to obey the fugitive slave laws upholding it.18 On the other hand, many people in the slave States chose to defend with force their States' rights to decide the matter without Federal interference.

Civil war shortcircuited any further attempt to resolve the issue by Congressional or Executive action or by constitutional amendment. Persuasion takes place through the ordeal of war, but with agony and bitterness. More Americans lost their lives in this conflict between Americans than in all of the Nation's other major wars put together, including World War I, World War II, and the Korean conflict.19 The emancipation of the slaves and the occupation and reconstruction of the South created problems-problems of civil rights that are still unsolved.

This Commission has reviewed the history of America and the spirit of its laws in order to trace, and try to illuminate, the fundamental constitutional principles involved in civil rights. Denial of those rights and principles necessarily involves the nation as a whole. For if the idea of government by consent is the essence of this Republic, then for the sake of the American experiment in self-government, and not just for the vindication of the claims of certain persons or groups, the right to vote and the equal protection of the laws must be secured and protected. Above all, it is the Republic that requires a free electorate at least a Republic conceived in liberty and dedicated to the proposition that all men are created equal.

By returning to these fundamental principles of the Founding Fathers we can perhaps disentangle ourselves from much of the current disputation about recent decisions of the Supreme Court. Over the years the Court has given differing interpretations of the Constitution, and men may honestly differ about the wisdom of these interpretations. But the principles remain steadfast.

The authors and signers of the Declaration of Independence "intended to include all men," Lincoln reminds us. "They did not mean to say all were equal in color, size, intellect, moral developments, or social capacity." But they did consider all men equal in their Godgiven and hence "unalienable" civil rights. They so declared, Lin

18 See Ableman v. Booth, 21 How. 506 (1859), in which the State of Wisconsin resisted and declared invalid the Fugitive Slave Law. See also Prudence Crandall v. State of Connecticut, 10 Conn. Reports 339 (1834); Garrison, Brief Sketch of the Trial of William Lloyd Garrison (1834); Thoreau, Essay on Civil Disobedience; Parker Pillsbury, Acts of the Anti-Slavery Apostles (1883); H. C. Wolf, On Freedom's Altar-The Martyr Complex in the Abolition Movement (U. of Wisc. 1952).

19 "In all the major American wars, beginning with the Revolution and coming on through the recent Korean conflict, excepting only the Civil War, some 606,000 Americans lost their lives from battle and non-battle causes. In the Civil War alone more than 618,000 American servicemen lost their lives". Bell Irvin Wiley, "The Memorable War," 53 Missouri Historical Review 99, 101 (1959).

coln urged, in order that enforcement "might follow as fast as circumstances should permit". He added:

They meant to set up a standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence and augmenting the happiness and value of life to all people of all colors everywhere."

In a world where colored people constitute a majority of the human race, where many new free governments are being formed, where selfgovernment is everywhere being tested, where the basic human dignity of the individual person is being denied by totalitarian systems, it is more than ever essential that American principles and historic purposes be understood. These standards-these ideas and ideals-are what America is all about.

20 Lincoln at Springfield, June 26, 1857. See The Life and Writings of Abraham Lincoln (Stern ed., Modern Library), pp. 422–3.

CHAPTER II. THE REQUIREMENTS OF THE CONSTITUTION The Thirteenth, Fourteenth, and Fifteenth Amendments gave new definitions of what it means to be a citizen of the United States. The interpretation of these new constitutional requirements by the organ of the Federal Government established to interpret the laws of the land has necessarily provided the frame of reference for most postCivil War problems of civil rights.

The Thirteenth Amendment abolished slavery; the Fourteenth Amendment made the freed Negroes citizens of the United States and of the States wherein they reside and promised them the equal protection of the laws; and the Fifteenth Amendment provided that the right to vote shall not be denied or abridged on account of race, color, or previous condition of servitude.

But this only meant that nearly 4 million human beings whose ancestors had been torn from their roots in Africa and brought to this country in chains, who had known nothing but slavery, who had almost no education or training for citizenship, suddenly were turned into the mainstream of American life as free men and women.1

The general unreadiness for this revolution has shaped our history. The gap in the standards of life between a majority of Negro Americans at the bottom of the economic and social ladder and a majority of more fortunate white Americans has not yet been closed. Nor has the reluctance of many white people to grant Negro Americans their full rights of citizenship been overcome.

In each of the postwar amendments Congress was empowered to enforce the provisions by appropriate legislation. In 1866, 1870, and 1875, civil rights bills were enacted. In some of these acts for example, in provisions prohibiting racial discrimination in inns, public conveyances, and places of amusement-Congress undoubtedly assumed that it had plenary legislative power to enforce the rights established by the Fourteenth Amendment. However, in 1883, the Supreme Court held these sections of the Civil Rights Act of 1875 unconstitutional. Construing the amendment more narrowly than Congress did, the Court held that it prohibited only official State action, not individual private violation of civil rights, and that Congress could enact only corrective and remedial, not positive and general legislation.2

1 The number of U.S. Negroes rose from 757,208 in 1790 to 4,441,830 in 1860. At the last census enumeration before the Civil War the Negro slave population had grown to 3,953,760, while free Negroes numbered over 488,000. (Statistical Abstract of the United States, p. 22; also Collier's Encyclopedia, vol. 14, p. 416 C.)

2 Civil Rights Cases, 109 U.S. 3 (1883) Cf. Strauder v. West Virginia, 100 U.S. 303 (1880).

3

The Court had already in 1873, in a case dealing not with Negroes at all but with a State's power to regulate business, construed the privileges and immunities clause of the Fourteenth Amendment to protect only those privileges and immunities that derived from the status of citizenship of the United States, not from that of State citizenship, and defined these national rights so narrowly that the protection of most civil rights was left to State action. Thus the privileges and immunities clause was early divested of its constitutional vitality and has never once been applied to protect a civil right. Finally, as the high water mark in this judicial restriction of the Fourteenth Amendment, the Court approved the doctrine of "separate but equal." It did so in upholding a Louisiana statute requiring separate facilities for white and colored persons on railroads in the State. The Court's disapproval of the civil rights amendments and statutes is clearly indicated by Justice Brown's majority opinion. The object of the Fourteenth Amendment was "undoubtedly to enforce the absolute equality of the two races before the law,” he conceded. But he added:

Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane."

None of these decisions were unanimous. In vigorous dissent Justice Harlan argued that:

The substance and spirit of the recent amendments of the Constitution have been sacrificed by a subtle and ingenious verbal criticism. *** Constitutional provisions, adopted in the interest of liberty and for the purpose of securing, through national legislation, if need be, rights inhering in a state of freedom, and belonging to American citizenship, have been so construed as to defeat the ends the people desired to accomplish, which they attempted to accomplish, and which they supposed they had accomplished by changes in their fundamental law.

Harlan rejected the notion that the fifth section of the Fourteenth Amendment gives Congress the power to legislate only for the purpose of carrying into effect the prohibition on State action. The first clause of the amendment, he pointed out, is positive, creating and granting to Negroes citizenship in the United States and in the States wherein they reside. This grant of State citizenship, argued Harlan, secured at least exemption from race discrimination with respect to

* Slaughter-House Cases, 16 Wall. 36, 83 U.S. 394 (1873). Plessy v. Ferguson, 163 U.S. 537 (1896).

Id. at 544.

•Id. at 551–552.

'Civil Rights Cases, 109 U.S. 3, 26 (1883).

those rights enjoyed by white citizens in the same State. Therefore the amendment confers upon Congress the power to legislate for the enforcement of all its sections.

Harlan's dissent in Plessy v. Ferguson is even more noteworthy since its reasoning has been substantially adopted by the present Court. "Our Constitution is colorblind, and neither knows nor tolerates classes among citizens," he wrote. "It is, therefore, to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a State to regulate the enjoyment by citizens of their civil rights solely upon the basis of race." 9 He added that "the thin disguise of equal accommodations will not mislead anyone, nor atone for the wrong this day done." 10

Whatever the merits of the argument, the country was preoccupied with the new problems of national industrial development and ready to put aside old controversies. Federal troops had been withdrawn from the South in 1877 in the compromise negotiated over the election of Hayes. Meanwhile with the free rein given by the Supreme Court, the Southern States proceeded to enact and to enforce strict segregation laws."

Interestingly, the adoption of so-called Jim Crow laws did not occur on a large scale until some years after the Reconstruction had ended, and blossomed in full force only after the Supreme Court's approval of segregation.12 The eminent southern historian, C. Vann Woodward, observes that—

things have not always been the same in the South. In a time when the Negroes formed a much larger proportion of the population than they did later, when slavery was a live memory in the minds of both races, and when the memory of the hardships and bitterness of Reconstruction was still fresh, the race policies accepted and pursued in the South were sometimes milder than they became later. The policies of proscription, segregation and disfranchisement that are often described as the immutable "folkways" of the South, impervious alike to legislative reform and armed intervention, are of a more recent origin. The effort to justify them as a consequence of Reconstruction and a necessity of the times is embarrassed by the fact that they did not originate in those times. And the belief that they are immutable and unchangeable is not supported by history.1

13

No one can say what might have happened had not the Supreme Court cleared the way for the enactment of these laws requiring segregation. What did happen was widespread disfranchisement of

34.

B Id. at 48.

163 U.S. 537, 559 (1896).

10 Id. at 562.

C. Vann Woodward, The Strange Career of Jim Crow (Revised Edition, 1957), pp. 6,

12 Id. at 53-54, 56.

13 Id. at 47.