CHAPTER VIII

THE NEGRO AND THE SUPREME COURT

THE facts cited in the preceding chapters have doubtless appeared to the reader antagonistic to the spirit of democratic institutions. They seem to assign to the negro a social and political status very different from that it was intended he should occupy, if we are to judge from the ideals that prompted the federal legislation in his behalf during Reconstruction. It may be profitable, therefore, to ask whether these subtle differences of race, which we have seen play such a part in determining the actual position of the negro economically and socially, have affected his legal status also. Has the supreme court, in its interpretations of the congressional acts that followed the civil war, been influenced by these race differences, the psychological analysis of which we have attempted to give? The question is one of the greatest importance. It concerns more than the local status of the negro in the South. It is a question of the legal status of the race in American democracy as that status has been defined in the decisions of the highest tribunal of the nation.

"The supreme court," says Mr. Bryce, "is the living voice of the constitution — that is, of the will of the people expressed in the fundamental law they have enacted."1 The court The court is the mouthpiece of the people in the widest sense. It does not voice the transient and momentary outbursts of public sentiment. Through it usually speaks the sober, reasoned judgment of an intelligent and liberty-loving people. The veneration in which it is held by the masses of Americans and the power it exercises in the nation's life have been a marvel to foreigners from De Tocqueville's day to the present. This influence is all the more remarkable as it is in its last analysis moral rather than physical. It arises doubtless from the feeling of the nation that this tribunal is a faithful and unprejudiced interpreter of the social will which in a democracy is the ultimate source of power and authority.

The court's interpretations of the legal status of the negro, therefore, as that status was outlined in the federal acts of Reconstruction, are of the utmost importance to the student of the race question. Being far removed from the passions and prejudices of those sections where race friction arises, and yet with a thorough grasp of the situation, we may expect to find the court giving expression to the sober good sense of the nation.

1 American Commonwealth, I, p. 272.

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We shall find indeed that this is the case. markable series of judicial constructions of the war amendments and legislation based thereon the supreme court has registered the changes in public sentiment with regard to the negro that have taken place since the civil war. Incidentally it may be said it has also indicated the futility of one generation of legislators trying to determine for all time the status of a social group. In these decisions, to be sure, the court has often interpreted the language of the war amendments in a sense never intended by their authors. It has, in fact, created a body of national jurisprudence based upon this legislation in the form of decisions upon concrete cases brought to it for adjudication. To these decisions one must look, rather than to the acts of the Reconstruction legislators, for an understanding of the position of the negro in American democracy to-day.

We may distinguish three stages in the legal status of the negro. The first of these is commensurate with the old régime. Under it legislation in the South, where the masses of the race were to be found, tended to emphasise slavery as the negro's natural and normal condition. This is unmistakably evident in the old slave codes of the southern states. The culmination of this period is reached in the famous Dred Scott case of 1857. In this decision, the court,

voicing the ideas of the slave power then dominant, declared that persons of African ancestry, whether imported or held as slaves, could not become citizens of a state in the sense in which that word was used in the federal constitution, even though emancipated or born of free parents. The court claimed that "citizens" or "people of the United States," as these terms were employed by the framers of the constitution, included only the sovereign people who held the power and conducted the government. Since he belonged to an alien and subjugated race the negro was thought to have "no rights which the white man was bound to respect" and might, therefore, be justly reduced to slavery for the white man's benefit. Whatever may be said of the inherent wrong of Justice Taney's much-criticised phrase, we must remember that at the time it was uttered it had the support of legal precedent, both state and national.

The next stage in the evolution of the legal status of the negro is found in the war amendments and related federal legislation in connection with Reconstruction. These enactments were the last flowering of the old theory of natural rights, embodied in the declaration, preached by the Garrisonian abolitionists, and championed by Sumner in his struggle with the slave power in the senate. They were made the 1 Const., Act. I, Sec. I, 1.

basis of the attempted political and social rehabilitation of southern society, and reached their culmination in legislation, of which Sumner's civil rights bill of 1875 was a type.

The third and last stage, with which we shall be concerned in this chapter, deals largely with the undoing of the work of the Reconstruction period. As a result of the Reconstruction acts referred to above the negroes were in the letter of the law in the enjoyment of political rights equal to those of the whites. Their political influence, however, in view of their ignorance and poverty and the fact that many whites were disfranchised, was out of all proportion to their numbers and importance in the community. The Republican party, the champion of the negro's rights, assured to him this political supremacy since it controlled the southern political situation and filled most public offices with blacks.

Within a little more than a generation, however, the negro was shorn of practically all his political rights. The federal protection which Sumner thought that he had secured for the negro by congressional enactment and bayonet-rule disappeared with the breakdown of the carpet-bag régime. In spite of the passage of the fifteenth amendment and the insertion of an universal suffrage clause in the constitutions of the reconstructed southern states the efforts to make the