Supreme Court

By: Paul Finkelman

Source:

 Encyclopedia of African American History, 1619-1895: From the Colonial Period to the Age of Frederick Douglass

Supreme Court

The United States Supreme Court heard its first cases in the 1790s, at which time its jurisdiction was mostly limited to appeals from state supreme courts and lower federal courts and usually involved issues of national law or constitutional interpretation. Before 1830 the Court did not hear any cases involving the Constitution's fugitive slave clause but did hear some cases involving the African slave trade. At that time Supreme Court justices also presided over trials while riding circuit and as such heard cases dealing with slavery and race. The federal courts also had jurisdiction over the District of Columbia, and thus the U.S. Supreme Court played the same role as a state supreme court for ordinary, nonconstitutional cases coming out of the nation's capital. These cases were complicated by the fact that part of the District—what is today Alexandria, Virginia—was subject to the laws of Virginia, while the remainder was subject to the laws of Maryland. Congress could, and did, alter these laws when it chose to do so. Generally, the Court supported the rights of slaveholders and the institution of slavery. Even in cases that did not deal directly with slavery, the Court often had slavery in mind in developing various doctrines.

Freedom Suits

The Court heard freedom claims in a number of cases, all arising out of Virginia and Maryland laws that prohibited the importation of slaves other than by bona fide migrants. Anyone bringing a slave into either state had to take an oath asserting his or her intention to move to the state. Thus, slave owners moving into the District of Columbia had to follow either Virginia or Maryland laws, depending on the part of the District to which they moved. Virginians moving to modern Alexandria and Marylanders moving to the remainder of the District were unaffected by importation laws. In all of the cases that reached the Supreme Court, the Court found against the slave plaintiffs.

In 1806 the Court heard the case of Scott v. Negro London. The slave London had sued for his freedom in the District of Columbia under the 1792 Virginia law prohibiting the importation of slaves other than for personal use and only by bona fide migrants. Anyone moving to Virginia with a slave was required to take an oath within sixty days of the slave's arrival asserting the slave to be for the personal use of the migrant. In 1802 London's master, Scott's father, moved from Maryland to the Alexandria part of the District of Columbia, which was subject to Virginia laws. The owner, Scott Sr., did not take the required oath and subsequently hired Scott out, suggesting that London was not in the state for Scott's personal use. After about six months in Alexandria, Scott Sr. died, and the slave London came into the possession of Scott, the plaintiff in the case. A jury found for London, declaring that London became free when Scott Sr. neglected to follow the requirements of the Virginia law. However, in a rather strained reading of the law, Chief Justice John Marshall, speaking for a Supreme Court that unanimously found London to still be a slave, reversed this decision. Maryland had a similar law, and in 1807 a Washington jury held that another slave owner, also named Scott, failed to abide by that law when he moved from Virginia to the Maryland portion of the District of Columbia. Nevertheless, in Scott v. Negro Ben (1810), Chief Justice Marshall once again held for the slave owner and reversed a lower court decision freeing a slave.

In Wood v. John Davis (1812), Chief Justice Marshall again reversed the decision of the district court in the nation's capital in a slave case. Here the children of Susan Davis, a mulatto woman, sued for their freedom. Susan Davis had recently won her own freedom in a suit against her master by proving that she was the daughter of a free white woman. Susan Davis's children, who were owned by Hezikiah Wood, then sued for their freedom. The lower court granted their petition on the ground that if their mother was never a slave, they could not be slaves. The Supreme Court, however, refused to accept the obvious logic of this rule and reversed the lower court's decision. This forced the children of Susan Davis to return to court to have the case for their freedom tried before a jury. The case eventually returned to the U.S. Supreme Court as Negro John Davis v. Wood (1816), and once again Chief Justice Marshall, speaking for the Court, rejected their claim to freedom.

A more complicated set of facts was involved in Mima Queen and Child v. Hepburn (1813). Here the slave Mima Queen claimed that she was free because she was descended from a free black woman. Her claim was based on hearsay evidence, including the common knowledge of whites in her community. Mima Queen's lawyer, the young Francis Scott Key—the future author of the national anthem—argued that in a case such as this, hearsay evidence should be allowed because slaves did not have access to traditional documentary evidence. Justice Gabriel Duvall of Maryland alone agreed with this analysis, and in a 6 to 1 decision Chief Justice Marshall once again upheld a master's claim to a slave. Whatever “the feelings of the individual may be” for the “person claiming freedom,” Marshall declared, if there was any modification of the rules of evidence and hearsay, then “no man could feel safe in any property.” Thus, Marshall was unbending in his commitment to privately held property, even at the expense of blacks who had plausible claims to liberty.

In 1816, as noted, the Court for the second time denied the freedom claims of John Davis. In that same term the Court also rejected the freedom claims of Sally Henry in Negress Sally Henry v. Ball. Henry had always been the property of Ball, but in 1810 when she was a young child, Henry was lent by Ball to a Mrs. Rankin, who took Henry to Washington, D.C., and kept her there for a year without ever registering her, as required by the Maryland law in operation in the District. Sally claimed that she was free, but the Court ruled that the Maryland law applied only to residents, not transients. This interpretation would have allowed for regular traffic in slaves, with “transient” owners bringing slaves in and renting them out while there, avoiding the anti-importation law. As a legal scholar, Marshall ought to have been shrewd enough to perceive such a perilous interpretation, but he did not.

In Mason v. Matilda (1827) the District of Columbia trial court found in favor of the slave Matilda and her three children. Matilda proved, to the satisfaction of the district court, that nearly thirty years earlier she had been taken from Maryland to Virginia and that her master had never taken the proper oath in Virginia. Matilda was later taken to the District of Columbia, where she sued for her freedom and won. Once again, the Supreme Court reversed the decision, declaring that while there was no proof that the oath had ever been taken, the long residence in Virginia led to a presumption that the law had been followed.

In all of these cases the Supreme Court had the opportunity to uphold the freedom claims of slaves. In all but one of them, the lower court had already ruled in favor of freedom. Nevertheless, each time the Supreme Court found in favor of slavery.

Slave Trade

The early Court also heard a number of cases involving the African slave trade. The Constitution prohibited Congress from ending the African trade before 1808. Before then, while the trade was legal, Congress prohibited American ships from participating in the trade. After 1808 trade into the United States was illegal. The trade was not, however, illegal under international law. While a number of Supreme Court justices, including Chief Justice Marshall, were slaveholders, none supported the African slave trade, which most Americans found immoral.

Nevertheless, the Court's jurisprudence involving the trade was decidedly mixed. In Adams v. Woods (1804) the Court accepted a very narrow interpretation of a statute of limitations, thus preventing an action against shipowners charged with violating the ban on American participation in the slave trade. A statute of limitations sets out how long someone has to bring a case after the event leading to the case took place. The federal law gave civil plaintiffs or the federal government two years to bring a case for violating the ban on American participation in the trade. This case was brought more than two years after the voyage had begun. The plaintiff argued that Congress could not have intended the two-year statute of limitations to commence from the beginning of the slave voyage, because most such voyages lasted more than two years. If the case had to be brought within two years of the beginning of the voyage, then illegal traders could easily evade the law by being out of the country for more than two years. The Court, however, disagreed with this argument and held that the two years began when the voyage began. Thus, the slavers won this case.

In United States v. Schooner Sally (1805) the Court once again upheld the claims of a defendant charged with violating the slave trade ban. In The Brigantine Amiable Lucy v. United States (1810), the Court reversed a decision seizing a ship involved in the slave trade to the recently acquired Louisiana Territory under the theory that the law banning U.S. participation in the trade applied to the bringing of slaves only into the states, not into the territories. In The Brig Caroline v. United States (1813) the Court reversed a condemnation of a slaver on the ground that the indictment was poorly drawn.

The Court similarly reversed results in three other cases where ships had been condemned. In The Brig Alerta v. Moran (1815) the Court decided whether French or Spanish claimants owned certain slaves recently imported from Africa but did not comment at all on the trade itself. In The Samuel (1816), the Court again found reason not to enforce the ban on the trade. In The Josefa Segunda (1820), the Court, with Justice Brockholst Livingston writing the opinion, finally upheld a prosecution for violation of the slave trade ban. The Josefa Segunda, a Spanish ship loaded with slaves, was found along the coast of Mississippi. The ship's owners claimed that necessity had forced the ship to land on U.S. soil but could offer no legitimate reason for such a ship having been there in the first place. Still, in The Mary Ann (1823) the Court once again reversed a condemnation of a slaver.

The Court, however, upheld condemnations of slavers in The Emily and The Caroline (1824), The St. Jago de Cuba (1824) and The Merino, The Constitution, and The Louisa (1824). The first two cases involved American ships clearly fitted out for slaving; the second involved ships seized in foreign waters in violation of both American and foreign bans on the trade. In these cases the Court finally put its weight behind attempts to suppress the international trade. In The Plattsburgh (1825) the Court upheld the condemnation of a ship that had been built in the United States and then taken to Cuba, where the trade was legal. The Court recognized that this was a fraudulent attempt to evade the laws banning the slave trade. The Court would reach a similar conclusion in United States v. Gooding (1827)

By the 1820s the Court's jurisprudence seemed to favor suppression of the trade. But the most dramatic case of the era, The Antelope (1825), stained the Court's reputation with regard to this question. The Antelope was a Spanish vessel seized in international waters by pirates. In 1820 a U.S. ship captured the Antelope, which was filled with slaves taken from numerous other ships. Some of the slaves were legally held under the laws of Spain, as they had been taken from Spanish ships; others had been illegal cargo on ships that had been trying to break the American ban on the trade. In the end, the Court ordered some of the Africans on the Antelope to be sold, with proceeds going to the Spanish claimants, and the rest sent back to Africa. In his opinion Chief Justice Marshall acknowledged the immorality of the trade, asserting that it violated the law of nature, but he conceded that it did not violate international law.

At the circuit court level two cases stand out in this period. In La Jeune Eugenie (1822) Justice Joseph Story issued a scathing condemnation of the African slave trade, arguing that the trade violated the law of nations and was piracy, which “begins in corruption, and plunder, and kidnapping,” then leading to “lawless wars, and rapine, and kidnapping, and ending in disease, and death, and slavery.” An American schooner captured La Jeune Eugenie off the coast of Africa, where the ship appeared to be about to engage in the African trade. The ship's papers showed that it was French but had, in fact, been built in the United States, and the ownership was unclear. Calling the African trade piracy, Story had the ship condemned. But he could not decide whether the ship was actually American and thus could be sold for the benefit of the naval crew that seized it. If it was an American ship, the real American owners were not about to step forward and claim the slaver. But Story could not turn it over to the Frenchmen who claimed it, since it had been condemned, nor did he want to turn it over to the U.S. government because he did not want his own nation profiting from the trade. In the end, he turned it over to the French government. While Story's bold attacks on the trade made him appear to be a relentless opponent of slavery, his decision in Prigg v. Pennsylvania (1842) would show this not to be the case. In The Antelope, Chief Justice Marshall would avoid such language and condemnations.

The other important circuit court case was Elkison v. Deliesseline (1823), decided by Justice William Johnson while riding circuit in South Carolina. This case involved South Carolina's Black Seaman Law, which required that all free black sailors entering the port of Charleston be arrested and incarcerated while their ship was in port. When the ship was ready to leave, the captain would have to pay the jailer for feeding his crewmen, who would then be free to leave the state. If the captain failed to pay the jailer, the black sailors, though free, could be sold into temporary servitude to pay their debts. Elkison, a free black sailor on a British ship, challenged this law. Justice Johnson vigorously argued that the law was unconstitutional but did not order Elkison to be released from jail, saying that he lacked the power to issue a writ of habeas corpus in the case. Almost every other coastal southern state passed similar laws, continuing to undermine interstate and international harmony until the Civil War.

Beyond cases involving slavery and blacks, the Supreme Court was careful in this period to avoid rulings that might threaten slavery. Its commerce clause jurisprudence was expansive, but the Court never touched upon local commerce or the “domestic institutions” of the states. As dominated by the slaveholding John Marshall, the Court did not threaten slavery where it existed and avoided challenging any aspect of southern slave laws. Only in the African slave trade, which many southerners found immoral, did the Court side with freedom in any consistent way.

The Supreme Court heard relatively few cases involving slavery and race in its early years. However, starting in the mid-1830s the Court was increasingly caught up in the problems of slavery and race in the nation. In the 1830s and 1840s the Court heard cases involving the illegal African slave trade, the interstate slave trade, and fugitive slaves. In the 1850s the Court heard more cases on fugitive slaves, and cases on the status of slaves who lived in free states and territories. The most important of these cases, Dred Scott v. Sandford (1857), helped push the nation toward civil war and undermined the credibility of the Court. From the end of the war until the 1890s the Court heard a number of cases involving the rights of free blacks in the aftermath of slavery and Reconstruction. Throughout this period the Court rarely decided cases in favor of freedom or racial equality. Indeed, during the lifetime of Frederick Douglass no institution was more consistently hostile to black freedom, racial equality, and civil rights than the Supreme Court.

Justices

From the mid-1830s until the eve of the Civil War, the Supreme Court was dominated by proslavery Democrats. Starting in 1835 President Andrew Jackson, a Tennessee slave owner, appointed five southerners to the Court: James M. Wayne of Georgia (1835); Roger B. Taney of Maryland (1836); Philip Barbour of Virginia (1837), John Catron of Tennessee (1837), and John McKinley of Alabama (1838). Four were themselves slave owners, and Taney, appointed as chief justice, came from a wealthy slaveholding family. When Barbour died, President Martin Van Buren appointed the fiercely proslavery Virginian Peter V. Daniel to the Court, establishing a southern majority that would last until the Civil War. After McKinley died in 1852, President Franklin Pierce, a longtime admirer of Jackson, appointed John A. Campbell of Alabama to replace him in 1853. The proslavery southerners lost their majority only with the 1860 death of Daniel and the 1861 resignation of Campbell, who resigned so that he could serve in the Confederate government.

In addition to these southerners, throughout this period the Court always had at least two, and sometimes three, northern Democrats who supported the South and slavery. These justices were known as “northern men with southern principles” and were called “doughfaces” by their opponents because it was said that slave power could shape their faces like bread dough. Fitting this description were Samuel Nelson of New York (1845), Levi Woodbury of New Hampshire (1845), and Robert Grier of Pennsylvania (1846).

Indeed, there were few opponents of slavery on the Court prior to the Civil War. Smith Thompson of New York, who served until 1843, was clearly antislavery; so, too, was John McLean of Ohio, who was appointed by Jackson in 1830 and stayed on the Court until his death in 1861. Joseph Story of Massachusetts, who served on the Court from 1812 to 1845, personally disliked slavery but also wrote one of the most proslavery opinions of the period, in Prigg v. Pennsylvania (1842). Benjamin Robbins Curtis, also of Massachusetts, was a conservative Whig who supported the Fugitive Slave Law of 1850 and who would later oppose Emancipation during the Civil War. Ironically, however, he wrote a scathing dissent in Dred Scott v. Sandford (1857), which briefly made him an antislavery hero.

President Abraham Lincoln appointed men who were all opposed to slavery, although with various levels of enthusiasm. His first appointee, Noah Swayne (1862), was a Virginia-born Quaker who moved to Ohio, where his strong antislavery views were more acceptable to his neighbors. Samuel F. Miller of Iowa (1862) was at best indifferent to black rights and more likely hostile to them. David Davis, Lincoln's friend and adviser from Illinois (1862), turned out to be hostile to black rights and at least privately opposed the Emancipation Proclamation. Stephen J. Field of California (1863) opposed slavery, but after the war he consistently voted against any expansion of black rights and just as consistently opposed the expansion of federal power to protect civil rights. Lincoln's final appointee, Salmon Portland Chase of Ohio (1864), who replaced Taney as chief justice, was a lifelong abolitionist who was nicknamed the “Attorney General for Fugitive Slaves” because he defended so many fugitive slaves and whites who aided them. After the Civil War most of the new justices were generally hostile to slavery and happy to see its end but were unconcerned with civil rights or the plight of former slaves. The one exception was John Marshall Harlan of Kentucky, appointed by President Rutherford B. Hayes in 1877. Harlan would become the most steadfast supporter of black civil rights to serve on the Court before the 1950s.

Slavery and the Court

Between 1830 and 1861 the Court heard a number of cases involving slavery and touching on a variety of issues therein. In addition, the Court heard a number of cases that did not directly concern slavery but that bore an impact on the institution.

In the mid-1830s the Court developed a new understanding of the commerce clause of the Constitution, which allowed the states to regulate some commerce that might otherwise be viewed as “interstate.” In Mayor of New York v. Miln (1837) the Supreme Court developed what is knows as the “police powers” doctrine. The Miln case involved a New York law which required the registration of paupers brought into the state. In writing for the majority, Justice Barbour said that each state was competent “to provide precautionary measures against the moral pestilence of paupers, vagabonds, and possibly convicts, as it is to guard against the physical pestilence, which may arise from unsound and infectious articles imported.” While Barbour was directly referring to paupers, most Americans understood that this language applied with equal force to southern states that would wish to exclude free blacks. Indeed, the arguments in the case had included the claim that New York's law was just like those of the South allowing for the arrest of free blacks who entered the slave states.

In March 1841 the Supreme Court decided two cases directly involving slavery. In Groves v. Slaughter (1841) the Court considered the validity of a provision of the Mississippi Constitution of 1832 prohibiting the importation of slaves as articles of commerce. This constitutional clause was not an attack on slavery but rather an attempt to prevent the outflow of capital to other states. After receiving slaves from Slaughter, Groves and other purchasers had refused to honor their promissory notes, claiming the sale to be void under the Mississippi Constitution. The Court concluded that this provision of the state constitution required legislative implementation, without which the provision could not bar the sale of slaves in Mississippi. Thus, Groves was required to pay Slaughter.

In reaching this result Justice Thompson avoided the larger constitutional question of “whether this article of the constitution of Mississippi is repugnant to the Constitution of the United States.” Other members of the Court, however, could not restrain themselves from discussing the issue. Justice McLean, as an opponent of slavery from Ohio, argued that slaves were not merchandise under the Constitution but instead were “persons,” and as such the states were free to prohibit their entry. Chief Justice Taney, a proslavery southerner, chimed in that the “power to regulate the traffic in slaves between the different states” lies “exclusively with the several states”; he wanted to make sure that Congress never regulated the slave trade. Although all the justices agreed that regulation of the interstate slave trade was not within the power of Congress, all but two agreed that the Mississippi constitutional provision was not self-executing, and thus the notes were valid.

Less constitutionally significant but more dramatic was United States v. The Amistad, decided the day before Groves but reported later in the term. The Amistad case involved a Cuban ship used to transport African slaves from one part of the island to another. During the voyage the slaves revolted, killed the captain and most of the crew, and forced the two surviving whites—the purchasers of the slaves—to sail toward Africa. Instead, at night the two whites, Pedro Montes and José Ruiz, sailed the ship north, hoping to reach the American South. In the end the ship was discovered off the coast of Long Island and was towed by the Coast Guard to Connecticut.

The question then arose as to the status of the Africans. The Spanish government demanded that they be returned to Cuba, either as the property of Montes and Ruiz or to stand trial for murdering the captain and his crew. Abolitionists argued that the Africans had been illegally taken from their homeland in violation of international agreements and that they were thus free to revolt in order to secure their liberty. The abolitionists used the case to educate Americans about the dangers and horrors of slavery, trying to portray it as a case about slavery itself. The Supreme Court, however, narrowly examined the obligations of the United States under its 1795 and 1821 treaties with Spain and the status of the Africans under international law. In a spare, ten-page opinion, Justice Story concluded that the Africans on the ship had been illegally taken from Africa, were never legally slaves, and should immediately be freed. Story refused to require that the U.S. government return the Amistad slaves to their homeland; instead, abolitionists had to raise the money to do so. This case had great political value for the opponents of slavery but was not in effect an antislavery decision. Justice Story made it clear that he would have returned the Amistad slaves to Cuba had they been legally enslaved there.

Indeed, a year later Story showed his willingness to support slavery. In Prigg v. Pennsylvania (1842), Story, writing for an 8 to 1 majority, upheld the constitutionality of the Fugitive Slave Law of 1793. At the same time the Court struck down Pennsylvania's personal liberty law, which had required that slave catchers get warrants from state judges before removing any alleged fugitive slaves out of the state. In this case the Court articulated the idea that slavery was a constitutionally protected form of property and further held that even without a federal law slave catchers had the common-law right to recapture their slaves wherever they might find them, and to do so without any legal process, as long as the capture could be accomplished without a breach of the peace. Many northerners viewed this decision as an invitation to kidnapping.

In Jones v. Van Zandt (1847) the Court once again upheld the Fugitive Slave Law of 1793. Here the Court also reaffirmed the right of masters or slave catchers to seize runaways without any due process or even a writ from a judge. Furthermore, the case upheld a private lawsuit against the Quaker John Van Zandt, who had merely offered a ride to blacks he found walking along a road in the free state of Ohio. The case implied that blacks were to be presumed slaves, even in free states. The Jones decision was written by Justice Woodbury, the doughface Democrat from New Hampshire and Story's replacement on the court.

In Strader v. Graham (1851) the Court ruled that a slave state had the right to decide for itself the status of all blacks within its jurisdiction. The case involved slaves who had been allowed to visit free states and eventually seized an opportunity to escape aboard Jacob Strader's steamship. Christopher Graham, the slaveholder, sued for the value of his slaves, while Strader claimed that they were free because their master had allowed them to travel in Ohio and Indiana. The Kentucky courts refused to acknowledge the free status of these slaves, and the Supreme Court affirmed this result. Once more the Court chose to support slavery in a case where it would have been equally plausible to support freedom.

Six years later, in Dred Scott v. Sandford (1857), the Court once again produced a powerful decision in favor of slavery. Here the Court struck down all federal laws banning slavery in the territories. Furthermore, in its first-ever ruling on the rights of free blacks, the Court held that they, in fact, had no rights under the Constitution and could never be considered citizens of the United States. This would be the Court's most infamous ruling, denounced by opponents of slavery and, more important, by many moderate northerners, such as Lincoln. Reaction to the case helped propel the Republican Party into power and Lincoln into the White House.

In Ableman v. Booth (1859) the Court upheld the Fugitive Slave Law of 1850 and denounced the doctrine of states rights, which had been invoked by Wisconsin to challenge the law. The Jacksonian court, once a bastion of states' rights, had gradually become a supporter of a strong federal government, as long as that government protected slavery. In this sense, Ableman reflected the jurisprudence set out in Prigg and Jones. The Taney Court abandoned this nationalist perspective in Kentucky v. Dennison (1861) when it refused to order the governor of Ohio, William Dennison, to return a free black to Kentucky, where he was wanted for helping a slave escape. With Lincoln about to enter the White House and seven slave states having declared themselves part of an independent nation, the Taney Court, though still totally committed to slavery and southern rights, was unwilling to give the national government the power to order state executives to act—even if the narrow result of the case was to save a free black from being prosecuted for helping a slave escape.

Race and the Court in the Civil War Era

In Ex parte Gordon (1862), with the Civil War raging, the Court issued its most antislavery opinion to date. The case concerned Nathaniel Gordon, who had been sentenced to death for piracy for illegally transporting slaves to the United States. A unanimous court upheld his conviction and death sentence, as even the proslavery members of the Court did not approve of the African trade. Gordon was subsequently hanged. In The Slavers (1865) the Court unanimously affirmed the convictions of various slave traders. By this time the majority of the Court was Republican, and the chief justice was the long-time abolitionist Chase. During the Civil War the Court did not hear any other cases directly relating to race or slavery but did uphold the Lincoln administration's prosecution of the war in The Prize Cases (1863), Roosevelt v. Meyer (1863), and Ex parte Vallandigham (1864). No one challenged the administration when it ended slavery in the District of Columbia and the federal territories and, finally, in the South itself with the Emancipation Proclamation. During this period a constitutional revolution took place without much input from the Court.

During Reconstruction the Court was a bit more assertive, reversing the wartime military conviction of a civilian in Ex parte Milligan (1866) and overturning government test oaths in Cummings v. Missouri (1867) and Ex parte Garland (1867). Regarding the key issue of the power of Congress to reconstruct the former Confederate states, the Court supported the federal government, upholding Reconstruction policy and laws in Mississippi v. Johnson (1867), Georgia v. Stanton (1867), Ex parte McCardle (1869), Texas v. White (1869), and Virginia v. West Virginia (1871). None of these cases dealt explicitly with race, but all had racial overtones and implications. If Congress could not enforce Reconstruction in the South, then former slaves would be left to the not-so-tender mercies of their former masters and the defeated Confederates. Thus, by refusing to interfere with Reconstruction, the Court seemed to be ready to allow Congress to remake American law to provide for racial equality.

The promise of these decisions began to fade with Blyew v. United States (1871). John Blyew and his codefendant murdered a black woman. The only witnesses to the crime were blacks, and Kentucky law did not allow blacks to testify against whites. With no chance of a conviction in state court, the U.S. Attorney took over the case and successfully prosecuted the pair for murder in federal court, where they were sentenced to death. In a 6 to 2 decision, however, the Court reversed the convictions, asserting that under the Civil Rights Act of 1866 and the Fourteenth Amendment, which granted citizenship rights to freed slaves, the federal government did not have to power to prosecute a simple murder case. Had the victim only been wounded, she could have brought an action against the men for depriving her of her civil rights, but since she was dead, there was no cause of action under the 1866 legislation, that is, the federal government had no jurisdiction under the new amendment or the 1866 act to try the men. The dissenting justices, Bradley and Swayne, protested this reading of the law and the new amendment as “too narrow, too technical, and too forgetful of the liberal objects” of the Civil Rights Act of 1866. Bradley argued that under the Thirteenth Amendment, which formally abolished slavery, the national government had the power to prosecute people who murdered former slaves in racially motivated attacks.

In the Slaughterhouse Cases (1873) the Court dealt another major blow to black rights. These cases did not involve blacks but did involve the implications of the new Fourteenth Amendment. The Court held that the amendment did not protect citizens from violations of most fundamental rights by their states. The states were not required, for example, to respect the rights guaranteed by the federal Bill of Rights. Justice Miller rhetorically asked, “Was it the purpose of the fourteenth amendment … to transfer the security and protection of all the civil rights which we have mentioned from the States to the Federal government?” He similarly wondered, “Was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States?” His answer was, of course, no; the states, not the national government, were to protect civil and political rights. In reaching this result, Miller refuted the understanding, held by many Republicans at the time, that the Civil War had, in fact, fundamentally changed American government by nationalizing both liberty and freedom. As a result of the decision, states would thenceforth be free to define the civil rights of all of their own citizens. For blacks, this was the beginning of the end of the hope that the Civil War had led to both freedom and equality.

Beyond Reconstruction

Decisions following The Slaughterhouse Cases confirmed the direction of the Court. In United States v. Reese (1876) the Court struck down the Enforcement Act of 1870, which had been designed to implement the Fifteenth Amendment, which prohibited racial discrimination in voting laws. In United States v. Cruickshank (1876) the Court prevented the prosecution of whites who had murdered blacks in Louisiana to prevent them from holding a public meeting. More than one hundred blacks had died in the assault. The message from the Court was clear: the federal government would not be allowed to protect the lives or liberties of former slaves. In Hall v. DeCuir (1878) the Court struck down a Louisiana law that required racial integration in public transportation. The Court claimed that the law interfered with interstate commerce. More than a decade later the Court would uphold statutes requiring segregation in Louisville, New Orleans, and Texas Railroad Company v. Mississippi (1890) and then inPlessy v. Ferguson (1896).

In Strauder v. West Virginia (1880) the Court gave blacks a rare victory, striking down a West Virginia law that prohibited blacks from serving on juries. Similarly, in Neal v. Delaware (1881), the Court overturned a conviction because no blacks had ever sat on juries in Delaware. In a third case, Ex parte Commonwealth of Virginia and J. D. Coles (1880), the Court upheld the prosecution of a state judge who had excluded all blacks from juries in his court. Had these three cases been followed and the thrust of them been implemented by the states or enforced by subsequent Court decisions, they might have led to a revolution in southern justice, but they were generally ignored and did not reverse the trend against black rights.

The way of the future was better set out in Virginia v. Rives (1880) (also known as Ex parte Virginia), wherein the Court held that blacks had no right to expect members of their race on a jury, even if there was no law prohibiting them from serving. Meanwhile, in Pace v. Alabama (1883) the Court refused to apply the Fourteenth Amendment to protect blacks and whites who married each other. In the same month, in United States v. Harris (1883), the Court declared that federal prosecutors could not charge twenty whites who had broken into a jail, where they beat three black prisoners and murdered a fourth. Justice Harlan, who was from the South, vigorously dissented, but to no avail. Harlan again dissented later that year in the Civil Rights Cases (1883), when the Court struck down the Civil Rights Act of 1875 on the ground that the federal government did not have the power to regulate private actors who chose to discriminate. Blacks throughout the nation protested this decision, believing it to be as bad as Dred Scott, as it, in effect, left blacks with no federal protection from private discrimination.

A year later the Court offered one last crumb to blacks. In Ex parte Yarborough (1884), also known as the Ku Klux Klan Cases, the Court upheld prosecutions of Yarborough and other Klansmen who had beaten a former slave in Georgia to prevent him from voting in a congressional election. The Court reasoned that the Fifteenth Amendment gave Congress the power to protect voters from private as well as state action. However, the Court would abandon this position two decades later in James v. Bowman (1903).

The last decade of the century signaled an end to any hope of civil rights protection from the Court. In Louisville, New Orleans, and Texas Railroad Company v. Mississippi (1890) the Court affirmed Mississippi's right to require segregation in trains that operated in interstate commerce. The Court had previously denied the right of states to regulate interstate transportation, but now, caving to the whims and desires of the Deep South, the Court accepted Mississippi's claim that its laws affected trains only once they entered the state. This was true enough; nevertheless, it still meant that railroads operating between states would have to add separate cars when entering Mississippi or would have to move passengers once they entered the state. As the Court had done through most of the century, in this case it ignored established doctrine or bent rules in order to accommodate racism. Louisville, New Orleans and Texas Railroad set the stage for a fully segregated South just as the age of Frederick Douglass came to an end. Douglass died in 1895, and the following year the Court would give its final blessing to racial segregation in Plessy v. Ferguson (1896).

See also Ableman v. Booth (Sherman Booth Case); Amistad; Black Seafarers; Chase, Salmon Portland; Civil Rights; Civil Rights Act of 1866; Civil Rights Act of 1875; Civil War; Constitution, U.S.; Crime and Punishment; Democratic Party; Discrimination; Douglass, Frederick; Dred Scott Case; Emancipation Proclamation; Fifteenth Amendment; Fourteenth Amendment; Free African Americans before the Civil War (North); Free African Americans before the Civil War (South); Free African Americans to 1828; Freedmen; Fugitive Slave Law of 1793; Fugitive Slave Law of 1850; Hayes, Rutherford B.; Inheritance and Slave Status; Laws and Legislation; Lincoln, Abraham; Marriage, Mixed; Pierce, Franklin; Political Participation; Proslavery Thought; Racism; Reconstruction; Republican Party; Segregation; Slave Trade; Slave Trade, Domestic; Slavery; Slavery: Mid-Atlantic; Slavery and the U.S. Constitution; Society of Friends (Quakers); Taney, Roger B.; Thirteenth Amendment; Violence against African Americans; and Whig Party.

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