies
  1. Ralph Howarth
    Ralph Howarth says:

    In American Jurisprudence, there needs to be clear delineation of the very loose term “rights”.

    First, there are natural rights, second civil rights, and third political rights. Natural rights are those that are universal of being human, and no state and no cadre or court of men can let them. Natural rights are those that are not under the power of any state. Civil rights are legal procedural rights namely Due Process as the right to defend yourself in court, and Equal Protection as the right to sue somebody. These civil rights are fundamental to protecting natural and political rights from the state and any other persons. As such rights are procedural in nature, they often require the assistance of a lawyer to navigate them to assure their client gets the representation in legal procedures without undue neglect and missing of deadlines for filings.

    Civil rights alone do not answer the question whether the laws of a particular state are just, moral, or fair. Such matters of fairness of “law and equity” are in the realm of political rights. Political rights pertains to being a citizen in a republic. A principal of a republic is that it is unjust to impose a law on citizens who have no say in the formation of such laws. Justice Harlan should have instead honed in on the 14th Amendment citizenship clause to drive home that a citizen of a state ought to have rights equal to any other citizens; but such an argument could only go so far because the 14th Amendment ONLY put Civil Rights under the jurisdiction of federal courts and not political rights. This is because the US is a collection of societies of separate sovereign states where supposedly any citizen of the US is free to move about from state to state if they find one society is not to their liking. This national political right is ingrained in the federal constitution as the Privileges and Immunities Clause. Justice Harlan ought to have argued that instead of proscribing freedom of association.

  2. Publius Senex Dassault
    Publius Senex Dassault says:

    Thank you Ms Westbrook for bringing us this essay. Ralph, thank you for a VERY enlightening reply.

    These essays demonstrate that every judge brings their biases and prejudices into the court. Under normal civil and criminal court cases ascertaining the facts and applying the law is fairly straight forward and the judge’s biases are not a factor. But when determining what law itself, and the Constitution in particular says and means; it is foolishness to think that a person’s prejudices and political leanings do not influence their decisions.

    We see it lived out daily. Judge Ginsburg boycott’s Trump’s inauguration ceremony. A political statement. Judges stay on the court long after they are physically and perhaps mentally fit to serve to avoid being replaced by someone with a different bias, or to establish a new tenure record. Judges are human. Perhaps better trained and eminently qualified to serve, but human with all its glories and foibles.

    It struck me that a former slave owner was the lone dissenter. Often those who are liberated from a oppressive system can best opine on its true realities. Star Parker was captive to the State’s social welfare system. Now that she escaped she is an ardent and articulate opponent.

    “gov’t grew more powerful after King, much of it inspired by civil rights leaders. More laws, more spending, more politicians and bureaucrats telling people what to do and how to live. America became less free.

    “the most famous line of King’s speech, that his children would be judged ‘not by the color of their skin, but by the content of their character.’

    “But the laws that followed were driven by gov’t policies defined and motivated not by content of character but by race, gender, and income. King affirmed, in his speech, America’s unique greatness, and the greatness of its founding documents. His appeal was to let blacks participate equally. What we got were generations that denigrated our founding values and documents.”



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