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tv   Landmark Cases Supreme Court Landmark Case Civil Rights Cases  CSPAN  July 21, 2020 9:32pm-11:06pm EDT

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>> all persons having business before the honorable, the supreme court of the united states, are admonished to draw near and give their attention. >> "landmark >> cases, " c-span's special history series, produced in partnership with the national constitution center, exploring the human stories and constitutional dramas behind 12 historic supreme court decisions. >> mr. chief justice and may it please the court -- >> quite often, in many of our most famous decisions, are ones that the court took that were quite unpopular. >> count the vote, count the vote. >> let's go through a few cases that illustrate very dramatically and visually what it means to live in a society of different people. who help stick together because they believe in a rule of law. >> good evening, and welcome to c-span's "landmark cases, " tonight we're going to learn about a case that you may not have heard about.
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it's the civil rights cases of 1883, consolidation of five cases brought to the supreme court to help define the 14th amendment. tonight we're going to learn about reconstruction america and the court during that period and the decision they made in this case that affected the lives of african-americans for the next 60, 70 years. lots of history tonight, and we welcome your participation. let me introduce you to our two guests at the table to help us understand this important case. daniel holly walker is the dean of howard university's law school here in washington, d.c., she has federal court experience, at one time she clerked for carl stuart, chief justice of the fifth circuit court of appeals. welcome, great to have you. >> thank you. >> peter kushnow is a republican, and he is also a partner at a law firm in cleveland, former member of the national labor relations board appointed by president george w. bush. >> welcome to c-span, glad to have you. >> thank you. >> when you go through high school or perhaps even college, you learn about plessy ferguson,
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the dread scott decision, this one not so much. if you had been advising us, would you have put this case on a landmark cases list? >> i would say absolutely. it deserves the same kind of treatment as dread scott and plessy versus ferguson. in some ways it's more significant because those cases have been overturned. and so the civil rights cases are still relevant because they're still cited by the supreme court today. and so i think that they definitely deserve to be on that list. >> yeah, absolutely. it's part of a continuum. if you take a look at the enforcement acts in the cases that were cited thereunder, and in addition to what daniel said, if you take a look at this particular case, as opposed to some of the other enforcement cases, krukshank or plessy versus ferguson, you've got a case that's still viable, but also presaged that gave a road map for how the act would be
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passed and face -- be able to withstand constitutional challenge. >> well, let's go back before we can go forward, and learn a bit about life after the civil war in the united states. >> so could both of you put a little bit of color onto the subject matter? this is 1870s, 1880s america, height of reconstruction. what was life like, particularly in the south, for blacks and whites, but america at large? danielle? >> the reconstruction period is one of the most important periods in american history. i think so many important things happened during that period, including the founding of many hbcus, so including howard university was founded in 1867, something that was done by general o. howard, who helped to lead the friedman's bureau, a time of great political participation for african-americans, over 2,000 african-americans held public office during that time. i think of people like robert smalls from south carolina, and it was a time in which there was a large negotiation about
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what would happen to the people who had previously been enslaved, what would their rights be? what would those bundle of rights be in terms of political rights, civil rights. a time of great uncertainty. we know that in the late 1860s, we see the rise of the ku kluks klan, partly in response to this idea that -- a great time of uncertainty, but also a time of enhanced political participation, and participation in civic life. even things like for the first time we see someone like richard greener who has recently been celebrated at the university of south carolina, became the first black faculty member. things like that are first landmarks that remained from that period for african-americans. >> it was a time of amazing tumult when we just came out of civil war.
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all of the confederate states were subject to military rule. and as danielle said, it was the growth of a clan, terror was going on, suppressed by confederate states. still, as we'll be probably discussing a little bit later, all these cases had a component to them, especially the 1870 enforcement act, trying to suppress what was going on with respect to the clan. it was a time, despite the fact that we just came through the most horrific period in terms of loss of life in the united states, history of the united states, there was still huge amounts of rebellion. there were massacres that had occurred. there was egregious discrimination. it was a difficult period of time. and the courts struggled through that. not only was it a difficult time in terms of our cultures but it was a difficult time in terms of mediating where the law was going. we had several significant amendments that were passed in short order, 13th, 14th, 15th
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amendment, we had the emancipation proclamation, the first impeachment of a sitting president. all of these things going on within the space of maybe 15 years. we think that we're living in tumultuous times now, but nothing like occurred then. >> many of the members, the majority of the members of congress had served in the civil war, and many of the justices on the court had also served. so they brought that sensibility as they were deciding these issues for the public at large. i really would like to spend a moment, because people don't have access to their constitutions. >> yes. >> and walking through the 13th, 14th and 15th amendment. so 13th, passed 1865. the 14th is celebrating its sesquicentennial this year, passed in 1868. and the 15th in 1870. >> the 13th amendment abolishes
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slavery, most important. and then section 2 of the 13th amendment gives congress, and this is what we'll spend a lot of time talking about, really empowers congress to be able to enforce basically that abolition of slavery. so that's the 13th. >> 14th amendment? >> protection clause. probably one of the most significant and used clauses in all of our constitutional jurisprudence. it's invoked on a number of occasions. in this case, unsuccessfully. and then we go onto the 15th amendment. all of these are about peace. they are an outgrowth of the institution of slavery and the second class status of blacks. the 15th amendment then ensured voting rights. the cases we're going to be discussing, five consolidated cases, civil rights cases, dealt with an attempt to enforce the rights and privileges that were granted either under the 13th, 14th, 15th amendment. now, there's an argument, and harlan makes the argument as to
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whether or not there are rights granted, affirmative positive rights granted by the 13th amendment, and also the 14th amendment. and that formed the debate between harlan on the one side and bradley on the other side. >> go back to the 14th for just a second. so section 1, of course, is the citizenship clause, which we think so much about now and are talking a lot about now in our immigration debate, the birthright citizenship clause which says if you're born here in the united states when you are a citizen. and then we think of the privileges and immunities, due process and equal protection clause are all part of the 14th amendment. >> the last section of the 14th amendment says the congress shall have the power to enforce, by appropriate legislation, the provisions of this article. >> so very similar to the section 2 of the 13th amendment. >> and, in fact, there were people lobbying for the need to pass legislation to help underscore and perhaps shore up reconstruction. >> two of those people were
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frederick douglass and senator charles summner of massachusetts. who was frederick douglass, the preeminent civil rights leader of all time. he was the martin luther king jr. of the 19th century. and, you know, heck, who wasn't frederick douglass. he was seminal to every, i think, philosophical underpinning of emancipation, possibly even the civil war. and everything that succeeded it in the reconstruction period. >> his home is here in washington, d.c. it's run now by the national parks service. if you get to washington, it's in dc we visited with our cameras and we went with historian edna green medford to learn more about the work of frederick douglass.
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>> charles sumner and douglass were kindred spirits, sumner spent his entire life fighting for the rights of african-americans, just like douglass. it is interesting, everything opportunity summer had he attempted to do something for african americans. the two men developed a friendship over the years. and so when sumner is issuing -- when he's going to the senate and he's suggesting that the 13th and 14th amendments aren't working, in terms of ensuring that african-americans are treated as full and complete citizens of the united states, while he's doing that, frederick douglass is out writing speeches, writing letters to friends and to politicians. he's writing editorials, supporting what sumner is doing in congress.
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and sumner in turn, when he's speaking on the floor of the senate, is actually referencing douglass and the kinds of discrimination that douglass had personally experienced. so the two men are working hand in hand on this measure, not sitting at the same desk and writing, of course, but they're supporting each other's aim. so when sumner dies in 1874, he tells husband friends, like douglass, please don't let my bill die, you know, make sure that it is passed. and, of course, probably as in tribute to sumner, congress does the right thing and they do pass it. >> so peter kersinaw, what did the civil rights act of 1875 do? >> there were several enforcement acts, and it was really the second one. the 1875 civil rights act was, in many respects, the precursor to the 1964 civil rights act. and what it purported to do was
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to grant equal protection, or the enjoyment of the privileges of immunities of citizens for public accommodations, whether it be opera houses, theaters, inns and public conveniences, and that was the key right there. the five cases that were brought, that were consolidated had to do with denials of the usage of an inn, an opera house, a theater, two inns, actually, an opera house, a theater, and also the 19th century rosa parks, if you will. one lady wanted to use a railroad car that was reserved for females, but was denied the ability to do that. so these cases were consolidated and brought before the court to determine whether or not the 1875 act, which purported to support the 14th amendment, granted these folks the ability to sue, the ability to seek redress under the 14th
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amendment. >> how did the country at large react to the passage of this legislation? >> i think it was a hugely controversial piece of legislation. and what was interesting is that it was really evolving. we talk about the tumultuous period of reconstruction, and going back to charles sumner. i think sumner and others said the 1866 civil rights act we pass was not enough. they went forward to passing the 14th amendment. and 13th and 14th amendment did not have the effects they wanted to have. and because of that they wanted to see a greater impact from the civil rights act of 1875. the reaction was a very strong reaction. there were in the south, for example, theater owners who said this will destroy our business, white theater owners said this will destroy our business if we are required to allow, basically, black members of the public to be able to come into theaters. same arguments were made about
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railroad cars. it's very interesting again that these 19th century arguments really mirrored the ones we see in the 20th center when it comes to the civil rights act of'64. >> we heard about frederick douglass and charles sumner, and douglass will be part of our story. i want to spend a few minutes before we get into the mechanics of the case. justice joseph bradley, and justice john marshall harlan. both of them -- one wrote the majority opinion, the other wrote the single dissent to this case. very interesting human beings. what can you tell us about bradley? >> well, bradley finds himself at the fulcrum of almost everything that occurred with respect to the enforcement acts. their reconstruction. what you see is, you know, we talk here about the 1883 civil
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rights cases. but prior to the 1883 civil rights cases, there were a couple cases, but one, the krukshank case that bradley wrote dealt with the 1870 enforcement act which i would argue probably had greater significance in the context of reconstruction, and the potential impact on black americans than the 1875 civil rights act. and what that is, it was the first anti-clan act. and among other things it was the enforcement mechanism for the 15th amendment. it would have protected the ability of -- or it did purport to protect the ability of blacks, for example, to seek redress when they were denied voting rights, other things such as gun rights, the way it was worded was directed particularly at the clan, and it was supported, or supporting the 14th amendment. bradley wrote the opinion that struck that down, the 1870
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civil rights act, the enforcement act. and that was devastating in that context of where the united states was at that particular moment in time. because there really was then no means to check the clan. and the clan was working as kind of the terrorist arm of the democratic party at the time enforcing segregation, enforcing second class status or third class status for blacks. and bradley wrote the majority opinion which followed, in large part, the way the civil rights cases were decided. that is, deciding them on the basis of the requirement of state action. that is, if there was not state action, or some type of state deprivation of equal protection, then there was no means of redress. >> there's a really interesting part of his biography that we should tell before he gets to the majority opinion on this case. he was -- before he got appointed to the court in 1870 he was nationally known as a
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litigator. so he had a national reputation. and in the 1876 contested election, as you know, they set up a commission to decide the outcome of it, he was the 15th member and the deciding vote on that commission because he was seen as neutral. >> the others were all partisan. >> even though he was a republican, and was appointed by graham in 1870, he was seen as neutral, it was very important. >> he essentially was a one-man vote on the outcome of the election. can you tell us more about that? >> yeah. so, i think the contested election, obviously, of 1876, when they set up this bipartisan commission, there is a lot of question, obviously, because of the irregularities that were thought to be there in the electoral votes in many states. he really becomes, even though he is a republican, thought to be someone who is -- who is really the voice of reason a lot in this debate. >> and i think also a notion that there was a great political compromise that was
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going on, too. because the question was really, what would hayes give in order to become president. and really, that has a huge impact on this story because it's really a return of kind of states'control over their own ability to govern themselves. so that becomes a huge part of the compromise, and really what becomes the end of reconstruction. >> hayes moves quickly to end reconstruction. >> the 1870 compromise can't be overstated. what happened there was. in order for the democrats to support the determination that bradley made that gave the election to rutherford b. hayes, in exchange for that, they would -- meaning the president would withdraw union troops from the south. you think about the implications of that. now, we're only just barely a decade after the civil war.
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it's a time of the carpet baggers, a time of military governorships. the clan was starting to grow and become more powerful. but it was being suppressed by the presence of federal troops. with that compromise, federal troops leave and now there's no enforcement mechanism. that is compounded by the fact that you have the civil rights cases, not only the 1883 civil rights case, but the krukshank case, so there were no protections for blacks. the compromise of 1877 probably had a greater bearing than the legal cases in terms of the protection of the rights of blacks in the old confederacy. >> but bradley becomes a figure then, a key figure through these cases and also through the compromise in the end of reconstruction. >> if people ever wonder if one person can change, impact history, here's a story, and his name is basically lost to most americans who had an enormous impact. >> exactly. >> in fairness if you think it
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through, although the compromise of 1877 was affected because of bradley's vote that made the deciding vote for rutherford b. hayes, sam tillden did the same thing. when bradley gets the bad rap for being the guy that cast the vote that had the troops withdrawn, either way it would have happened. >> if you read the briefest of biographies about him, it suggested he was going to go for tillden, he really came to it of his own accord. it's 9:20. i want to get to calls in about two or three minutes. we must talk >> about justice john marshall harlan who wrote the dissent. it's one of the more significant dissents of the supreme court. john marshall harlan from danville, kentucky served on the court for 33 years, appointed first by hayes in
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1877. he earned the name the great dissenter. why? >> he writes two of the most famous dissents in history, the civil rights cases dissent, and the >> dissent in plessy versus ferguson. still used very much today in the way we talk about 14th amendment jurisprudence. as justice ginsberg has said, very famously about harlan, it's rare when someone writes a dissent that later becomes the law. right? and so we see harlan do that in plessy versus ferguson where he says the separate but equal doctrine is not one that should stand. harlan is an interesting person because he was slave owner, also opposed the emancipation proclamation, opposed the 13th amendment, then after the election of grant, he changes his mind about what really should be happening in the country moving forward.
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and begins to be a supporter of the 14th amendment, and overall, the reconstruction amendments. and so it is also rare in public life to see someone have that kind of change in their views. >> he, in addition to coming from a family of slave owners, had a mixed race, half brother, who was a very important person in his life throughout his life. how does he bring all this together to the court? >> there were probably three major influences on harlan's life that informed how he approached the law, at least with respect to the civil rights cases and plessy versus ferguson. >> the first was probably, i think danielle touched upon it, he had a complex approach to the whole matter of race. his father was a slave owner, and as you indicated, it is likely, seems that, you know, there's not been any genetic testing, but on most accounts he probably did have a brother who was half black, fathered by his father. his father was a slave owner. if you read the literature on
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it, he was, at best, conflicted about the institution. it said that he would remonstrate his employees who didn't treat slaves well. the institution was still there. his family was a very prominent family. his father was an attorney general. he became an attorney general. they had a nomadic political dynamic going on. they were whigs, then the no nothing party, then the union party, he was elected to attorney general under the union party and then he became finally a republican. he, himself, meaning harlan, had kind of an unusual approach. he is not somebody who you could define in a cookie cutter fashion. yes, he wrote some of the great dissents with respect to civil rights. but he's also someone who upheld massagnation laws.
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he did single out the chinese races being some race that's different from everyone else and wasn't necessarily really interested in acknowledging that someone who is born to someone of chinese descent became an american citizen. so this is someone who was very interesting in those respects. probably what informed much of his jurisprudence was not only his family background and personal experience with respect to his half brother, but also he was someone who, today, we would call a fundamentalist christian, a deeply religious man, presbyterian. if you look at some of his writings, you can see some of that. in the manner in which it was described how he read his dissent, it was fashion fiery passion, like he was preaching from the pulpit. he spoke to law clerks, not
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treat someone as jew or greek or black or white, but all god's creatures, and believed the declaration of independence was the seeds for the entire abolitionist movement. >> he married a woman who was decidedly anti-slavery. that's another important key influence on him. >> so i mentioned that you are what makes these shows interesting for us. >> we hope you'll participate. join us by >> phone 202-740-8900. if you live in the central time zones, mountain or pacific, tweet us, use the hasthag landmarkcases, and we also have a conversation going on our facebook page with people putting comments about the case. find that easily on facebook, and c-span's area. three different ways to be involved. we hope you'll join us with your questions or comments about this very interesting case from 1883. let's take our first caller, who's been patiently waiting. roger is decatur, georgia, you're on the care. >> good evening, thank you for
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c-span. so i have a question about a couple of phrases that we hear a lot. one is the idea of the constitution being color blind. but it's my understanding that the civil rights laws, when they were passed by congress, said that all people shall be subject to the same pains and privileges as white people and no other, that it actually was a standard compared to white people. so what's happened to that? the other phrase is badge is an incidence of slavery. i'm not sure where that arose. but it certainly seemed to be stronger back in the era of the warren court than it is today. if you could trace those two phrases. >> do you want to take the color blind constitution? >> yeah. i think that, you know, when we talk about a color blind constitution, that's not something that in the first,
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say 110 or 120 years of our jurisprudence was something that you saw in any case decisions. in fact, it's something that evolved over a period of time. and it came from a number of different constructions. in fact, if you take a look at the civil rights cases, and even take a look at, i mentioned krukshank, and there's other cases during that period of time, we start to swerve into this notion of a people, citizens, and then we get into race. if you look at the debate between bradley on the one hand and harlan on the other, there's a real question as to what constitutes a citizen, and whether or not a citizen is somebody who is part of the people, there are those who believe that people, for example the dread scott case, only consisted of white americans. people then transformed into citizens, and enjoyed privileges and immunities. then you had blacks and whites
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in the harlan dissent where harlan says the 13th amendment was not simply just an abolition of slavery, but an affirmative positive grant of the right not to be discriminated against, along with the 14th amendment, he says. we see a gradual evolution of the constitution as being color blind. that is not nondiscriminatory, but affirmatively giving capacity under the constitution in a color blind fashion. >> the second question? >> and i'll also add that i think the color blind constitution, i take the caller's point to mean that it is without context, that we've begun to understand this notion of a color blind constitution as divorcing the 13th, 14th and 15th amendment from their original intent, which was really to make sure that black citizens enjoyed the same benefits of citizenship. >> and harlan does talk about that in his dissent, as we come to. especially with the privileges
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and immunities clause of the 14th amendment. he says there's some things that white citizens, when they're born, they enjoy certain rights and privileges. so the ability to go to the theater, the ability to check in to a public inn, or to ride on whatever railroad car. in that sense it is comparative. right? so this idea of what it means to come into your full rights as a citizen when harlan compares that, he says, these are the rights that we think of inherent to white americans when they're born into their citizenship. we have to begin to treat black americans in the same way. even though it's interesting that in the constitution is color blind, that phraseology that happens in plessy versus ferguson, he starts off that entire dissent thereby talking about white supremacy and how whites will always be superior to black americans in every way that you can imagine, except for when it comes to the constitution and the way that they're treated under the law. >> glenn is watching us in freeland, michigan, hi, glenn, you're on.
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>> thank you all very much. and before i ask my question, i'd just like to thank mr. krisanow for all the work he's done on the immigration issue and how it can have an impact on lower income americans. i really appreciate everything he's done on that. and i also liked his novel, by the way. anyway, my question was about actually white americans, and how this might have had an effect on them. because we were having large waves of immigration around this time before the 1924 act cut things back. and you had stuff like no irish need apply and that kind of thing. certain white groups, like irish catholics, jews, italians, et cetera had a certain amount of discrimination against them. obviously it was a different thing than blacks in the deep
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south. and i was just wondering, very -- in these civil rights acts, as i understand it, if you owned a private business, you should have the right to just pick and choose who you want to serve because it's your business, you did the hard work to create it or whatever, so you should have that right, was that basically the theory behind it? >> thanks, glenn, let me jump in at that point. the theory of the case as private businesses. >> to some extent it is, you can take a look at the competing arguments of bradley and harlan. it was the fact that the 14th amendment, according to bradley, if you take a look at the second sentence, talks about state action twice. and that there isn't a reached
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toward private action, private individuals. and so for more than 100 years what you had was the inability of congress, at least through the auspices of the 14th amendment, to regulate private action that didn't have at least through the 14th amendment, didn't have state action or state sanction behind it. it was arguable even under the civil rights cases that something that wasn't necessarily state action, but may have permitted or given some type of license in terms of monopoly protection to private endeavor could have been circumscribed under the 14th amendment. i think it's one of the most interesting parts of the civil rights cases, we'll come to that more in a second. the majority of the opinion putting this focus on state action versus the action of private individuals. >> i think the idea of this timeline, where we see civil rights act of 1866, then the passage of black codes that essentially tried to, again, marginalize black americans.
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then they say that is not strong enough. so congress put the 14th amendment, we have that ratified, and we believe, we've given ourselves the power to enforce what we've just said in the 14th amendment and they passed the 1875 civil rights act on that understanding. so i think the majority opinion in saying, okay, they did not have that authority, authority they just essentially gave themselves in the 14th amendment, i think, is one of the most fascinating parts of this case is the interpretation of language that is very close in time to the time it was adopted. >> on twitter, david wolf says is the majority opinion still cited on case law as new cases? what are some examples? >> yeah, i think the most prominent example is the morrison case, the violence against women's act case that we saw in which a part of the violence against women's act was struck down, which would have given women a chance -- anyone who's the victim of domestic violence a chance to
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sue a private rights or cause of action. and the supreme court struck down that part on the notion that the civil rights cases said there had to be state action. it couldn't just be private action, basically private domestic abuse. but instead violence against women. >> but instead that there had to be some state action. so i think, yes, there is a lot of resonance, and morrison is probably the most important example of that. >> and one notable thing in the current court you've heard about the masterpiece bake shop case, and nine of the friend of the court briefs cite the 1883 civil rights case in their brief. so it is still, as our two guests said, it has not been overturned and it is still very much part of our law. next is rich, watching us in clifton, virginia in the d.c. suburbs. you're on the air. >> good evening, a wonderful program. a question, between the 1883 decision and the laws passed, 70 or 80 years later, there
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were no changes to the civil war amendments, yet we've seen different judicial interpretations of the constitution. a cynical question, does this demonstrate that if we want to change the constitution we don't need an amendment or a constitutional convention? we just need five justices to operationally change the constitution, to say no to starry decises. second question, if the supreme court of 1883, how many of the justices were appointed by president lincoln? thank you. >> thanks very much, we're going to get to that in our very next section. so the five judges can change the view of the constitution? >> well, yeah, five judges could change how the constitution is interpreted. we see that all the time. that's one of the reasons why we have these titanic confirmation battles. because we understand that
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while starry decises is an important principle, that if you have five justices who decide to go in a certain direction, a constitution, or at least the interpretation of it can change. you've got in the country at least two competing views as to how constitutional doctrine should be interpreted. you have those who, for example, you could almost categorize the judges, there is this and a leah wing, justice thomas wing, that looks to the text of the constitution, and then you have those who have a more expansive view of the constitution and the authority that's granted under the constitution by congress that view the constitution as a document that changes with the passage of time and advances in technology, for example, or changes in mores. >> but i would also say in this case the -- when the civil
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rights act of 1964 was drafted, they were very aware that the civil rights cases of 1883 had not been overturned. they thought carefully about the constitutional underpinnings of the civil rights act of 1964. which we'll come to more. including the interstate commerce clause of the constitution as one of the major constitutional underpinnings comes from the fact that they did not believe necessarily the civil rights cases would be overturned. >> so the last caller asked about who the court -- who was on the court in 1883, and whether any of them were lincoln appointees. let's take a look at what the court looked like back then. one democrat, appointed by andrew johnson, the rest republicans, chief justice morrison wait, samuel freeman
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miller, william burnam woods, joseph bradley, harris gray, arthur t. stanley matthews, and in 1970, there was a famous survey of who were the great or near great justices. five of the members of that court, according to chief justice ended up as greats or near greats. can you tell us just briefly about the character and make up of the wait court? do you know anything about it? >> i've studied a little bit. i can tell you this much. if you take a look at bradley, harlan, wait and some of the others, these are individuals who i think very often greatness is foisted upon you. we were in a consequential period of time where some of the greatest issues of this country were being decided. and civil rights cases, the 1883 civil rights cases, krukshank and other cases similar to that established the framework by which we've mediated racial relationships now for more than 100 years. as danielle indicated the 1883
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civil rights acts haven't been overturned, they haven't been. they are still good law in terms of state action. there's a lot of challenges to it, and maybe there's some -- a little kind of winnow away at the edges, but it's still good law. and during the that tumultuous period of time, during reconstruction, many of these cases were being decided. and because of the consequence of those cases, i think that many of these justices rose to the level of being considered great or near great. >> and it's, i think, one of the other things about this court is that many of the tough issues that they took on, like the interpretation of the 14th amendment, are things that still resonate today in terms of supreme court cases. so i think, for example, you could compare them to the warren court of the tumultuous 1960s. so i think that is the reason that courts begin, because of their circumstances, to be shaped, and to be remembered is partly because of the times that they're in. >> morrison wait was our 17th
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chief justice, served on the court for 12 years, was known as >> a preodigious worker. they were meeting in the old supreme court chamber in the basement level of the capital. they moved to what is now called the old senate chamber, march 29th, 1883 when it was heard and you're seeing a picture of it as it was set up for the supreme court. it's still a room that's very much in use. many of the ceremonial meetings, including the ceremonial swearing in of senators happens in that room. senators often go in there for private sessions behind closed doors as well. we'll take a couple calls and then i want to tell you about another person lost to history who was the solicitor general who argued these cases. let's listen to dave in spokane valley, washington.
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>> thank you, c-span, you guys are great. i'm an addict. history, and history in the making. i watched all last season, and you guys are awesome. my question, i want you guys to comment on a theory i have about slavery as an economic model, and starting with the union taking the troops out of the south, and then supreme court cases that affirmed this model. but in different ways. i'm a little nervous, sorry. and how when the civil rights acts come up and they do get passed, like'64 and'65, with johnson, it was because of civil unrest. and it's just an appeasement of -- you know what i'm saying? >> the acts were passed more as
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an appeasement to society? >> i'm not sure i agree with that. in terms of slavery as an economic model, i'm not an economist, but i'm willing to play one on tv. i am a labor lawyer. if fact of the matter is, if you take a look at the south and the use of slavery as an economic institution, or how it fares in terms of the economy, i think a lot of historians and economists would say that slavery actually retarded economic development in the south because it fore stalled advances that otherwise would have occurred because you have not just cheap labor, but labor that's for free. so you don't start to do -- take the actions necessary to develop your economy, diversify your economy, and you take a look at the north, for example, the north was light years ahead of where the south was, because there had to be adaptation or competition. when you have cheap or free labor, there is not the incentive to do things such as mechanize.
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>> i'll leave that to the economists to determine whether or not slavery as an economic institution made sense. from a moral perspective, it didn't. for sheer numbers, it didn't, it stifles innovation. >> i want to get to the cases, one of the things that was interesting to me in looking at these cases, we can show them on screen, u.s. v stanley, ryan, nichols, singleton and robinson, the plaintiff versus the railroad and memphis and charlston railroad is the regional diversity, kansas, california, missouri, new york and tennessee. these are not deep south states. >> that's right. >> so the lives of black americans were being challenged, and in states all across the united states. >> absolutely. i think the question of public accommodations, which is something that even in the north, you know, the question
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of whether you would see a black american sitting next to you or checking into the same inn that you were checking into, those were contested questions in every part of this country. >> >> we see some cases coming from san francisco in california and from new york, the theater case. that's just a reminder that what was being decided, whether in the political system through the civil rights act of 1875, or by the supreme court here in the civil rights cases, that these were questions that affected every american. these were not just questions that were relevant to people in the south. >> now, i mentioned that i wanted to tell you about the u.s. solicitor general at the time, his name was samuel field phillips and as you saw these were four of the five cases where the united states is defending its position in the civil rights legislation, he argued those cases for the united states as we learn unsuccessfully. >> but an interesting background. he was solicitor general during 12 years under four different republican presidents. and when he returned to private practice when a democrat was
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elected, he then argued, plessy versus ferguson before the supreme court. he belongs in the textbooks about civil rights history because of his arguments on behalf of the rights of black americans in this country. and we just learned about him when we were getting ready for this case. there are a number of other lawyers as well, but he has the long history as solicitor general, and we thought you'd like to know about him. let's take a telephone call from caleb in houston, texas. you're on, caleb. >> caller: hi, how you doing, my name is caleb, i'm a student at texas southern university, a graduate student, i'm a graduate of hampton university, just had to shout that out. i was just wondering, throughout history, many scholars take sides between segregation star by custom or by law. i was just wondering what you guys'opinion was on that? >> i think that it -- i think one of the questions that these
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cases raise, and many of the questions that we'll see raised in landmark cases, all of the season, is the question of how does -- what role was law really play in societal change? does the society change first and then the law follows? does the law change first and society follows? and here you see congress, through the civil rights act of 1875, and through the adoption of the 13th, 14th and 15th amendments, really pushing towards a society that is really taking on racial inequality in a way that we sea major pushback against, and not just pushback in terms of political debate, but pushback in terms of violence. and so we see the kind of reaction being one of violence. >> >> and so i think the law is something that can move ahead before society moves ahead, if you think of a case like brown versus board of education, but you're always going to see that backlash. law in itself, writing a case, writing a statute can't in
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itself change society. but it can become one of the important markers for that change becoming a reality. >> john is up next, springfield, illinois, you're on the air, welcome. >> caller: good evening. hi, john, go ahead, >> please. >> caller: both panelists have sort of mentioned this. but i have two points. >> number one, essentially the civil rights cases of 1883 say as long as you as an individual discriminate, the supreme court -- that has never been overturned. all civil rights laws involved civil rights act and the interstate commerce clause. secondly, i'd like to say -- ask the members to talk about cases the supreme court ignores, the 1947, a federal employee was fired for advocating integration of blood blanks in
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washington, d.c. at that point the only person who did that was the communist party of the usa. she was fired. that is another decision the supreme court ignored. and i think the supreme court in this country has a history of ignoring inconvenient decisions. >> well, thanks. let me use his case to ask the question, which i should have, which is why did the court decide to take this package of cases? they make the decision to hear it or not. why did they make the decision to bring this before the court? >> one of the reasons is where we were in society. >> they need today settle it? >> danielle made a good point, the previous caller alluded to, does society push the law or does the law push society. on rare occasions, does the law itself initiate a change before there is some kind of societal shift already under way. you need a frederick douglass to start to move an argument in a particular direction to begin deciding law cases, for them to
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even come to the supreme court. >> >> when there's a case that starts to move society, very often you have tremendous amount of controversy. sometimes resulting in physical conflict. generally speaking, there has already been a societal shift because of argument, because of changes in lifestyle that precedes cases, trickling up to the supreme court for decision. so i think that, to some extent, happened thousands of people perished. you had arguments that were being developed by major church groups, by frederick douglas and others. there was a considerable amount of debate. you had debate between lincoln
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and douglas on these things. this was profound. and then we have, frankly, in the grand scheme of things, considering the titanic forces at play here, you had pieces of legislation that in comparison were pretty anodyne, small compared to things happening in society. >> and that caller also asked about issues the court chooses to ignore. >> i think, you know, the supreme court is, you know, made up of human beings, and i think they will, you know -- i think the cases that they take when they choose to take on certain issues, all of that is very much, i think, a part of where society is at the time. so, yes, there may be things that they choose to ignore or not ready to take on. i think of more recently the gay marriage case, where you could say, okay, we had already seen a change that was happening. we saw it at the state level, et cetera. we saw it in individual people's lives. and then they took a case that
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reflected what was already happening in the country. so what i think the caller sees as ignoring is sometimes the court saying, okay, we're not ready to take on this issue. or not seeing it as a -- as a time in which there is -- there are the facts of the case that allow them to resolve it in the way that the justices who have the votes to either take the case or don't want to take the case that they can resolve it. >> so the case was heard march 29th, 1883. the decision was issued october 16th of that year. as we have been telling you, the -- joseph bradley wrote the majority opinion, it was only four pages long. and here is a portion of what he had to say. when a man has emerged from slavery, 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. on the whole, we are of the
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opinion that no countenance of authority for the passage of the law in question can be found in either the 13th or 14th amendments of the constitution. you both alluded to this earlier. but what's the key aspects of his opinion? >> so i think the first aspect and the one that has really become resonant lies in the state action doctrine where essentially the court strikes down -- the outcome of this case is they strike down section 1 and 2 of the civil rights act of 1875, the provision to have public accommodation and then also there was a punishment that was there in the civil rights act of 1875. and i think when they say that we -- that congress did not intend -- that the 14th amendment was not there to regulate individuals, but instead when it says the 14th amendment, no state shall abridge privileges and immunities, it means there must be some state action. and it takes a very narrow view of what it means. >> and i think harlan in the descent takes head-on what state action really means. what does it mean for the state
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to be involved in something like someone going to the theater. so that's the first kind of key decision point of the court. i think that passage that you just put up on the screen is also -- i mean, indicative of how activists in some ways this court was in taking on the civil rights act of 1875. this was a duly passed piece of legislation, and they're really substituting in many ways their own opinion about the way in which the rights of black americans should be handled. i think congress had decided one way, and they say there should be a progression in which you kind of take up rights as a citizen. that is not anywhere in the 14th amendment itself. that's a judgment that's made by a justices of the supreme court. >> there are two components to bradley's decision. 14th amendment and 13th amendment. with respect to the 13th amendment, he maintained that the various public
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accommodations, whether it be inns, whether it be an opera house, to a certain extent -- what's interesting, and we could spend an entire segment on this, there was some agreement, actually, that they didn't necessarily entertain between bradley and harlan with respect to movement. >> that is public conveyances that could possibly have reached a narrower agreement on that particular issue. it wouldn't have reached the theater or the inns. but on that particular issue, they have kind of the same approach, except bradley takes it from a commerce perspective still that may be viable in which underpins -- look, heart of atlanta motel in the 1964 civil rights act, whereas harlan takes it from a citizenship perspective.
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bradley says that it is not a badge or incident of slavery to be denied admission to an inn or to be denied a public conveyance. as he put it, mere discrimination is not something that would be considered a badge of slavery, since there had been free blacks during the entire existence of the united states. so his view was -- or the opinion looks at the 13th amendment at something that doesn't prescribe discrimination, per se, just badges of slavery. and then there is the 14th amendment component that we have been talking about, where state action is required. whereas harlan says, you take a look at the first line of -- or first sentence of the 14th amendment that deals with the equal protection clause and extending the same protections to all citizens that are extended to whites. in the second section -- second sentence, there are two components with respect to state action. so that if you take harlan's view, for example, the first section talks about immunities for everyone.
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the second sentence would be superfluous, therefore, what bradley is saying. why would you include that when the first sentence would include everything. >> justice harlan's descent was 35 pages long, but interestingly, he had writer's block. and we're going to learn next how that writer's block was solved. > >> he received >> a gift from an unspecified woman, and malvina, maybe in her envy or jealousy of his attentions thought this was rather inappropriate gift. and she whisked it away and stuffed it in a closet. and he never knew about it. >> and when he became embroiled in his thought process about the civil rights cases, he was
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going back and forth and back and forth and back and forth. and spent three days in his study not coming up with something that he was satisfied with. so she, in her brilliance, went and retrieved this ink well that had belonged to justice towny, who as we know had a different kind of legacy. she polished it up, placed it on his desk, fed him breakfast and sent him back to work. and upon seeing this ink well, he realized what it was, and that gave him some motivation and perhaps some inspiration to come up with what he did. >> descendents of justice harlan talking about the ink well story and goes to the point you made about the partnership between malvina and her husband, the justice. roger towny was referenced there. >> if you don't know that name, he was a former chief discuss'tis of the supreme court and responsible for the dred scott decision, accounted by many as the worst decision made by the supreme court during its history. so here's a bit of what the opinion had to say. he wrote, "the opinion in these
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cases precedes, it seems to me upon grounds entirely too narrow and artificial. i cannot resist the conclusion that the substance and spirit of the recent amendments of the constitution have been sacrificed by a subtle and ingenious verbal criticism." when did this descent actually become well thought of and cited in society? what was its trajectory over time? >> i think that harlan began, i think, to be seen in terms of the power of his dissent early on. you hear people praising him, frederick douglas, for one, praises his dissent. >> sent him a note saying, thank you for this dissent. john mercer langston, who was the first dean of howard's law school, gave a public address to a crowd. there were lots of public meetings among african-americans after this decision was made.
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and harlan's dissent was cited in almost all of those public meetings. john mercer langston, when he gives this address in washington, d.c. , to a group of african-americans, talking about how terrible this decision is that has been made by the supreme court, they hold up harlan's dissent. and especially that language of the substance and spirit of the reconstruction amendments being one that's being thwarted by the supreme court. and i think that's one of the most memorable lines of the dissent, is the notion that there was a substance in spirit of the 13th and 14th amendments that were really lost and arguably never really recovered. >> i think i agree with danielle that almost immediately people recognized the dissent. first of all, it was a multifaceted dissent. he treated a number of different issues, the 13th amendment, 14th amendment, and swerved very close to agreeing with bradley and provided a road map for the use of the commerce clause to justify the 19 or underpin the 1964 civil rights act. >> but frankly, his argument was not so much with the other
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eight justices. his argument really was with the congress and the drafters of the 14th amendment. because although his dissent as some scholars would say was heroic, it was, as far as the rule of law concerned, probably incorrect. because what he says -- if you take a look at the 14th amendment, it says, all persons born and naturalized in the united states and subject to the jurisdiction thereof are citizens of the united states and state when they reside. and then it says, no state shall make or enforce any law which shall abridge the immunities of the citizens of the united states nor shall any state deny the person of life, liberty or property. and what many scholars would say is that if the framers or the drafters of the 14th amendment, considerable laborious process of getting an amendment passed, two-thirds of both houses and three quarters of the legislatures, and these are things that are drafted in
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a meticulous, painstaking fashion, where every single word has a particular meaning and could have significant impact, the intent, as we see in history of the framers, and we also have some literature to this effect of many of the proponents of the 14th amendment and the framers of the 14th amendment may have been to confer the types of rights that harlan says were meant to be. but he said the 14th amendment was an affirmative right to abolish racial discrimination. but that's not what's contained in the text of the law. and the judges are constrained, or justices are constrained by the text of the rule of law. if you wish to change that, then you go through the amendment process. a long, painstaking, deliberative process to make sure the passions of the day don't rule one way or another, and judges are supposed to interpret and not make the law. >> and i think i -- >> i want to get a call in.
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we're getting a little bit behind. robert in middletown, new york, you're on the air. >> good evening. and i would like to thank the two guests for sharing their intimate knowledge of this case with us. my question is this. and it's two parts. in the civil rights cases, the court held that the civil rights act of 1875 was unconstitutional. >> however, as we are aware, congress was able to outlaw discrimination when the court held that the 1864 civil rights act was constitutional, and that was in the heart of atlanta, being a united states case. during the 80 years between the two cases, did congress enact any other legislation to outlaw discrimination and part two of the question is, if yes, was any of that legislation subject to constitutional challenges before scotus? >> thank you. >> i think yes, there were other attempts to pass civil rights legislation before the 1964 civil rights act.
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the major challenges happened to the 1964 civil rights act. i think just in returning to the previous question of whether justice harlan was right on the law, this does go to the 1964 civil rights act. i think that the framers, the drafters of the 14th amendment and the framers of the 1875 civil rights act, there was such a close proximity to those two actions that this notion, and i think that harlan was right, that the narrow view that the court takes the law is not consistent with the spirit of the 14th amendment. in terms of state action, i think harlan makes a persuasive argument, and it is really a precursor to the interstate commerce clause, that when you open an inn, when you open a theater, when you begin to be in the railroad business, all of those things are things that you were given the ability to do by the state, by local law, et cetera. so the idea that if you open a public inn, it is not in some
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way bound up with the public rights. that that is somehow some private action is just something i think harlan is absolutely correct that that is too narrow parsing, too narrow an idea of the difference between state action versus individual action. >> so our guests explained the african-american community reaction to the case, and also some portion of the white majority population. but as tony morrow tells us in the landmark cases book that we have published along with this series, the white establishment generally applauded the court's decision in the civil rights cases. that night >> news of the decision was announced from the stage of the atlanta opera house sued by a black man denied entrance. the audience, except for black people sitting in the balcony cheered. and here's reaction from the
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media at the time. "new york times, " the nation and the independent -- the "new york times" wrote in an editorial about the decision. the court has been serving a useful purpose, and thus undoing the work of congress. the "nation" magazine wrote, this decision settles the point forever that the 14th amendment merely adds new limitations upon state action to those already existing in the constitution, and does not change in any way the fundamental structure of the government. and "the independent" wrote, it is important for both the state and the government to keep within the sphere assigned to it. in this way and no other way can our duplicate system of government be harmonious. >> it's so interesting to read side by side things like the "new york times" and then the newspapers. one of the most famous was a cold bucket of water has been poured on the heads of black citizens. >> and so to read those contrasting views of the mainstream media or similar -- like the "new york times" versus what was happening in the black press, i think, is a really interesting contrast in how both sides saw it as these
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cases were incredibly impactful, would have a major difference on the day-to-day life of black and white citizens in the united states. that's what they agreed on. >> and we're going to learn in just a few minutes about frederick douglas in particular, and how he reacted to the decision by the court in this case. but let's listen to romaine in homewood, illinois. go ahead. caller: yes. i was wondering, has there ever been a lawsuit involving a person who lives as caucasian, but it's known that that person has a >> black parent? >> yes. so in plessy versus ferguson, of course, even though he was interpreted to be a black american, he had significant white heritage and was still interpreted as it has been historically in this country, at least, that, you know, that percentage of his heritage that was of african descent was considered to make him black
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under the laws at that time. so, yes, many of the cases in which you see people who are identified as black-american suing for the rights of black-americans. many of those people are of mixed racial heritage. >> nancy is in georgia. hi, nancy. you're on. caller: thank you. good evening. i would ask either of your guests if they're familiar with tom hartman's book, "unequal protection: the rise of corporate dominance and the theft of human rights, " which is about the 14th amendment and the 1886 santa clara county case of southern pacific railroad versus santa clara county, and the decision in that case and what chief justice morrison wade said. >> the 14th amendment was written to free the slaves and not the railroads. it was not until chief justice john roberts that our court recognized corporations as citizens, and having rights
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through the 14th amendment. although i think the competition was there for a long time. >> thank you. anything for that caller? >> no. >> i haven't read the hartman book. >> okay. here is what frederick douglas did. he went to lincoln hall and downtown washington, d.c., and delivered a very powerful speech in reaction to the supreme court case. we're going to learn from historian ed medford. how he wrote that speech and what the reaction was. >> once douglas heard about the 1883 supreme court decision, he appeared at lincoln hall in washington, and made a speech. >> >> and it's a perfect study in he will quantity indignation. it's one of the most powerful speeches he ever wrote. lincoln hall was packed with people. estimates are that there were 2,000 people or more inside of the building, and that there were twice as many people
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outside. and so it gives some sense of how upset african-americans especially were. but there were white americans in the audience, as well. what comes through is not just the indignation, but the sadness that the country has gone down this path. he also talked about the fact that african-americans were americans. they were american citizens. and that when you take away the rights of one group of americans, eventually you're going to tread on your own rights as well. he's as upset about what it does to the country as a whole as what it did to african-americans as a race of people. and so that's why this civil rights act of 1875 was so important to him. >> frederick douglas also penned a letter to chief justice john marshall harlan to thank him for his dissent. i took my pen only to assure
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you of my satisfaction of your opinion and my gratitude and admiration. >> i wish to assure you, if you are alone on the bench, you are not alone in the country. well, let's move from the law to society at large. what happened to black-americans after this case was decided? >> pretty devastating. we think about, as i said, earlier on, the continuum of cases that we had and also 1877 compromise. >> black americans were left naked to aggression. black americans were -- it was confirmed by the law that black americans were not just second-class citizens but third-class citizens, given the framework of where black americans had been throughout the century especially. there was no effective means by which black americans -- when you take a look at reconstruction, for example and the military governorship of the old confederacy, the clan was rising, and there were virulent institution, acting as a military arm of a political party and suppressing dissent and preventing blacks from voting and frankly, preventing
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poor whites from voting also in certain respects. if they weren't voting along prescribed lines. this was a horrific institution purportedly had come to an end to be supplanted by another horrific institution that was probably more -- just as insidious. because it pretended to grant citizenship to blacks. blacks were not just -- you know, we're taking a look -- danielle was mentioning lawsuits with respect to whether blacks were viewed as whites or whites as blacks. there were a whole set of laws crafted pursuant to a one-drop rule, and the different privileges that were granted, depending upon whether or not you were one-eighth white or one-eighth black. one-quarter white, one-quarter black. grandfather clauses and things that prohibited individuals from holding property from voting through literacy tests, whole taxes and so forth. it was a nightmare for many in
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the south, but also in the north, too. because remember, i think danielle touched upon this also. where viewed, we're looking at the south, but in the north, there was rampant discrimination. rampant segregation. life wasn't a whole box of chocolates for blacks in the north, either. but this gave to discrimination. and when a supreme court says rightly or wrongly under the law that essentially blacks have no recourse with respect to public accommodations, inns, public conveyances, and the old regime of treating blacks differently than whites persists, it's -- it's a tough day in dodge. >> kay is watching in ack worth, georgia. and you are on. welcome to "landmark cases." >> caller: thank you. i just have one question. >> did this help continue the actions during the presidency of woodrow wilson? >> in what way? >> what are you thinking of? caller: that it enabled him to continue with -- with the types
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of issues he was, you know -- putting out in the south. >> okay, thanks. >> i understand -- i think i understand the question. but, again, this goes to state action. >> woodrow wilson was >> resegregating federal authorities. the army and things of that nature. so maybe it gave him greater moral support. but from a legal perspective, really didn't have any impact. >> next is douglas, staten island, new york. hi, douglas. you're on. caller: yes, good evening. thank you so much for c-span. you guys are just an eldorado of information. >> and we really sorely miss that from the mainstream media, so thank you. i just wanted to preface with that. >> my understanding and correct me if i am wrong, is that the supreme court basically -- which we're doing for the ruling elite and basically chosen from the class -- they were wealthy lawyers and the rest of it.
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i remember one new york banker, you know, talking about the supreme court saying it's the defender of private property, enemy of spoilation and sheer anchor of the public and protector of our dollars. and i look at cases in the supreme court and it seems they decided to abandon the 14th amendment for use of the -- you know, what it was originally intended for the negro at that time. and it said -- i look at case law, and they look -- between 1890 and 1910, there were 288 cases brought before the supreme court. and only 19 -- i'm sorry. only 200 -- well, i should say, of the 200, there were -- i apologize. there were 312 cases. but 288 of them dealt with corporations. rather than with the negro. and basically, the supreme court basically these people being of certain backgrounds and interests, i think they
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just decided that the negro -- they had done enough. the industrialists of the north, as well as the former plantation owners had basically said, listen, this is enough. we don't want it touched any more. and they decided that's what they were going to do. correct me if i am wrong. >> i think one example is the slaughterhouse cases, which justice bradley had a much broader interpretation of the slaughterhouse cases of the 14th amendment in a commercial context than in the context of the rights of black americans. >> when you consider that after the 1883 civil rights acts, after crook shank, when the enforcement acts were shot through, the ability then to bring such cases -- supreme court had acted. so the fact that there weren't
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more cases brought were a large -- to a large extent was a function of the fact that these cases had been decided. >> >> when these cases are decided, saying you do not have a cause of action if it does not involve state action, which shut off a huge spigot of cases. >> as our guests have said, the issues were ultimately addressed but not until 1964 with the civil rights act. some of the key provisions included banning racial discrimination in hotels, restaurants and other public accommodations. >> prohibiting unequal application of voter registration requirements and prohibiting segregation in schools and workplace. but as you've made the point, they use the commerce clause of -- of the constitution rather than the -- the reconstruction amendments to address this. >> right. and the commerce clause is much more expansive in its application. but it's not necessarily a grant of power, unlimited grant of power. there has to be, and there have been a lot of juryis prudence, et cetera, et cetera. but there has to be more than a tenuated relationship of commerce with the ability of
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government to involve itself in private affairs. >> however, it is fairly expansive. there is no if, ands or buts about it. but you've got the case of wicker versus fill born where anything that can be aggregated is within the reach of congress. but nonetheless, it it's not a blank check of authority to have congress make almost anything that may otherwise be a private concern one of a public concern. >> and i think it's an incredibly important point that the interstate commerce clause takes us away from the 14th amendment. again, when we talk about the civil rights cases really crushing the ability of the 14th amendment to realize its possibility to really end racial inequality, especially as to black americans, to go to the interstate commerce clause is to go back to article 1 of the constitution. so it takes you away from the 14th amendment and away from the enforcement provisions of the 14th amendment, section 5, of the 14th amendment.
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>> so the kind of heft of the civil rights cases and what they have really done to depress the ability of the reconstruction amendments to be able to help black americans really have full citizenship, 19th century through the 20th century into the civil rights act cannot be stated enough. i think that's one of the points that hopefully will walk away from is the real damage that the civil rights cases did to the 14th and to the 13th amendment. >> niesha is watching from pikesville, maryland. welcome. caller: hi, thank you. i'm actually amazed all of these civil rights act that have been passed, and i'm just confused about why black america as >> a whole consistently vote democrat, even though it was the republican party that fought for the civil rights acts. so my main question is, what
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happened to the disconnect with black people, why we overall don't know this history? >> thanks very much. as a republican, would you like to answer that? >> well, do i have three hours? it's a long and varied history. there is a sort of historical jujitsu that's occurred where it was a republican party that was the force behind 13th amendment abolishing slavery. >> 13th amendment of equal protection. the 15th amendment. anti lynching legislation opposed by democrats. ku klux klan was the military wing of the democratic party in the south. and if you look at -- woodrow wilson, frankly, a racist. there was an evolution of the parties. but i think the break occurred sometime -- for a long time, republicans were voting -- or blacks were voting republican. there was -- beginning of a break during the new deal. and then it accelerated right around the late'50s, early'60s, which strangely, also, if you
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look at the percentages of blacks who gave their vote to the 1964 civil rights act -- i'm sorry, percentage of republicans -- more republicans voted in favor of the -- or percentage of republicans voted in favor of the 1964 civil rights act than democrats. so it goes on and on. but i think attitude and how you address things matter. and so when you have republicans talking about -- like a goldwater, who opposed the 1964 civil rights act -- on constitutional grounds, that could very easily be distorted into, well, he's opposing it for no other reasons than racism. there could be no other reason. there's accumulation of these kinds of things that have resonance among people who are very, very concerned about how they're being perceived and how they're being treated, and any type of signal that suggests that they are not entitled to -- we are not entitled to equal
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rights is a -- use a current term, a dog whistle. that politically can be lethal. >> question from wild and wonderful on twitter from west virginia. the issue in the cases was private conduct as opposed to state action. jim crow laws were state actions. why is the decision in the cases cited as ushering in the jim crow era insofar as it did not strike down state action. >> one of the biggest mistakes is to make this complete separation between private -- private decision-making and, quote, state action. i think why jim crow laws flowed from that -- and, again, it sets up this legal construct where there's two different forms of citizenship. there is privileges and a different set of rights for black citizens. >> and once the civil rights cases affirmed that, whether you cloak it in the term state action or not, once they affirm
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that, it allowed states to then move forward and say, we don't have very much worry about passing into law jim crow laws that essentially said, yes, you can be in the theater, but there is a black section and there is a white section. there is a colored section and white section which then the supreme court affirmed through the separate but equal doctrine in plessy versus ferguson. so i think setting up these legal constructs, which allow then for them to take off and start running like what we see with jim crow is the reason why i think i still fundamentally reject this notion of state -- of the state action doctrine as put forth by the majority in the civil rights cases. >> so john marshall harlan's lone dissent had immediate and also long-term legacy. next we're going to hear from justice ruth bader ginsburg, talking about the power of dissents. >> we have had a long tradition of dissents becoming the law of the land. there was the first justice,
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john marshall harlan, who dissented in the so-called civil rights cases. and then some 13 years later in plessy against ferguson. i think it's good when we look back to see that there >> were people who thought the court judgment was wrong. and wrote the judgment that was out of the dissent. and then in the next generation becomes -- becomes the opinion of the court. >> we have a very robust website for these -- series landmark cases. you can find it at, and then landmark cases. we have got all 12 cases in the term and each one of them will have lots of other videos that you can watch. >> the decisions and the cases that you can read if you're more considered. i mention that, because on the tab for this case, we also have
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a piece of video from antonin scalia when he talks about the joy he has sometimes in writing dissents. when he can let it all go. we have just a couple minutes left. let me take a call from beverly. go ahead, please. caller: i would just like someone to comment concerning how whites treat people of other races, be they blacks, asians, whoever. how they equate their religion, their christianity with the way they treat people of other ethnic groups. >> well, thanks. that's a big societal question that we probably don't have time to tackle. >> i'm not sure we do have time to tackle something like that. i would just simply say that as i said at the outset, in terms of religiosity, harlan's religion was a great motivating factor in his dissent in both plessy and in civil rights
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cases. so if there are some who might use religion as an excuse to discriminate, remember where the abolitionist movement came from. it was fueled by religiosity, by the quakers. and there was a good argument that we wouldn't have had the abolitionist movement, or at least as robust and adamant a movement that would have eventually led to a civil war in the 13th amendment, 14th amendment, 15th amendment, without the religious. >> one more bit of video for you. a high school in texas has been named after justice john marshall harlan, and his desen dents talk about why the school and naming of it is important and valuable to them. >> what the school does, every school and every high school in that district is named for a supreme court justice. >> and they have a student competition. and so the eighth gradiers, who are going to be in the high schools write essays that go into contention for the name
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selection. and an eighth grader named katrina cookie targeted first justice harlan. she basically summed up his legacy and saying that not only had he stood alone in his dissents, but he had written something that was very applicable to the time today. and so she translated that into how can i as a student stand up for what i believe in, and reach out to people that aren't familiar to me. how can i make a difference in situations where it's not easy to do that. and to hear her talk about that and read her essay and to see that sort of coursing through the halls of this school -- kids of all different backgrounds, different economic backgrounds, different racial back ground, different ethnic backgrounds, all in classes together and orchestras and bands and pep clubs and everything. there was an incredible spirit
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to it all. and to have that associated with harlan is -- it really is fantastically moving. you couldn't wish for a better legacy. >> and in our closing couple of minutes here, joe paulson on twitter speculates, wouldn't it be interesting to know what would have happened if the civil rights cases went the other way. and then the post reconstruction era congress revoked the law. so we've got two minutes left. let's use that to talk about what are the most important things. we have a minute each. most important things people should take away from this discussion about this supreme court ruling in 1883. we'll start with you. >> well, i think that it provided, as i said at the outset -- it provided the framework, the pathway to get to the 1964 civil rights act. because the 1883 civil rights cases are still in name good law. state action is required in these kinds of circumstances and of the 14th amendment.
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so the commerce clause was invoked. and that was a long journey also, because we had to get through not just the various cases during the reconstruction, but also during the new deal and finally to the 1964 civil rights act. so i think the main take-away from this is it didn't provide a judicial framework. what it did is, it provided a pathway for the legislature. and bradley looked at the law and interpreted the law pursuant to the way the legislature and the drafters of the amendment had actually drafted it. that eventually dictated that the commerce clause be used to pass the 1964 civil rights act. so i think the take-away is, if you want to change the law, what about the three branches and the place you change the law is in the legislature. in the first branch. >> thoughts. >> i take away from this case how seriously a wrong decided supreme court case can negatively effect the lives of americans on a day-to-day basis. it's a really long slog from 1883 to 1954 to brown versus board of education and then to
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1964 to the civil rights act. think how many people suffered under the violence and oppression of the white supremacist regime that was confirmed in the civil rights cases. and so i think the importance of this case is for hopefully for us never to forget. and this was a case where congress created the 14th amendment in the wake in response to the civil war and to slavery. and to really have their intent thwarted. the substance and spirit, as harlan said, of their intent of the drafting of the 14th amendment thwarted by an activist supreme court that was clearly wrong and had terrible repercussions for this country for a long time. >> special thanks to our partners at the national constitution center for their help and putting together this series this year. and as we close here, thanks to danielle holly walker, dean of howard university >> law school. peter kers now, u.s. civil rights commissioner. and to you for being part of
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our discussion tonight. thanks for helping us folks understand a bit more about this period in time and the importance that one supreme court case can have in american society. thanks for being with us. >> >
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c-span history. next, on lectures in history, virginia commonwealth university professor nicole myers turner discusses the lives of formally enslaved african-americans following emancipation. she explains how they do find freedom for themselves while the federal government debated political and legal definitions. professor turner also discusses the important role of religious and educational institutions in newly freed african-american communities. ok, so today, we are going to be talking about


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