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Butler concluded the debate in an outburst of flamboyant theatrics which was to be the final notoriety of his House career in that Congress. The House thereafter passed the bill by a vote of 162 yea to 99 nay, with 28 not voting. Two Democrats, one from Pennsylvania and the other from Arkansas, voted yea; eleven Republicans, four from Tennessee, two from Virginia, and one each from Delaware, Georgia, Maryland, Missouri, and New Jersey voted nay. Otherwise, the vote was stric ily on party lines. Fifteen Republicans who had voted for the fourteenth amendment, as members of the House, and Poland of Vermont, who had voted for it as a senator, voted yea; and four Democrats who had voted against the fourteenth amendment, and Nesmith of Oregon, who as a senator had been absent, voted nay?
When debate on the House bill opened in the Senate, Senator Thomas F. Bayard, a Delaware Democratic lawyer, made a long speech on the constitutional defects of the bill. He denied that the advantages of public facilities were privileges and immunities of federal citizens within the meaning of the fourteenth amendment and quoted once again from the Slaughter-House Cases. The facilities in the bill were only subject to state regulations, he stated, and concluded that the subject was too trivial for the courts and would only breed litigation.210 The Republicans remained unimpressed. 211
The next day, February 27, 1875, the last day of Senate debate, Carpenter, the Wisconsin Republican who once had supported the bill, attacked the bill as unconstitutional. He, too, reiterated objections based on the SlaughterHouse Cases and the inherent limitations of the privileges and immunities clause 212 And Senator George R. Dennis, a Maryland Democrat, contented himself with predicting that the bill would be declared unconstitutional by the Supreme Court.213 With a final belittling of constitutional objections by Edmunds, and a last thrust by Thurman that the Senate was discriminating in banning discrimination only on racial grounds,214 the Senate commenced rejecting Democratic-sponsored amendments. The only one of interest here is an amendment sponsored by Senator Thomas W. Tipton, a Nebraska Republican lawyer who opposed the bill, that churches be substituted for theaters in the bill. This was laughed down.?
Edmunds then made a final speech. He first attacked the Democrats for their constant opposition to Negro progress and their continual cry that every new measure was unconstitutional. He analogized the right to use public facilities to the right to use public streets. Edmunds, who had voted for the fourteenth amendment and was now in charge of the civil rights bill, declared
209. Id. at 1011.
211. For example, Edmunds said: "The gentlemen on the other side have a stock of very good speeches." Id. at 1797.
212. Id. at 1861-63. 213. Id. at 1865. 214. Id. at 1866-67. 215. Id. at 1868-69.
that this amendment protected fundamental privileges and immunities, fundamental rights, which included the right to enjoy the same rights "without qualification and distinction upon arbitrary reasons, that exist in favor of all others." He said that this bill merely forbade anyone "to exclude from modes of public travel persons on the ground (of ancestry)," and that it was a "simple proposition of common right inherent in everybody [being] . put into a statute-book.” Accordingly, he declared, these "common rights, which belong necessarily to all men alike ... shall not be invaded on the pretense that a man is of a particular race or a particular religion.'
And then the bill passed, 38 yea, 26 nay, nine not voting. All the affirmative votes were cast by Republicans. Of these, eight had been senators who voted for the fourteenth amendment, 217 while seven had been representatives who likewise voted for the fourteenth amendment.218 The Democrats, all in the negative, were joined by seven Republicans, four from the North, Schurz of Missouri, and two from the South.219 Tlie most significant vote against the bill was cast by Senator William Sprague, a Rhode Island Republican who had voted for the fourteenth amendment.
VI. SUMMARY AND CONCLUSION
While many of Sumner's remarks reflected his personal notions about the Declaration of Independence, isolation of what may be called the ultraradical Republican position is still possible. Sumner, Sherman and several other Republicans took the view that, at common law, all men were entitled to equal and impartial enjoyment of the facilities and privileges furnished by certain institutions. These common-law rights, they reasoned, were privileges of a citizen protected by the Constitution. To ensure the recognition and enforcement of these rights, Congress could, in their view, directly order punishment for any individual who discriminated on the basis of race, ancestry or color. The institutions permissibly affected by the bill may best be classified, in Sumner's own word, as at least "franchised.”
The ultra-radical position was constitutionally untenable in the eyes of some Republicans, including Senators Trumbull, Sprague and Morrill of Maine, who stoutly maintained that these common-law rights were not among the privileges of a citizen. Other Republicans, including Senator Frelinghuysen, supported the bill, but their view of its substantive effect was quite different from that of the ultra-radicals. Accordingly, they could concede that the common-law rights were not privileges of a citizen and still could justify the bill's constitutionality—but on the basis of the equal protection clause.
216. Id. at 1870. 217. Anthony, Chandler, Cragin, Edmunds, Howe, Ramsey, Sherman and Stewart.
218. Allison, Boutwell, Conkling, Ferry of Michigan, Morrill of Vermont, Washburn, and Windom.
219. Carpenter, Ferry of Connecticut, Lewis, Hamilton, Schurz, Sprague and Tipton. As Frelinghuysen said at the beginning of the debates, and as most supporters of the bill eventually urged, the Act was intended to ensure that each citizen would receive the same protection given by state laws to all other citizens, without regard to color or ancestry. Because nearly all who supported the bill believed that every state recognized the individual's common-law right to enjoy the privileges and facilities of inns, public conveyances, theaters and other places of public amusement, the Act did not expressly state the limitation which most of its supporters conceded—that a citizen was not entitled by the Act to more rights than were granted to all citizens, without regard to race or color, by the law of the state. Finally, the majority basis for justifying direct federal intervention is ambiguous. Some supporters of the bill assumed that there actually existed state statutes specifically abridging the common-law rights of Negroes alone. Others apparently espoused the view that the federal government could intervene to protect the citizen's commonlaw rights even though the discriminatory action was that of an individual rather than of a state where a state omitted protection granted to others. This later view was apparently prompted by the belief that the states would refuse to enforce their laws to protect Negro rights.220 The Democrats, of course, were opposed to the Sumner bill equally with the fourteenth amendment, and construed the amendment in a perhaps too narrow manner.
A synthesis of these debates, then, indicates that the fourteenth amendment was viewed in a surprisingly narrow manner—at least when compared to the "broad purposes" rationale offered today. Even in the extreme view, the discrimination which the amendment proscribed was only that which the proprietors of a narrow class of franchised institutions, better described as public utilities,221 sought to assert against citizens. Indeed, even the extremists resisted Sumner's effort to extend his bill's coverage to private corporations. Senator Boreman took the view that the application of the bill to private corporations, even though incorporated under state law, would be an unconstitutional infringement of rights of private property owners. And Senator Conkling, who also had voted for the fourteenth amendment, indicated his concurrence with Boreman.
But the majority of the radical Republicans could not accept even this interpretation of the fourteenth amendment, but rather took the narrower view of congressional authority under the amendment that Congress could only intervene to ensure that rights conferred by a state on its white citizens were also granted by individuals to all citizens, including Negroes.
220. Numerous complaints appeared throughout the debates that the common-law remedy was of no avail because Negroes could not get equal or effective justice in state courts. See, e.g., 2 Cong. Rec. 427, 457, 4081-82, 4785-86 (1874); 3 Cong. Rec. 940, App. 15 (1875).
221. See Avins, Anti-Discrimination Legislation in Housing: A Denial of Freedom of Choice, in OPEN OCCUPANCY vs. FORCED HOUSING UNDER THE FOURTEENTH AMENDMENT 3, 8-10 (Avins ed. 1963).
Thus, in light of the foregoing, the modern notion that the Civil Rights Act of 1875 lends support to the proposition that discrimination by private business owners or private property owners is or can be banned under the fourteenth amendment is utterly untenable. Nor can one accept the view that the Radicals deemed Negroes to be the special pets of the law, entitled to any greater protection against discrimination than white persons. Indeed, it seems clear that the Radicals would not have banned racial discrimination in any business in which other arbitrary discrimination was legally permissible. Far from being an affirmation of the equal protection required by the fourteenth amendment, such special legislation for Negroes would have been a denial of equal protection to white persons who could have been rejected on non-racial grounds.222 Thus, a century after the fourteenth amendment was proposed, we have come full circle, from the time when Sumner decried discrimination based on color of skin because it was as arbitrary as discrimination based on color of hair,2
223 to the time when so gross a perversion of the fourteenth amendment is permitted that discrimination based on the color of hair is permissible but discrimination based on skin color is not.224
The principles of the fourteenth amendment remain the same today as they were 100 years ago, even though airplanes have replaced sailboats, taxi cabs have replaced horse-and-buggy cabs, and busses have replaced horsedrawn streetcars. Congress cannot regulate intrastate business under the fourteenth amendment. But if a state gives a monopoly or quasi-monopoly franchise to any business, and requires in return that all white persons be served without arbitrary discrimination, then the amendment gives the benefit of the same rule to Negroes and requires that the business not arbitrarily discriminate against Negroes.
Conversely, if the business has a legal right to arbitrarily exclude a white man it may arbitrarily exclude a Negro.
For example, if a white person had no legal right to prevent discrimination against him by a restaurant owner because he was sporting a beard, had voted the Republican ticket, or was a local John Birch Society leader, then the fourteenth amendment does not prohibit the restaurant owner from arbitrarily excluding Negroes simply because of their race. If a taxi driver, even though licensed, has, under state law, the right to leave a white man who has called him standing in the rain, for any reason whatsoever, then he may also leave a Negro standing in the rain. That the taxi-driver may have a monopoly or .quasi-monopoly justifies state regulation under the due process
222. Thus, the oft-cited dictum of Mr. Justice Frankfurter in Railway Mail Ass'n v. Corsi, 326 U.S. 88, 98 (1945) (concurring opinion) is historically inaccurate.
223. Cong. GLOBE, 40th Cong., 2. Sess. 3026 (1868); Cong. GLOBE, 40th Cong., 3d Sess. 902 (1869).
224. See Martin v. City of New York, 22 Misc. 2d 389, 201 N.Y.S.2d 111 (1960); Gegner v. Graham, 1 Ohio App. 2d 442, 205 N.E.2d 69 (1964), appeal dismissed, 1 Ohio St. 2d 108, 205 N.E.2d 72 (1965).
clause of the fourteenth amendment,226 but does not require it under the equal protection clause. A state may withhold legal protection from everybody; but the inconvenience to the majority of the people of such a withholding of protection is the deterrent which protects the minority. The refusal by a state legislature to extend a common-law rule requiring service to all, or even abolition of a pre-existing rule in a monopoly business, therefore, does not violate the equal protection clause, and Congress cannot interfere, regardless of the motive behind the move. It is only when a state by statutory or common-law rule gives a legal remedy against a business for arbitrarily refusing service to a white person that it must equally give such a remedy to a Negro. This—and no more is the requirement of the fourteenth amendment.
225. Munn v. Illinois, 94 U.S. 113 (1877).