Tuesday, August 14, 2018

Rolling Back Civil Rights

After the passage of the Civil Rights Act of 1875, Congress enacted no further civil rights legislation for more than 80 years. The difficulty passing the weakened legislation indicated that the Radical Republicans’ idealistic experiment had come to an end. Moreover, though Republicans made gains in the House in the 1876 elections, the political battle that erupted over disputed presidential returns (and its resolution) effectively ended Reconstruction.

The 1876 presidential contest between Republican candidate Rutherford Hayes and Democratic candidate Samuel Tilden caused an electoral crisis when South Carolina, Florida, and Louisiana submitted a set of electoral votes for each candidate. On January 29, 1877, the House adopted an independent 15-member Electoral Commission consisting of Representatives, Senators, and Supreme Court Justices—apportioned on party divisions in each body—to investigate the disputed electoral returns. The six black Representatives who served in the House during the discussion of the disputed election—three from two of the contested states—were among the minority opposing the establishment of the Electoral Commission. John Lynch made two speeches opposing the commission and later observed in his autobiography that the office of the presidency was too important to be placed in “a game or scheme of luck and chance.”122Joseph Rainey noted the constitutional quandary of establishing the commission, since the framers had never contemplated such a mechanism. “Once permit the Constitution to be made a mere piece of pottery to fashion as party exigencies seem to demand,” he warned his colleagues, “and in that moment we are cut adrift from safe moorings and carried beyond rescue upon tossing billows of the political sea.”123

This Thomas Nast sketch from an 1877 Harper’s Weekly made note of an African-American man voting for a Democrat. Until that time, the Republican Party was the party of most blacks.  Image courtesy of Library of Congress
The Electoral Commission ruled eight to seven in favor of electing Hayes by one electoral vote over Tilden. Though no black Representative was afforded time to speak on the subject, all voted in favor of the commission’s conclusion, supporting the election of a Republican candidate over a Democrat, despite their reservations about the commission’s formation.124 However, Hayes’s victory came at the cost of Congressional Reconstruction. The new administration pulled federal troops out of the South, unbinding southern Democrats’ ambitions to roll back the decade-long experiment in fostering racial equality. The new Republican President did little for black civil rights. A disillusioned John Lynch noted that “the Hayes administration not only completed the destruction of what had been thus accomplished, but made any further progress . . . absolutely impossible.”125

Without federal protection for southern blacks, the next decade marked a period of “redemption”—the capture and control over local and state governments by white supremacists in the South. Historian C. Vann Woodward notes that the racial interaction during Reconstruction “was strained. It was also temporary, and it was usually self-conscious. It was a product of contrived circumstances.”126 African-American politicians examined anew their loyalty to the Republican Party. From his home in Macon, Georgia, Jefferson Long began encouraging black voters to vote for Independent Democrats if Republican candidates proved unsatisfactory. Long himself campaigned for several Independent candidates in the 1870s and 1880s.127Robert De Large noted during his congressional service, “I hold that my race has always been Republican for necessity only.”128 After leaving Congress, he and fellow South Carolinians Richard Cain and Alonzo Ransier allied with Martin Delany—a disillusioned former Republican who had abandoned the party for the Democrats and talked of a third party for African Americans in the South.

A series of Supreme Court decisions throughout the last three decades of the 19th century negated civil rights legislative gains and circumscribed protections for freedmen under the Reconstruction Amendments. The Supreme Court rejected the 1873 Slaughterhouse Cases—a set of three lawsuits initiated by Louisiana butchers challenging a state law that centralized the state’s slaughterhouses into one private company. The butchers claimed protection under the 14th Amendment against state incursion on “privileges or immunities.” The decision limited the ability of the federal government to protect Black Americans by confining its power to influence the states on behalf of individual rights. The United States v. Cruikshank and United States v. Reese decisions weakened the 15th Amendment’s protection of voting rights in March 1876. Cruikshank initiated an erosion of the Civil Rights Act of 1875, as the court ruled the act did not guarantee First Amendment Rights. The high court in the Reese case opened a Pandora’s box with its finding that the 15th Amendment did not confer upon any individual the right to vote, but merely forbade states to give any citizen preferential treatment. In this light, the right to vote derived from states, rather than the federal government—leaving state governments to determine how voters were qualified and under what circumstances voting would be allowed. In United States v. Harris (1883), the court determined that federal laws did not apply to private persons, which proved a blow to the Ku Klux Klan Acts. That finding essentially unleashed white supremacists to attack any African American seeking to exercise his political rights.129

On October 15, 1883, the rollback of civil rights continued when the Supreme Court struck down the 1875 Civil Rights Bill’s weak provisions. Ruling 8 to 1, the court declared the law unconstitutional in the Civil Rights Cases. The majority opinion asserted that individuals were relegated to appealing to state governments—which proved unfriendly to Black Americans in the South—to stop such discrimination.130 The two black Representatives serving at the time, James O’Hara and Robert Smalls, attempted unsuccessfully to revive portions of the Civil Rights Bill shortly thereafter. In December 1884, O’Hara offered an amendment to an interstate commerce bill prohibiting discrimination on railroad cars. Joined by Representative Smalls on December 17, the two made arguments echoing those of their predecessors who fought for the Civil Rights Bill. However, O’Hara and Smalls served in a minority and were speaking in a different era. Even many congressional Republicans viewed racial equality as an irreconcilable division between the North and South that should be ignored politely rather than discussed.


The 19th-century black Congressmen’s inability to rise within the congressional power structure circumscribed their legislative legacy and relegated them to a symbolic representation of the accomplishments of the Civil Rights Amendments and northern victory in the Civil War. Yet they remained forceful advocates for the civil and political rights of their constituents, despite the obstacles they faced in and out of Congress. Their role as surrogate representatives for millions of newly freed African Americans provided a representational blueprint for black Members in future generations. The mantle of advocacy figuratively passed from the pioneer generation when the aged John Lynch—living in Republican Oscar De Priest’s Chicago district in 1928—advised the new Member of Congress to place the interests of the African-American community before even partisan loyalty. “We need a man who will have the courage to attack not only his political opponents,” he told De Priest, “but those within his own party who fail to fight unfair legislation directed toward people of color.”131

The Supreme Court’s coup de grĂ¢ce to the Civil Rights Bill marked the end of the federal government’s role as champion of freedmen. Over time, the government became impassive to the states’ diminution of blacks’ political and social status. Righteous Republicans excoriated southern Democrats for erecting an architecture of social and legal racial apartheid, while indignant southerners dismissed emblematic Republican racial initiatives as Janus-faced appeals to black voters. Both major parties regularly traded barbs about the “Negro issue” on the House and Senate floors. Thus, Congress shirked substantive legislative action to improve blacks’ quality of life, repeatedly refusing to pass additional provisions intended to safeguard their 14th and 15th Amendment rights. Recognizing that a new era had dawned, James O’Hara concluded, “It is too late for the American Congress to legislate on the question of color.”132 What would soon develop was a rigid system of segregation codified in state law and tacitly sanctioned by the federal government.


122Lynch, Reminiscences of an Active Life: The Autobiography of John Roy Lynch: 195.
123Congressional Record, Appendix, 44th Cong., 2nd sess. (25 January 1877): A60.
124Congressional Record, House, 44th Cong., 2nd sess. (28 February 1877): 2019–2020.
125Lynch, Reminiscences of an Active Life: The Autobiography of John Roy Lynch: 201.
126C. Vann Woodward, The Strange Career of Jim Crow (New York: Oxford University Press, 1955; reprint 2002): 29.
127John M. Matthews, “Long, Jefferson Franklin,” ANB 13 (New York: Oxford University Press, 1999): 875–876.
128Quoted in Timothy P. McCarthy, “DeLarge, Robert Carlos,” ANB 6: 383–384; Joel Williamson, After Slavery: 359.
129For more information, see Slaughterhouse Cases 83 U.S. 36 (1873), United States v. Cruikshank 92 U.S. 542 (1876), United States v. Reese 92 U.S. 214 (1876), United States v. Harris 106 U.S. 629 (1883), and Civil Rights Cases 109 U.S. 3 (1883). The various cases are discussed in detail in Kermit L. Hall, ed., The Oxford Companion to the Supreme Court of the United States (New York: Oxford University Press, 2002).
130Robert J. Cottrol, “Civil Rights Cases,” in Hall, ed., The Oxford Companion to the Supreme Court of the United States: 149.

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