Duties to the public
Some more on the conceptual issues involved in ideas such as equality, equal treatment, civil rights, public accommodation, and so on. Some comments by a dissenting justice in the Civil Rights Cases decision of 1883, in which the court killed the Civil Rights Act of 1875, an act by which Congress attempted to elaborate on and enforce the Fourteenth Amendment – Section 1 of which turned the US world upside down:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Room for conceptual questions there, of course (even apart from the baffling fact that the late 19th century Supreme Court chose to define corporations as ‘persons’, contrary to the intent of Congress in passing the amendment and to the normal meaning of the word); what is meant by privileges or immunities? What is meant by equal protection? Not much, was the answer of the Court in 1883. But Justice John Marshall Harlan dissented.
Congress had intended [in the Fourteenth Amendment], Harlan noted, to wipe out all discrimination against blacks and ‘to secure and protect rights belonging to them as freemen and citizens; nothing more. He took aim at [Justice] Bradley’s formalistic distinction between ‘state action’ and private discrimination. ‘In every material sense applicable to the practical enforcement of the Fourteenth Amendment,’ he wrote, ‘railroad corporations, keepers of inns, and managers of places of public amusement are charged with duties to the public, and are amenable, in respect of their duties and functions, to governmental regulation.’ On that issue, Harlan relied on the common law principle that ‘when private property is devoted to a public use, it is subject to public regulation.’ [Irons, People’s History of the SC, p 214]
That’s one view, and on that court at that time it was a minority view; but it is a view. It’s a little unnerving to see Anglican archbishops siding with the court majority that killed off the Civil Rights Act and left blacks without redress against the most brutal kinds of treatment* until the Brown decision overturned Plessy in 1954. I wonder if they completely grasp the kind of thinking they’re messing with.
*read Worse Than Slavery for detail on this
Sorry, but I’m a little lost here …
Perhaps it is something that a long-term resident of the UISA, or even a citizen of those rebellious colonies would understand better.
More information please?
Sorry, that was rather cryptic. Plessy is Plessy v Ferguson, a notorious 1896 Supreme Court decision that ruled that separate accommodations for blacks and whites were not unequal, thus making ‘separate but equal’ the legal doctrine until the 1954 Brown v Topeka Board of Education decision overturned Plessy. Both were a big, big deal in US history.
Right, that helps a lot – thanks.
And, of course, this was the self-same load of codswallop that used to be peddled in South Africa, isn’t it?
I can just remember the Brown case, but it still took a long time after that, didn’t it?
Wasn’t the “bus protest” (the principal protester died recently didn’t she?) after that, though?
I presume that “Brown” was rthe start of the civil-rights movement through the 50’s-70’s
Yep, to all that. It did take a long time. In fact there were two decisions in Brown: first on the substance, then almost a year later on enforcement. There was massive southern resistance – to the decision itself, let alone to everything that came after. The Chief Justice – Earl Warren – went to great lengths (really huge lengths; he worked on one justice over the course of twenty lunches) to get a unanimous decision, in hopes that that would calm resistance a little. It was uphill work because two justices really disagreed.
Yes the bus protest was after, yes she died recently – Rosa Parks. It was after, but Brown made it possible. The Fourteenth Amendment along with the 1875 Civil Rights Act that was meant to enforce the Fourteenth Amendment should have made it possible long before, but the 19th century Supreme Court (and the retreat of the Congress, and other factors) prevented that. It’s a dreadful story.
Yes Brown was the start of the civil rights movement. (And it was argued by Thurgood Marshall for the NAACP; he was later appointed to the court himself by Johnson.)
If you ever want to read about all this, an excellent book is Eric Foner’s Reconstruction.
I should write all these up for In the Libaray. When I get time…
Thank yopu Ophelia, that was very helpful.
Even over here, I’m only too aware that “reconstruction” went badly wrong, and that the “South” pretended that the Civil War of the USA didn’t happen.
I’ve heard visiting Southerners refer to it as “The war between the States”, and claim it was about “States Rights” and not slavery…..
Incidentally, for a cartoon take on this see ….
http://thepaincomics.com/
and then click on the one for
March 15 2006 “Civil War II” and read the “Artists Comments” as well as the drawings.