PATRICK O. GUDRIDGE

PRIVILEGES THE

CIVIL

AND RIGHTS

PERMISSIONS: ACT

OF

1875"

Section 1 of the Civil Rights Act of 1875 provided: l • .. all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude. In the Civil Rights Cases, decided in 1883, the United States Supreme Court held that section 1 fell outside the constitutional grant of congressional power. 2 For lawyers, the significance of the Civil Rights Act of 1875 lies in the fact of its unconstitutionality. The opposed views of Justice Bradley and Justice Harlan, stated in the prevailing and dissenting opinions in the Civil Rights Cases, mark a divide within American constitutional law: a final and definitive rejection of Reconstruction assumptions) Receding from view, the 1875 Act becomes simply a * I am grateful to Richard Hyland, Stanley Katz, Richard Mendales, and Steven Winter for their helpful suggestions and criticisms. Errors and omissions, of course, are mine. •J 18 Statute 335, 336 (1875). ~2 of the Act fixed civil and criminal penalties for violations of ~1; ~ 3 and 5 addressed jurisdictional issues. ~4 provided that no citizen otherwise qualified could be barred from jury service on the basis of race• ~4 was not a source of constitutional difficulty, see Ex parte Virginia, 100 U.S. 339 (1880), and is not discussed in this essay. 2 CivilRights Cases, 109 U.S. 3 (1883). I will hereafter refer to "the Civil Rights Act" or "the Act," as though section 1 of the Act constituted the statute in its entirety. 3 In earlier cases, the Supreme Court had interpreted the Fourteenth Amendment narrowly, invalidated jurisdictional and remedial provisions of Reconstruction statutes, and quashed indictments in civil rights prosecutions. See C. Fairman, Reconstruction and Reunion, 1864-88: Part Two, (New York: Macmillan, Law and Philosophy 8: 8 3 - 1 3 0 , 1989. ~) 1989 Kluwer Academic Publishers. Printed in tt2eNetkerlands.

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backdrop; the Civil Rights Cases is the focus of close study.4 Historians in recent years have attempted to retrieve the Reconstruction mindset.5 The 1875 Act, however, is also peripheral from their perspective. It appears to be an afterthought in the legislative agenda, passing into law only after political support for Reconstruction had dissipated, an essentially empty gesture? The insignificance of the Act, it is sometimes suggested, is especially obvious in the light of its legislative 1987) pp. 221-288, 485-86; R. Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice and Civil Rights, 1866-1876, (New York: Oceana, 1985) pp. 135-229. In the Civil Rights Cases, however, the Court linked substance and procedure more explicitly than in previous decisions, directly rejecting unequivocal legislative conclusions about the reach of the Fourteenth Amendment. Because this essay studies the 1875 Act and its theoretical surroundings, I do not discuss the Civil Rigkts Cases in any detail here. But see note 54 infra. See, e.g., L. Tribe, American Constitutional Law (Mineola, NY: Foundation Press, 2d ed. 1988) pp. 1693-95. 5 There is disagreement as to whether Reconstruction Congresses were in fact committed to expansive definition and aggressive protection of the legal rights of black Americans. On one view, endemic racism and legislative inability to break flee of antebellum constitutional theories limiting congressional power resulted in Reconstruction statutes undereqnipped to meet the problems at hand. It appears to other students of the era, however, that the statutes themselves would not have limited aggressive federal enforcement; the primary fault lay not only in the general climate of racism, but in the failure of the Executive Branch and the courts to implement congressional policy. For useful summaries of the literature, see Kennedy, 'Reconstruction and the Politics of Scholarship', Yale Law Journal 98, 521 (1989); Kazerowski, 'To Begin the Nation Anew: Congress, Citizenship, and Civil Rights after the Civil War', American History Review 92, 45 (1987). In this article, I do not directly intervene in this debate. It may be, however, that Reconstruction legislation did not simply reflect legislative will and constitutional vision. Both political assessments and constitutional interpretations, seemingly, were framed in terms borrowed from more fundamental legal concepts of the period, themselves under pressure, at times facilitating and at times constraining statutory drafting. In order to understand the form Reconstruction statutes took, therefore, specification of their jurisprudential context may be necessary. 0 See, e.g., E. Foner, Reconstruction: America's Unfinished Revolution, (New York: Harper and Row, 1988); pp. 555--56, W. Gillette, Retreat from Reconstruction, (Baton Rouge, LA: LSU Press 1979) pp. 191-203.

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history? Not only did prohibitions against discrimination by churches and cemeteries drop out, 8 but the provision seemingly of greatest significance - prohibiting race discrimination in public schools - was also deleted prior to passage? It is hard to take seriously, we may think, a statute concerned exclusively with "inns, public conveyances on land or water, theaters, and other places of public amusement". There is, however, a .jurisprudence implicit in the Civil Rights Act of 1875 largely unnoticed by constitutional lawyers and historians studying Reconstruction politics. These presuppositions about the structure and function of law are worthy of our attention, in part because they are not often noticed in the legal analysis of our own era, in part because this .jurisprudence, once recovered, suggests reasons why Congress might indeed have taken the Act seriously, even in its final form. This essay formulates a first approximation of 1875 Act legal theory: an exploration in advance of further study. I look very closely at two moments early in the legislative history of the Civil Rights Act. I also summarize the thinking of a chief critic of the Act in the years between its passage and its invalidation by the Supreme Court. As revealed in an initial debate in December, 1871, the mode of analysis organizing the arguments of the author of the bill, Senator Charles Sumner, was not much different from that invoked by a leading early opponent, Senator Joshua Hill. Within these shared terms, not surprisingly, .justification for the Civil Rights Act was problematic. The legislative record also reveals, about a month later, the emergence of a very different theoretical perspective, suggestive of a stronger argument for the Act. Senator Sumner does not seem to have appreciated the implications of this alternative approach. It was, instead, the collective product of supporters and beneficiaries of the 7 See, e.g., M. Keller, Affairs of State: Public Life in Late Nineteenth CenturyAmerica, (Cambridge: Harvard University Press 1977)pp. 146-47. s See CongressionalGlobe, 42nd Congress, 2nd Session,p. 244 (Dec. 20, 1871). See, e.g., McPherson, 'Abolitionists and the Civil Rights Act of 1875',.Journalof American History 52, 493, 506--09 (1965); Kelly, 'The Congressional Controversy over School Segregation' 1867-1875, American History Review 64, 537, 558--62 (1959).

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proposed statute - black Americans personally caught up in the maelstrom of Reconstruction. Interestingly, Sumner, Hill, and the black defenders of the Civil Rights Act all made heavy use of the language of rights and privileges. In modern constitutional law, efforts to distinguish or otherwise relate rights and privileges are disfavored, exercises (it is thought) in conclusory labeling, l° It is clear, though, that ideas about the relationship of rights and privileges opened a way, in legal theory in the era of the Civil Rights Act, for systematic conceptualizations of law and society. II ,0 See, e.g., Van Alstyne, 'The Demise of the Right-Privilege Distinction in Constitutional Law', Harvard Law Review 81, 1439 (1968). The terminology nonetheless remains in intermittent use, provocative of occasional defense. See, e.g., Smolla, 'The Reemergence of the Right-Privilege Distinction in Constitutional Law: The Price of Protesting Too Much', Stanford Law Review 35, 69 (1982). ~J In two influential studies, Stephen Siegel has demonstrated the organizing importance of the rights/privileges distinction in nineteenth century American legal thought. See Siegel, 'Understanding the Lochner Era: Lessons From the Controversy Over Railroad and Utility Rate Regulation', Virginia Law Review 70, 187 (1984); Siegel, 'Understanding the Nineteenth Century Contract Clause: The Role of the Property-Privilege Distinction and "Takings" Clause Jurisprudence', Southern California Law Review 60, 1 (1986). Siegel's work treats the concept of "privileges" as possessing an essentially negative cast, as referring to arbitrary, unequally distributed, legislatively-conferred benefits. See, e.g., 'Understanding the Nineteenth Century Contract Clause', Southern California Law Review 60, 57-66. We will see, however, that the debate provoked by the 1875 Civil Rights Act discloses alternative, less pejorative conceptions of "privileges." These versions, perhaps, help to explain (for example) why Congress, in drafting section 1 of the Fourteenth Amendment, might regard "privileges" as worthy of constitutional protection: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. . . . " See also U.S. Constitution Article IV, ~2 (Privileges and Immunities Clause). Over the course of the nineteenth century, the view of "privileges" that Siegel emphasizes may have in fact overwhelmed alternative understandings. Indeed, I suspect that the history of "privileges" in post-Civil War American legal thought, if fully written, might show the shift in the term's associations as part of a larger movement, including (inter alia) the new mode of constitutional analysis emergent in the Civil Rights Cases. Arguably, such an analysis might serve as a legal supplement (or test) of Stephen Skowronek's political account of the transformation of American gov-

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Thus, Thomas Cooley, who discussed the Civil Rights Act of 1875 at length in his 1879 Treatise on the Law of Torts, framed his constitutional critique of the Act within the terms of a version of rights/privileges analysis revealing of Cooley's preoccupation with the prospect of legal and social disorder. Cooley's variant departed from the theoretical starting points of legislative debate and the arguments of black advocates. But it discloses surprising links with the thinking of Cooley's contemporary, Oliver Wendell Holmes, who (along with Bentham and Austin) shifted emphasis away from rights and privileges, anticipating the modern tendency. Up to a point at least, it is possible to reformulate the theoretical frameworks used by defenders and critics of the Civil Rights Act of 1875 in ways which bring to bear modern analytical contributions. I undertake two brief investigations. Initially, in the spirit of deontic logic, I outline a model of important parts of Cooley's dissection of the Civil Rights Act, identifying both the normative organization of his argument and its structural vulnerability. And I conclude by borrowing from Derek Parfit's Reasons and Persons, in order to reinterpret the arguments of black supporters of the Act in light of conceptions of personal identity. It becomes possible, as a result, to frame an account of the Act that suggests its appeal to both its intended beneficiaries and its authors - to merge, therefore, jurisprudence and history. A. LEGISLATIVE DEBATES: THE ORGANIZATIONAL ROLE OF THE RIGHTS/PRIVILEGES DISTINCTION In 1870, Charles Sumner submitted to the United States Congress a first version of what would become the Civil Rights Act of 187572 His erning institutions in the period 1877-1920. The rights/privileges distinction, it would seem, precisely captures, in law, the essence of the regime of courts and parties that Skowronek sees as organizing nineteenth century political life. See S. Skowronek, Building A New American State: The Expansion of National Administrative Capacities, I877-1920, (New York: Cambridge University Press, 1982) pp. 19162. The changing fortunes of the distinction, within law, might therefore echo (or counterpoint) political developments. ,2 Sumner was the "principal antislavery spokesman in the United States Senate"

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bill, however, did not receive active consideration until late in 1871, when Sumner re-introduced it, as an amendment to a proposal then before the Senate to extend amnesty to former Confederate officeholders. The amnesty act was a matter of great interest at the time intended by its sponsors as an important step in establishing a North/ South coalition free to move beyond Civil War issues. Through use of the amendment procedure, Sumner intended to force Senate debate concerning his civil rights bill, and (he apparently thought) tie future reconciliation to final resolution of the claims of the freed slaves. In fact, the tactic backfired. Opponents of amnesty supported the civil rights amendment precisely in order to reduce Southern support for amnesty. The combined bill failed to secure congressional approvalj 3 The intricacy of the background maneuvering, however, is not (for present purposes) the point. Sumner succeeded in triggering a Senate debate addressing the merits of the civil rights bill. This framework of argument remained, when civil rights returned to the legislative agenda in subsequent years, the principal analytical resource put to use by members of Congress wishing to declare their views. The rights/ privileges distinction, as we will see, supplied the underlying organizing terms upon which the argument was built. 1. December 20, 187I: The language of legislative argument - Amnesty had generated its own rhetoric of rights and privileges. For example, a supporter speaking just before Sumner proposed his amendment sought to separate eligibility for public office (the result of amnesty) from the question of whether the beneficiaries of amnesty deserved punishment for rebellion (and thus, as a matter of right, should continue to be barred from public life): 14 before and during the Civil War; over the course of Reconstruction, he was well-known for "his unceasing efforts to secure to Negroes all the rights of man." D. Donald, Charles Sumner and the Rights of Man (New York: Alfred A. Knopf 1970) pp. vii, 8. 13 For discussions emphasizing the political choreography organizing the amnesty and civil rights debates, see C. Fairman, supra, 158--70; D. Donald, supra, 52939; Kelly, supra, 546-52. ,4 CongressionalGlobe, 42nd Congress, 2nd Session, p. 239 (Dec. 20, 1871) (Sen. Buckingham). See also idem, p. 246 (Sen.Alcorn).

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This cannot be called punishment. Penalty is due and should have been inflicted, but this will be only privation. If Absalom had lived after his treason, and had been denied a seat at his father's table, could such denial have been regarded as a punishment for his crime? Would it have been more than a denial of a privilege which he had previously enjoyed? Other proponents emphasized that amnesty, like office-ban, was not a matter of right: "I have not been able to view this measure in the light in which some other Senators have spoken of it, as one of justice to the people of the South . . . . It is simply a question of the highest political wisdom . . . " ~ Or: "a safe and sound measure of public p o l i c y , . . , a thing of charity and mercy, of unmerited grace"." Sumner, introducing his amendment, located it within the rights/ privileges scheme as well, in order to both link and distinguish amnesty and civil rights: ~v Mr. President, we have all heard of the old saying, "Let us be just before we are generous." I do not like to be against anything that may seem to be generous; but I do insist always upon justice; and now that it is proposed that we should be generous to those who were engaged in the rebellion, I insist upon justice to the colored race everywhere throughout this land. . . . An extended colloquy followed, Sumner and Joshua Hill, Senator from Georgia, disagreeing as to whether equal access to hotels, inns, theaters, and other such places was, as Sumner insisted, a matter of right, or rather privilege. Hill disagreed with Sumner's "defi~fition of rights": 'a What he may term a right may be the right of any man that pleases to come into my parlor and to be my guest. That is not the right of any colored man upon earth, nor of any white man, unless it is agreeable to me. Sumner saw "no question of society here": t') Js Idem, p. 247 (Sen. Scott). 16 Idem, p. 248 (Sen. Wilson). iv Idem, p. 240 (Sen. Sumner). ,8 CongressionalGlobe, 42nd Congress, 2nd Session, p. 242 (Dec. 20, 1871) (Sen. Hill). Hill had supported the Union in the Civil War, but retained ties with the tradifonal Southern leadership. See C. Fairman, supra, at 160. ~9 CongressionalGlobe, 42nd Congress, 2nd Session, p. 242 (Dec. 20, 1871) (Sen. Sumner).

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The Senator may choose his associates as he pleases. They may be white or black, or between the two. That is simply a social question, and nobody proposes to interfere with it. That taste which the Senator has now declared belongs to him, he will have free liberty to exercise always, selecting always his associates; but when it comes to rights, there the Senator must obey the law, and I insist that by the law of the land all persons without distinction of color shall be equal before the law. Show me, therefore, a legal institution, anything created or regulated by law, and I show you what must be opened equally to all without distinction of color. Hill resisted. Sumner's formulation, he thought, overstated the i m p o r tance o f the issue: 2o I must confess, sir, that I cannot see the magnitude of this subject. I object to this great Government descending to the business of regulating the hotels and common taverns of this country, and the street railroads, stage-coaches, and everything of that sort. It looks to me to be a petty business for the Government of the United States. Association was a m a t t e r o f personal privilege, o f c o m f o r t or taste: 2~ What the Senator calls comfort is to mix up the passengers on a railroad, putting one black man and one white man side by side, throughout the train, I suppose. I do not see, myself, that that would be the utmost comfort. It might be to some; I do not know how it might be with the Senator himself; but I confess to having a little penchant for the white race, and if I were going on a long journey, and desired a companion, I should prefer to select him from my own race. S u m n e r insisted: 22 It is not according to his taste; that is all. Now, how often shall I say that this is no question of taste; it is no question of society; it is a stern, austere, hard question of rights. And that is the way that I present the question to the Senate. There is no taste about it; there is no society about it; it is simply a question of equal rights. At this point, S u m n e r resorted to example. Frederick Douglass, the 20 Idem (Sen. Hill). 21 Idem. 22 Idem (Sen. Sumner).

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celebrated ex-slave and abolitionist, now a member of a government commission, had been prevented by a ship's captain from dining with fellow commissioners. Outrages of this sort were the concern of the civil rights amendment. Hill concluded, however, that Sumner was not seeking to rectify only such obvious wrongs: 23 Upon the same principle the Senator would complain, if some dirty, ordinary black man had proposed to take a seat at that table with the other guests, if he was not permitted to do it as Mr. Douglass was, if Mr. Douglass had been permitted on account of his having the commission in his pocket, and on account of high and acknowledged intelligence and of his associations. Sumner thought that Hill had once again missed the point: 24 And here, again, I wish it understood that there is no question of social life. . . . A question of rights cannot be encountered by any social question. I may have whom I please as my friend, as my acquaintance, as my associate, and so may the Senator; but I cannot deny any human being, the humblest, any right of equality. He must be equal before the law. . . . The two Senators ended their exchange as much in disagreement as when they began. Their differences of view, however, are for present purposes less important than the analytical framework their colloquy reveals they shared.

2. December 20, 1871: The legislative jurisprudence - Near the close of discussion of the amnesty bill and the civil rights amendment on December 20, Senator Alcorn of Mississippi observed: "I think there is a distinction between rights and privileges, but it seemed to me that in the discussion today the two were blended in such a form that no one knew where the right went out and the privilege came in . . . . ,25 Clearly, there was disagreement as to the application of the terms right and privilege. But there also seemed to be a consensus as to the associations or connotations the two concepts generated: 23 Idem (Sen. Hill). 24 Idem (Sen. Sumner). 2s Idem, p. 246 (Sen. Alcorn).

Patrick O. Gudridge

92 Rights

Privileges

Equal

Restricted

Impersonal

Personal

Objective

Subj ective

Rights, it was clear, were equal: held by all or none. As clearly, privileges were restricted: their conferral involved an exercise in discrimination. Rights were also impersonal, coming within the domain of "principle" or "law." Their application did not turn on the qualities or attributes of the particular person asserting them. Privileges, however, depended precisely on personal characteristics: who was black or white, or "dirty" and "ordinary" or "of high and acknowledged intelligence." Which characteristics mattered, moreover, depended on who granted the privilege; in this sense, privileges (more precisely, their conferral) were subjective - questions of "penchant," of "whom I please," of what was "agreeable to me," of "taste" or "comfort," of "wisdom" or "policy," of "charity and mercy, of unmerited grace." Rights, in contrast, were objective insofar as their recognition was not a matter of choice, but inescapable '[justice" or "due," "stern, austere, hard". The discussions of amnesty and civil rights disclose agreement in another respect as well. Legislative references to "civil," "social," and "political" spheres invoked categories which, everyone seems to have agreed, were free-standing. To be sure, notions of "public" and "private" were implicated in the use of these terms - Hill, for example, tended to see all social exchanges as cousins of conversations within the home. No simple distinction between "public" and "private," however, explains legislative uses of the term "privilege." Amnesty and home entertainment were both questions of privilege. If there was a distinction, it was drawn directly through the use of the categories of the "political" and the "social," seeming to fall on one side of the line, and the "civil," located on the other side.

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Taken together, the notions of civil, political, and social, and the distinction between rights and privileges, described an elaborate jurisprudence. From one perspective, the distinction between the civil and the social marked off different forms of interactions among individuals, while the distinction between rights and privileges separated different sorts of political relationships between individuals and government:

Civil

Social

}

Individuals vs. Individuals

Rights

Privileges

}

Individuals vs. State

The civil sphere, with respect to dealings among individuals, and the domain of rights, insofar as an individual's interaction with government was concerned, were both fields of obligation - defined in terms of claims individuals or government were required to honor. By contrast, in social settings, or in matters of government privilege, the idea of choice replaced that of obligation - individuals or government could act (or not) as a matter of discretion.

Obligation

Choice

Civil

Social

}

Individuals

Right

Privileges

}

Political

Alternatively, the categories civil, social, and political were terms falling within the rights/privileges account of government (as a description of claims government must or simply may acknowledge). It would have been possible, for example, to generate a history of the change in legal status of black Americans:

Patrick O. Gudridge

94 U n d e r the Law of Slavery: 26 Civil

}

Privileges

Political

}

Privileges

Social

}

Privileges

After the Fourteenth Amendment: 27 Civil

}

Rights

Political

}

Privileges

Social

}

Privileges

26 Insofar as it protected the interests of slaves, or attached legal consequences to their acts, the law of slavery proceeded not by referring directly to the rights of slaves, but to the property rights of owners or the obligations of humanity the law itself might impose upon free persons in their dealings with slaves. See generally M. Tushnet, The American Law of Slavery, 1810-1860 (Princeton: Princeton University Press 1981). Because slaves themselves figured only indirectly as beneficiaries of the law, because their interests were protected only as a result of considering the interests of others or the concerns of society generally, characterization of their legal protection as a matter of "privilege" is appropriate. In this regard, it is also relevant to note that the law of slavery was set-off, by and large, as a separate category, see idem 10, 158-169, 217, and that slave law, as a separate category, was regarded as originating in positive law rather than custom or common law. See R. Cover, Justice Accused (New Haven: Yale University Press, 1975), pp. 8-30. 27 Section 1 of the fourteenth amendment guaranteed to all persons due process and equal protection of law. It also assured citizens of the United States equal access to the privileges or immunities of national citizenship. The question of what the language of the fourteenth amendment accomplished is, of course,

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After the Fifteenth Amendment: 2s Civil

}

Rights

Political

}

Rights

Social

}

Privileges

Note the difference between the two perspectives: In the first, the separation of individual and governmental realms was taken as given, as prior to the analysis :- as though government itself could not redefine the boundaries. In the second, however, the categories of civil, political, and social themselves became the subject of governmental action; the issue was whether the appropriate action traced from notions of right or privilege. The results, of course, were the same: but rhetorically, two different modes of constitutional argument suggested themselves - one starting from notions of the individual as set off from government (a rhetoric of liberty); the other beginning with the question of government as such (a rhetoric of power). controversial. See W. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine (Cambridge: Harvard University Press, 1988), pp. 1-12. I have outlined elsewhere the statutory evidence suggesting that Reconstruction Congresses, at least, believed that the fourteenth amendment provided authority for federal protection of "civil" fights - common law rights, for example, to enter into contracts, to acquire property, and to obtain access to courts to enforce contract and property rights and as well as to protect personal security. See Gudridge, 'The Persistence of Classical Style', University of Pennsylvania Law Review 131, 663, 681--82 n. 62 (1983). From this perspective, the 1875 Civil Rights Act tested the limits of the definition of civil "rights": equal access to theaters, hotels, and carriers, were arguably matters of privilege falling outside the fourteenth amendment. In the Slaughterhouse Cases, 83 U.S. 36 (1872), the Supreme Court had held that the only "privileges" the fourteenth amendment protected from interference were those otherwise granted by Congress or the Constitution; Congress could not, therefore, rely upon the fourteenth amendment itself to justify protection of"privileges." 28 The fifteenth amendment prohibited denials of the right to vote on the basis of race.

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B. A REVISED VERSION OF RIGHTS AND PRIVILEGES: THE BLACK CRITIQUE OF LAW AND SOCIETY

1. January 17, I872: Tableau vivant - Speaking at length in support of his amendment on January 15, 1872, Sumner reiterated his belief that the question was one of rights, therefore equality, therefore (in particular) "Equality before the Law". 29 The aim of the bill was "equal enjoyment of all institutions, privileges, advantages, and conveniences created or regulated by law" - all regarded as matters of right. 3° For Sumner, it was obvious that his amendment, given its legal focus, addressed civil, and not social matters: the bill simply enforced rights either already protected at common law, or straightforward extensions of previously-recognized common law rights. 3~ As a result, in his view, there was "no question of society," and thus no room for argument that the matters addressed fell within the realm of personal choice? 2 The necessary distinctions were easily and clearly drawn. This resolution of the "question of society," however, was itself a source of difficulty. Indeed, senatorial critics, taking their cue from the introductory colloquy, had begun to express doubts even in advance of Sumner's speech. If the "civil rights" his amendment would secure 29 CongressionalGlobe, 42nd Congress, 2nd Session, p. 381 (Jan. 15, 1872). 3o Idem. Sumner argued that the fourteenth amendment guarantee of access to courts - "the right to testify" - and the fifteenth amendment guarantee of "the right to vote" were simply parts of a large ensemble, encompassing as well "other rights without which Equality does not exist." Idem. 31 Seeidem 383-84. •32 Idem 382. The object is simply Equality before the law, a term which explains itself. Now, as the law does not presume to create or regulate social relations, these are in no respect affected by the pending measure. Each person, whether Senator or citizen, is always free to choose who shall be his friend, his associate, his g u e s t . . . . His house is his "castle:" and this very designation, borrowed from the common law, shows his absolute independence within its walls; . . . but when he leaves his "castle" and goes abroad, this independence is at an end. He walks the streets; but he is subject to the prevailing law of Equality; nor can he appropriate the sidewalk to his own exclusive use, driving into the gutter all whose skin is less white than his own. But nobody pretends that Equality in the highway, whether on pavement or sidewalk, is a question of society. And, permit me to say, that Equality in all institutions created or regulated by law, is as little a question of society.

Idem 382.

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were already recognized at common law, and if the fourteenth amendment guaranteed all persons access to state courts to vindicate common law rights, what was the practical significance of the amendment? 33 Indeed, if state courts were available to protect common law rights, what was the constitutional justification for federal legislation? 34 These questions acquired an additional importance, as Senators, anxious to keep amnesty unencumbered, suggested that the freed slaves or other black Americans might themselves prefer to delay consideration of Sumner's bill. 3s As though addressing these concerns, Sumner had introduced into the legislative record, as early as the first day of debate, letters from black supporters of his bill testifying to the existence of support for its passage, as well as the failure of the states to protect common law rights in fact. This tactic moved from periphery to center on January 17. Sumner undertook the marathon exercise of presenting to the Senate some 34 letters, newspaper articles, resolutions, and reports, most the work of black writers, all (he thought) tending to prove his case for the civil rights bill. 36 The resulting amalgam is an extraor33 See, e.g., CongressionalGlobe, 42nd Congress, 2nd Session, p. 279 (Dec. 21, 1871) (Sen. Kellogg) ("the colored man in the State of Louisiana now has all the rights that the Senator's bill would give him"); idem p. 246, 247 (Dec. 20, 1871) (Sen. A/corn). 3, Either Sumner would have had Congress directly regulate the conduct of ordinary businesses, constitutionally difficult in light of the fourteenth amendment's language emphasizing state action, or such ordinary businesses would themselves have had to be deemed, rather artificially, state institutions. The latter alternative in particular was succinctly criticized by Senator Thurman: It makes every tavern-keeper the State in which he lives; every manager of a theater the State in which he lives; every conductor of a railroad the State in which he lives; and under an amendment of the Constitution that only authorizes you to deal with States it undertakes to say that every conductor of a railroad, and every manager of a theater, and every little hotel-keeper or inn-keeper in the United States is the State in which he resides. I shall have to get blind and be unable to read the Constitution before I can ever go for such a bill as that.

CongressionalGlobe, 42nd Congress, 2nd Session, pp. 279-80 (Dec. 21, 1871). 35 See,e.g., idem p. 278 (Sen.Alcorn). 3~ See CongressionalGlobe, 42nd Congress, 2nd Session, pp. 429-35 (Jan. 17, 1872). The efforts of black and white supporters of the civil rights bill, which

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dinary document: a kind of tableau vivant, displaying the views and experiences of individuals who believed that their own lives, concretely and directly, were at stake, and who therefore frequently depicted political argument and autobiography as overlapping - each to be understood in the other's terms. Clearly, the writers supported Sumner's amendment. Their underlying assumptions and organizing vocabulary, however, produced an analysis notably different from that of either Sumner or his opponents. It amounted, we can see, to a not entirely implicit and substantially pointed jurisprudence. The emphasis, both analytically and concretely, fell upon overlap (integration) rather than distinction (segregation). Four points stand out: 3v First, Sumner's supporters agreed that, without his amendment "we are denied the full rights of citizenship." (See Appendix, Table I, Statement 3) Their concern, however, seems not to have been simply addition, but reinforcement: what was missing would strengthen what was present. "[O]ur so-called 'free rights' are myth. They are simply 'airy bubbles.'" (I, 1) Adoption of the amendment would "isolate and crystalize beyond disturbance, dispute, or recall the rights then acquired." (I, 2) Second, even as they developed the image of reinforcement, writers frequently deemphasized (although they did not entirely abandon) use of the term "rights" as the unit of legal description. The civil rights bill encompassed both "rights and privileges." (I, 5; see also I, 4) Equality was an attribute of either - indeed, writers used the formula "equal privileges" as though it summarized the entirety of what was sought. (See I, 6-8) Third, the objective of the amendment, for many writers, was t~.

produced the materials Sumner drew upon, are briefly described in McPherson, 'Abolitionists and the Civil Rights Act of 1875', Journal of American History 52, 493, 496-501 (1965). 3v The passages within the overall tableau which provide the basis for the conclusions I am about to draw are collected in a series of tables in the Appendix. Quotations from particular passageswill be identified by parenthetical reference to the relevant table. For example, the reference ~(I, 1)" directs the reader to the first passagein the first table.

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exploit the overlap of civil and social, to use law to adjust taste. The underlying problem was the racial prejudice of whites. "Equal in the law, equal with the ballot, equally taxed, and bearing equally all the responsibilities of the citizen, we are stripped of the habiliments declared self-evident by the fathers through a defiant, unlawful, unchristian sentiment." (II, 3) The result of "baleful sentiment," however, was not simply the aggregate of "the base practices" of whites (II, 3); there was a corollary adjustment in black attitudes and perceptions. "We are weary of being consumed by this moloch Caste; we are weary of being hunted down by the ghost of the defunct system of slavery; we are weary of being reminded of servitude more galling than Egyptian bondage . . . . " (II, 1) In particular, it seemed to the writers that it was white behavior in public places which communicated most clearly the "galling" message: "reminded on every hand that we are regarded as inferiours, and that however well educated, and however respectable, we can not receive the same treatment in the public schools, in the cars, on steamboats, at hotels, and at places of amusement and instruction . . . . " (II, 5) The effect of this system of reminder was obvious: To attempt the education of a person in the midst of a tolerated and justified system of caste, is sure to dwarf rather than draw out and make useful his powers. It leads one so far to feel himself inferior to those of the dominant class in the midst of whom he moves, as too often to accept patronizing treatment for a recognition of his manhood and his rights: to accept edibles kindly given from a basket, while he fails to make demand for suitable recognition of his rights at the public hotel. . . . (II, 6)38 How would law affect attitude? Law was itself a form of social address. Sumner's "supplementary civil rights bill" (II, 6) extended "equality" 38 In 1870, Frederick Douglass had argued similarly: • . . while all lucrative e m p l o y m e n t s are closed to the colored race, and the highest callings opened to t h e m are o f a menial character; while a colored gentleman is compelled to walk the streets o f our largest cities like N e w York unable to obtain admission to the public hotels; while state-rooms are refused in our steamboats, and berths refused in our sleeping-cars, on account o f c o l o r . . , the negro is not abolished as a degraded caste . . . .

Quoted in McPherson, 'Abolitionists and the Civil Rights Act of 1875', Journal of

AmericanHistory 52, 493, 494 (1965).

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throughout "the whole system" otherwise "incomplete and inharmonious." (II, 4) It thereby announced that "the legal status of all classes in the country is completely settled . . . " (II, 2) The message would have its effect: Let it be distinctly understood that the [constitutional] amendments and their legitimate results are finalities, that there is to be no distinction on account of race, color, or previous condition of servitude in reality as well as name. Then, and not fill then, can we confidently look for a cessation of a system of outrageous treatment. . . . (II, 2) "[C]ustom" would be "reconciled." (II, 4) And individuals would be free "to make demand for suitable recognition." (II, 6) Fourth, the notion of "recognition" was especially important for the writers, the conceptual link (in the abstract) between the individual and society, and the ultimate objective (so it appeared) of their own careers. Recognition was a matter of individual accomplishment: o f social equality we say nothing, because there is no such thing as social equality; every white man can never be the social equal of every other white man; no more can every colored man be the social equal of every other colored man. It is a matter which ought to be regulated by character and culture. . . . (II,

5) Recognition was also a social fact, a result not only of the individual's accomplishment but the acknowledgment of others. Acknowledgment, however, was not arbitrary, but a matter of justice - a concept relevant in both society and law: "And as far as colored men are educated, learned, virtuous, and influential, I would have them recognized and treated legally and socially according to their worth." (II, 6) Indeed, the prototypical grievance for which Sumner's bill was redress, according to many writers, was an unjust failure of acknowledgement, depicted in terms jointly legal and social. "To-day colored men in the South, acting in high and respectable positions, both State and national, are often treated with less consideration than favored servants in hotels and upon public conveyances." (III, 3) Illustration was often autobiographical: Here is in instance unparalleled in history (sacred or profane.) I am a member of the Legislature of North Carolina. I passed a charter through the house in favor

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of a steamboat company. On returning home my only route is on the line belonging to the said company; and on this I am denied a first-class passage; am consigned to a prescribed quarter of the boat, a place set apart for "colored people;" a place, sir, only suited for the meanest and filthiest wretches on earth. Such are those which Americans fit up for my race irrespective of wealth, education, or gentility. [¶] Sir, if I am a free citizen of this "grand Republic," why am I denied privileges which are given to my white brother...? (Ili, 1) The equality claimed, it should be clear, was an equal application of principles of hierarchy. Injustice, therefore, lay in false grouping. "It may not be out of place to state that the colored women, no matter of how good a character, of how much dignity and refinement, if they wish to visit a theater, are obliged to climb three or four flights of stairs, and then sit among the harlots . . . . " (III, 4) "[M]y white brother": The community to which writers sought entry was not defined by race. I don't see why discrimination cannot be made among colored people, for example if a colored person lacks self-respect and common decency why should well-bred colored persons be stigmatized, simply because they happen to belong to the same race? I am decidedly in favor of allowing water to find its level. (III,

6) It was, rather, an elite of merit, acknowledging each other's achievements, most clearly in social settings at the same time exclusive and inclusive - hotel, restaurant, first class transportation. 39

2. The jurisprudence of privilege - Taken together, evaluated only in terms o f quantity and intensity, the letters plainly demonstrated black support for Sumner's bill. The real accomplishment of the writers, though, was normative and interpretive: an account of why supplementary civil rights should matter, both to the black writers them39 The themes of elite membership and public acknowledgement are perhaps clearest in the following passage; ironic, pretentious, finally poignant: Your humble correspondent has had the distinguished honor of sitting in the same box at the Grand Imperial Opera at Paris with one of the French deputies or members of the Corps Legislarif; and, what is strange to say, no one's equilibrium was in the slightest degree disturbed by reason of my presence in that conspicuous locality. On the contrary, every one seemed to vie with each other who could make me feel most at home, and entertain me the most agreeably. (Iti, 6)

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selves and to their legislative readers. Individuals, black and white, were made to appear incompletely resolved, to some important extent, in their beliefs and attitudes. Law was represented as capable of increasing resolution, as reinforcing what were otherwise only tendencies. And resolution, in the direction the civil rights bill pointed, was portrayed as in two ways advantageous from the legislative perspective - contributing to public order by signaling the impropriety of white prejudice; completing the emancipatory program by corroborating black claims to full individuality. The mechanism used to present these claims was three-part. Two parts departed from the shared assumptions organizing the arguments of Sumner and his senatorial critics. The third reformulated another shared assumption. First, civil and social regimes were set up as overlapping rather than distinct. As a result, it became possible to treat questions of individual preference or taste as also matters properly subject to legal address. This overlap, it is important to note, was incomplete. Certain matters were only social, to be resolved solely by personal taste. Moreover, even within the region of overlap, law figured both civilly, as instrument of regulation opening hotels, restaurants, carriers, etc., to blacks on the same terms as whites, and socially, as (persuasive) opinion addressed to both whites and blacks, concerning the (correct) social status of blacks. Second, legal analysis was defined as correspondingly plural. Privileges as well as rights were capable of legal description. This addition enabled legal language to characterize conditions of hierarchy (necessary if law was to serve as a form of social address) in addition to conditions of equality. Like the civil and social settings within which law was thought to operate, the rights/privileges terminology overlapped. If the relevant feature of a situation, within a particular legal argument, was equal access, the rights reference was more likely to be used. If recognition of hierarchy was to be emphasized, privilege was the preferred term. Given the overlap, however, the seeming oxymoron "equal privileges" was probably the most precise label. Third, the term "privilege" remained equally relevant in public and private settings. Usage, however, was not simply double, as in Senate debate. Notions of public and private themselves overlapped. Hotels,

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theaters, carriers, etc., were public settings for expression of private tastes. (In the same way, the political acts of voting and amnesty involved personal judgments with public effect.) It was therefore not necessary to insist, with Sumner, that carriers or other institutions were only public; personal taste might be acknowledged, yet subject to legal address. A complex jurisprudence, to be sure: IMPERSONAL PERSONAL

i

SOCIAL t RIGHTS

SOCIAL~

I

PRIVILEGES ~ CIVIL,

C!VIL - - ~

[]

I

CIVIL

-

SOCIAL

RIIGHTS PRIVILEGES " IMPERSONAL FIGURE 1

This diagram, I think, conveys a sense of the recurring overlaps, and communicates as well the impression that no one set of distinctions (civil/soc"tal, rights/privileges, impersonal/personal) is somehow more fundamental than the others: all are always visible. The diagram is nonetheless incomplete: it includes no pictorial equivalent for the emphatic explorations of proper and improper hierarchy equally a part of the letter-writers' thinking. The incorporation of a graphic equivalent of hierarchy in the diagram shows another feature of the jurisprudence - taken for granted in the arguments of the letter-writers, both crucial and controversial once explicit. The institutions of recognition are simply given. There is no explanation as to why certain transactions, in form impersonal and

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t .•.•"

CIVIL

•

J

IMPERSONAL

FIGURE 2

civil, are to be understood as also expressions of personal taste, thereby registers of social rank, and thus privileging the participants. It all, we may think, reduces to fashion. If so, legislation guaranteeing equal privileges becomes essentially arbitrary, both because the legislative identification of transactions possessing the crucial social dimension is ungrounded, and because legislative identification cannot itself guarantee that the transactions regulated will remain socially significant. Proponents of Sumner's bill did not in fact doubt either the reality or the persistence of the hierarchical institutions they wished to open. In all probability, the legislators who voted for the Civil Rights Act of 1875, the direct descendant of the proposal debated in 1871-72, supported the measure at least in part because of their own sense of the social importance of the institutions addressed, and thus the normative force of the claim to recognition. The failure to account for hierarchy, to treat it as simply "there," emergent "somehow" from the regime of civil equality, is nonetheless important, if only after the fact. This gap defined the space within which an alternative model of legislatively protected privileges would build, a model pointing to the conclusion that the 1875 Act was unconstitutional. C. COOLEY, HOLMES, AND THE DISAPPEARANCE OF RECONSTRUCTION PRIVILEGES Thomas Cooley was the most important critic of the Civil Rights Act

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of 1875, at least from the perspective of jurisprudence, in the period between passage of the statute and the decision of the Supreme Court in 1883 that the Act was unconstitutional. 4° Notions of rights and privileges figured prominendy in his writing; in this respect, his work may be linked with the arguments of Sumner and Hill, or the analyses of the black supporters of the Civil Rights Act. It is already clear, though, that the jurisprudence implicit in the assertions of the black defenders differed considerably from that organizing senatorial debate. And Cooley's accounts, examined closely, disclose yet another variation. His version is interesting, not only because of Cooley's prominence in his own era, but because, to us, it seems only a step or so removed from the legal theory of his contemporary Oliver Wendell Holmes, a theory in which rights/privileges talk played no important part. Cooley therefore plays an important transitional role: within his assumptions, we can glimpse both Reconstruction legal theory and its disappearance. In the introductory chapters of his 1879 Treatise on the Law of Torts, Cooley stated a theory of law notable both for its intricacy and its implicit anxiety. Society, in his view, was in a state of flux - traditional patterns of behavior subject to change, conventions unreliable, individual reputations often falsely high or lowY Law did not derive in any direct way from tradition, convention, or morality; rather, autonomous and reflexive in substance, law imposed order, reasserting or adjusting its own formulations, thereby supplying cues for individuals and organizing social change. 42 It followed, for Cooley, that the procedures through which law came into being were as important as

~0 Cooley was a ubiquitous figure in post-Civil War legal life: in turn, treatisewriter, law school dean, judge, and first chairman of the Interstate Commerce Commission. For an excellent brief acccount, see S. Skowronek, supra, 153-54. See also A. Jones, The Constitutional Conservatism of Thomas Mclntyre Cooley (New York: Garland Publishing, Inc., 1987). ~J Social change for Cooley was at the same time problematic and positive, a consequence of economic development. See T. Cooley, A Treatise on the Law of Torts, pp. 1-2 (Chicago: Callaghan and Co., 1879). On reputation, see, e.g., idem 30-33. 42 For discussions of the separation of law and morality and law and tradition or convention, see idem 3-~w, 11 (common law not traditional), 14-15 (common law as source rather than product of "established usages"). On law as imposing order, see, e.g., idem 10-11, 15.

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the substance of the law. Statutory law-making, tending towards overbreadth in scope and subject to repeated revision, dramatized and thus risked increasing social uncertainty? 3 '[Judicial legislation" (Cooley's own term), by contrast, altered law in more particularized fashion, and therefore worked to obscure change, maintaining the image of social order. 44 His analytical apparatus was of a piece: Law defined the rights of individuals in their civil and political dealings.4s Civil rights, establishing the proper forms for transactions between or among individuals, were of primary importance; political rights, addressing the roles of individuals in governmental processes, were merely instrumental, means through which (however imperfectly) individuals protected their civil rights from governmental infringement.46 Rights, whether civil or political, were not absolute. But whereas political rights were matters of privilege, and therefore subject to revocation or unequal allocation at legislative discretion, true civil rights were properly limited only for obvious reasons, whether in recognition of other and conflicting civil rights, or in the interest of civil order generally.4v Indeed, for Cooley, it was precisely because recognition of rights supposed careful definitions of the limits of rights that law was able to characterize, and therefore enforce, conditions of social stability. 48 Careful definitions of rights also provided a baseline for evaluating legal change. Specifically, a critique of statutory law-making repeatedly appeared: Statutory action, unless cognizant of well-articulated common law rights, or otherwise restricted to matters dominated by considerations of public order, risked introducing elements of the political into the civil regime - transforming rights into privileges, arbitrarily allocated and in derogation of the common law rights of others. 49

The Civil Rights Act, from this perspective, was first of all a limitation of rights. "It is a part of every man's civil rights that he be 43 Seeidem 15 44 Seeidem 12-13, 15. ,s Idem 23. 46 See idem 9-10. 47 For discussion of political rights as privileges,see idem 36-37. On the limits of civil rights, see idem 33. ,s See idem 10-11, 23-24. 47 See also idem 10.

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left at liberty to refuse business relations with any person whomsoever, whether the refusal rests upon reason, o r is the result of whim, caprice, prejudice, or malice. "5° As a limitation, the Act was not as such open to criticism; indeed, Cooley acknowledged that the statutory restrictions on the freedom of c o m m o n carriers, theater operators, and others subject to the statute were similar to constraints imposed by judge-made law. 51 But given its regulatory nature, the Civil Rights Act became vulnerable to constitutional critique: police legislation of this sort was properly the business of the national government only if it addressed interstate commerce (the Act did not acknowledge this restriction) or conditioned a privilege the national government had itself granted (plainly not the case since "business relations" were "civil rights')Y But what of constitutional grants of power to the national government to guarantee due process of law and equal protection of the laws? And what of the rights affirmatively defined by the statute the various rights of equal access? For Cooley, these questions did not arise. Rights originating in limitations of other rights (as opposed to rights limited by the existence of other rights) were treated as matters of privilege akin to political rights, accidents of regulation and therefore not rights of the sort entitled to overriding acknowledgement and protection? 3 The statutory protections, therefore, could not be seen as matters of due process or equal protection? 4 50 Idem 278. 51 Idem 284-85. See also Cooley, 'Limits to State Control of Private Business', PrincetonReview 1 (n.s.)233, 254--55 (1878). s2 See A Treatiseon the Law of Torts, supra, at 285. 53 In his 'Limits to State Control of Private Business', supra, Cooley developed at length an analysis designed to show that businesses were properly subject to government regulation only when a given business was a matter of privilege and not right. See idem 247-56. Cooley's denlonsrrarion that obligations seemingly in derogation of property rights were outgrowths of government-conferred privileges is notable, among other reasons, for his consistent refusal to refer to the beneficiaries of government regulations as holders of rights. Government regulation of common carriers, for example, worked to "secure impartiality in the dealings of these persons with the public," idem 254 - there was no reference to the fights of members of the public to sue common carriers; from Cooley's perspective, the issue was one between government and carrier; presumably, a customer's private action was simply a means of achieving public policy. See also idem 253 ("the public had no privilege of dealing with others"). 54 Justice Bradley's majority opinion in the Civil Rights Cases operated within a

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theoretical framework that, in important respects, closely resembled Cooley's. The Supreme Court's "state action" analysis of the fourteenth amendment is well-known: [C]ivil rights, s u c h a s a r e guaranteed by the constitution against state aggression, cannot be impaired by the wrongful acts of individuals, unsupported by state authority in the shape of laws, customs, or judicial or executive proceedings. The wrongful act of an individual, unsupported by any such authority, is simply a private wrong, or a crime of that individual; an invasion of the rights of the injured party, it is true, whether they affect his person, his property, or his reputation; but if not sanctioned in some way by the state, or not done under state authority, his rights remain in full force, and may presmnably be vindicated by resort to the laws of the state for redress.

109 U.S., 17. Notably, Bradley explicitly sidestepped the question of whether the rights protected by the Civil Rights Act were in fact "rights" at all. See idem 19. See also idem 24. He also implicitly assumed at this point that action by one individual adverse to the interests of another was an infringement of the second individual's common law rights - otherwise, "resort to the laws of the state" would not yield "redress" unless the state had affirmatively committed itself, through legislation, to the protection of interests not encompassed by common law. With respect to these latter interests at least, legislative inaction would be decisive, the "exhaustion of remedies" dimension in Bradley's "state action" rhetoric inapposite, and the question squarely put whether constitutional scrutiny extended to governmental failures to act. Which interests not recognized as rights at common law triggered constitutional scrutiny of state failures to act? Bradley next concluded that the interests of blacks denied access to the instim6ons protected by the Civil Rights Act were without legal (and therefore constitutional) significance except insofar as such interests were explicitly protected by state law. The question was one concerning the scope of the thirteenth amendment: It would be running the slavery argument into the ground to make it apply to every act of discrimination which a person may see fit to make as to the guests he will entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theater, or deal with in other matters of intercourse or business. Innkeepers and public carriers, by the laws of all the states, so far as we are aware, are bound, to the extent of their facilities, to furnish proper accommodation to all unobjectionable persons who in good faith apply for them. If the laws themselves make any unjust discrimination, amenable to the prohibitions of the fourteenth amendment, congress has full power to afford a remedy under that amendment and in accordance with it . . . . There were thousands of free colored people in this country before the abolition of slavery . . . ; yet no one, at that time, thought that it was any invasion of their personal status as freemen because they were not admitted to all the privileges enjoyed by white citizens, or because they were subjected to discriminations in the enjoyment of accommodations in inns, public conveyances, and places of amusement.

Idem 24-25. The thirteenth amendment, Bradley contended, did not guarantee equal privileges; privileges were artifacts of legal regulation, and therefore subject to constitutional protection only if legal regulation itself took an unconstitutional

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Cooley, it should be clear, proceeded from some of the same assumptions which had organized the colloquy of Sumner and Hill in 1871. The distinction between rights and privileges, and the differentiation of civil and political realms, are obvious links. And yet the absence in Cooley's work of any use of the category of the social, central in the argument dividing Sumner and Hill, is perhaps more significant. In one sense, Cooley, Sumner and Hill all agreed: matters purely social were not legally pertinent. Sumner and Hill, however, treated social relations as nonetheless real - an articulable category as definite in reference as the civil or the political, and therefore as available a starting point for argument. Sumner and Hill supposed a degree of constancy or fixity; posited a world which, in important respects, law could take as given. Cooley differed: in a state of flux, law imposed order, and thus (in the end) could regard only itself as backdrop. Institutional sources of social expectations and hierarchy such as family and church - were not legally cognizable (Cooley is explicit in this regard); only individuals and individual acts were relevant. Reputation (social standing) was problematic and in need of legal security: for Cooley, the law of defamation was an important topic. Like the arguments of black defenders of the Civil Rights Act, Cooley's critique depicted law in action, an instrument of reform. But where defenders saw social hierarchy failing to hold true to its premises, Cooley glimpsed change becoming chaos. Law, therefore, worked not to perfect an already given social order, but to constitute (or reconstitute) itself as order. The autonomy that Cooley's jurisprudence attributed to law, however, complicated and ultimately undermined the rights/privileges distinctions his analysis so frequently form, judged in the light of other constitutional provisions. Absent pertinent legal regulation by the states, there was no basis for constitutional (and therefore congressional) intervention. Given legal regulation, fourteenth amendment "state action" limits became relevant, justifiable in narrow "exhaustion of remedies" terms. The Civil Rights Cases demand a more careful analysis than I have undertaken

here. But the links between Justice Bradley's opinion and Cooley's discussion should be apparent. See also Cocke, 'Constitutionality of the Civil Rights Law', SouthernLawReview I (n.s.)193,205--06 (1875).

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invoked. The origin of rights, of necessity, lay within the legal system itselff, Cooley posited no natural law or other external source of first principles. What, then, accounted for the priority of rights - for the importance Cooley's jurisprudence attached to the protection of rights? By and large, Cooley did not defend the substance of rights; rather, treating the idea of order as his normative ground, he criticized infringements of rights which were not obviously defensible as protections of other rights or of public order, and in particular closely scrutinized grants of special privileges, or regulations of rights which transformed rights into privileges. The reasons for limiting rights, and not the justifications for their recognition, served as the usual starting point for his analysis. At one level at least, therefore, Cooley's analysis reveals a suprising and self-subverting affinity with the thinking of Oliver Wendell Holmes. In The Common Law and other works of the 1870s and 1880s, Holmes repeatedly depicted rights as originating in historical circumstances presently irrelevant, reanalyzing the common law from a perspective giving priority to notions of obligation or duty reflecting the requirements of contemporary society and therefore limiting individual libertyY Rights of individuals, for Holmes (like Bentham and Austin, for example), were consequences, and thus artifacts, of duties imposed on other individuals - rights were in no sense starting points within his scheme? 6 There was nothing in the idea of duty, moreover, that carried with it any capacity to order or moderate social change. Holmes accepted, indeed defended, repeated legislative intervention? 7 All that was left of legal autonomy was the Holmesian s~ See, e.g., O. W. Holmes, The Common Law, (M. Howe ed. Boston: Little, Brown and Co., 1963) pp. 31, 160-62, 182-83 (explorations of anachronism); idem pp. 31-32, 167, 168 (origin of law in "considerations of what is expedient for the community concerned"). s0 Bentham's views are summarized in H. L A. Hart, Essays on Bentham, (Oxford: Clarendon Press 1982) pp. 127-93. For Austin's account, see, e.g., J. Austin, Lectures on Jurisprudence, (R. Campbell, ed. London: John Murray, 1913; Reprint, St. Claire Shores,MI: ScholarlyPress, 1977)pp. 192-93. ~7 "All that can be expected from modern improvements is that legislation should easily and quickly, yet not too quickly, modify itself in accordance with the will of the de facto supreme power in the community, and that the spread of

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notion of objectivity, a way of distancing law from moral arguments grounded in state of mind, but unconnected with any scheme of careful definition of the sort Cooley sought to implement. Indeed, to Cooley, Holmes must have appeared to be an apologist for politics rights, seemingly, became privileges. For Holmes, in contrast, the relationship of rights and privileges was simply not a relevant question. Legal analysis was chiefly a matter of identifying duties, s8 In this respect at least, Holmes foreshadowed Hohfeld, who distinguished rights and privileges, but treated both (in different ways) as derivative of duties. 59 Hohfeld, as well, explicitly rejected the idea that privileges in some sense brought about or acknowledged inequality. "In must be evident also, that whenever the privilege does exist, it is not special in the sense of arising from a

an educated sympathy should reduce the sacrifice of minorities to a minimum." 'Summary of Events, Great Britain', American Law Review 7, 582 (1873), reprinted as Holmes, 'Herbert Spencer: Legislation and Empiricism' in O. W. Holmes, Book Notices and UncollectedLetters and Papers, (H. Schriver ed. New York: Central Book Co., 1936)p. 107. • 58 Legal duties . .. come before legal rights. . . . IT]he direct working of the law is to limit freedom of action or choice on the part of a greater or less number of persons in certain specified ways; while the power of removing or enforcing this limitation which is generally confided to certain other private persons, or, in other words, a right corresponding to the burden, is not a necessary or universal correlative.

The Common Law, supra, p. 173. s9 Hohfeld's own presentation not only defined rights as correlatives of duties and privileges as opposites of duties, but also (albeit implicitly) assumed that the question of whether fights or privileges existed was one answered by first inquiring as to the distribution of duties. See W. Hohfeld, Fundamental Legal Conceptions, (W. Cook ed. New Haven: Yale University Press, 1919), pp. 36-38, 38-39, 45-46. Hohfeld's own practice notwithstanding, his system of correlatives and opposites does not, in an of itself, require that analysis of duties be given priority (although a hard-to-manage richness may result, and therefore any user in practice may find it difficult not to emphasize one or more terms). See Allen & Saxon, 'Analysis of the Logical Structure of Legal Rules by a Modernized and Formalized Version of Hohfeld Fundamental Legal Conceptions', in A. A. Martino & F. S. Natali, (eds.), Automated Analysis of Legal Texts, (New Yorlc North-Holland 1986) pp. 385-450.

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special law, or of being conferred as a special favor on a particular individual. The same privilege would exist, by virtue of general rules, for any person whatever under similar circumstances"? ° The jurisprudence of the Civil Rights Act - the aspirations and concerns associated with the idea of privilege as distinction - had disappeared. D. PRIVILEGES AS MODELS OF PERMISSIONS AND PERSONALITY Reconstruction legal theory, it should be clear by this point, is not entirely %urs2 Its conceptual apparatus, whether in the variants invoked by critics or defenders of the Civil Rights Act of 1875, does not translate straightforwardly into terms usual to recent analytic jurisprudence. Certain features of the nineteenth century theory, however, acquire greater prominence when reformulated within modern vocabularies. In particular, it becomes possible to explore more thoroughly the structure of Cooley's arguments (and also the structure's instability), as well as the theory of personality implicit in the assertions of the Act's black defenders.

1. The importance of sequence: Cooley's arguments are the most accessible. Indeed, proceeding after the fashion of Bulygin,6~ it is relatively easy to construct sequences of rule statements that clearly display the assumptions organizing Cooley's critique of the Civil Rights Act. The appropriate starting point is the idea of a "special privilege" - a restricted grant in derogation of common right: Only A, B, and C are permitted [the power to contract] [with anyone[ [with respect to X]. A privilege of this sort, contemporaries, created important to understand, by legislative grants of

it seemed to Cooley and to many of his the greatest risk of legislative abuse. It is however, that the normative concerns raised special privileges are not captured in the

60 W. Hohfeld, supra, p. 46. 6J Bulygin, 'Permissive Norms and Normative Systems', in Martino and Natali (eds.),supra, p. 211.

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summary formulation itself. Instead, a grant of privilege derived its problematic or non-problematic status from the nature of the revision it worked in the prior legal regime. Thus, if the original situation were To: No one is permitted [the power to contract] [with anyone] [with respect to

x] Cooley would not have regarded as controversial Tj: Only A, B, and C are permitted. . . . But if initially To: Everyone is permitted... for Cooley the grant ofprivi!ege involved two steps Tj: All are prohibited...

T2: OnlyA, B, and C are permitted... and the reasons for the blanket prohibition became crucial - in order to evaluate not only the justification for the prohibition itself but the merits of the sub,sequent restricted permission. The analysis of the Civil Rights Act of 1875, as Cooley framed it, involved a similar progression. Here also, summary description of the privilege conferred All persons (regardless of race) possessing characteristics X, Y, and Z are permitted [the power to require formation of a contract] [with A, B, C . . . . (common carriers, hotel operators, theater operators, etc.)] [with respect to service] does not disclose Cooley's normative concerns. In this instance, the explanatory sequence was first formulated from the perspective of the carriers and hotel and theater operators. Thus, the initial c o m m o n law rule To: Everyone is permitted [the power to refuse to contract] [with anyone] [with respect to anything] was depicted as in effect legislatively suspended T1: No one is permitted [the power to refuse to contract] [with anyone] [with respect to anything]

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partially reinstated T;: Everyone except A, B, C. . . . (common carriers, hotel operators, theater operators, etc.) is permitted [the power to refuse to contract] [with anyone] [with respect to anything] and partially replaced A, B, C .... are prohibited [the power to refuse to contract] [with persons possessing characteristicsX, Y, and Z] [with respect to service] T2"."

T2': A, B, C. . . . are permitted [the power to refuse to contract] [with persons not possessingcharacteristicsX, Y, and Z] [with respect to service] T~": A, B, C. . . . are permitted [the power to refuse to contract] [with anyone] [with respect to matters other than service]. The privilege granted persons possessing characteristics X, Y, and Z, we can see, is simply a conclusory formulation (obtained by reversing perspective) of the T 2 complex replacing the original common law rule. Thus, the protections afforded by the Civil Rights Act of 1875, like %pecial privileges," appear within the model as resulting from legislative abrogation of common law rights. Given the priority Cooley attributed to common law rights, the justification for the legislative denial becomes the focus for inquiry, the interests of the possessors of the privilege counting little. But if Cooley's emphases are captured, the vulnerability of his assertion of the priority of the common law is also disclosed - as well as the means Cooley uses to limit that vulnerability. The priority of the common law is, within the terms we are employing, a function of Sequence. Suppose, to take the simple case, a legislative grant of special privileges was represented by the following progression: T_,: No one is permitted... To: Everyone is permitted... TI: All are prohibited... T2: Only A, B, and C are permitted... For Cooley, this sequence would presumably be simply a somewhat more complicated version of

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To: No one is permitted...

Tj: Only A, B, and C are permitted... and therefore noncontroversial. But why cannot a statement like T_~ be added at the start of all sequences which Cooley begins with a statement of common law rights? Cooley, after all, does not portray common law rights as originating in morality or natural law, or in unchanging custom; he depicts contemporary common law in entirely positivist terms. It is, however, an institutionally complex positivism, and it is this complexity which Cooley uses to secure the integrity of his sequences.62 He supposes three sources of law: common law, statutory enactment, and constitution. In principle, statutes may alter common law rules but must respect constitutional requirements. Suppose, however, that constitutional law protects common law rights either directly (as Cooley seemed to think due process or equal protection guarantees may) or indirectly, by limiting legislative authority to address certain questions regulated by common law (the case of the U.S. Congress, but not state legislatures, within the terms of his analysis of the Civil Rights Act.) A legislature or court could treat common law as other than first in a sequence only by disregarding or rereading the constitution. Cooley's positivism, we may conclude, protected the priority of the common law not by proving that priority, but by displacing the question, reformulating it in constitutional terms. Constitutional law thus becomes (as it was in fact in the late nineteenth and early twentieth centuries) the setting for debate about revisions in American law, and the terms of argument correspondingly alter, emphasizing more the generalized requirements of political and civil order, and less .the merits or demerits of specific proposals.

2. Reconstruction self-fashioning: The arguments of Sumner and Hill are more difficult to translate. Their competing classifications of rights and privileges both proceeded by separating the categories of the civil and the social, and both restated those categories in terms of a further 62 See also Bulygin,supra, pp. 213-15.

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distinction between choices of a entirely personal sort and choices subject to law. The disagreement between the two, however intense, presented itself as narrow. For Hill, statutory guarantees of racially equal access to carriers, hotels, theaters, etc., compelled associations properly treated as voluntary; Sumner thought that his bill merely regulated gatherings already so public, and thus outside the control of any given individual, that personal associations ceased to be matters of choice once the individual decided to use a carrier, or patronize a hotel or theater. What did it mean, or what shonld it have meant, to ride in a first-class railroad compartment, dine in a hotel restaurant, or attend a theater in mid-nineteenth century America? If this was the relevant question, how might jurisprudence illuminate it? Black supporters of the Civil Rights Act, I have suggested, rearranged the terms of the debate between Sumner and Hill, overlapping the categories of rights and privileges, civil and social, and personal and public. Black supporters, we have also seen, frequently resorted to biographical or autobiographical narrative in order to explain their endorsements: as though (often in fact) answering the question "What would passage of the Civil Rights Act mean for me (or us)?" This explicitly relative perspective, like the use of overlapping categories, marked a departure from the mode of analysis shared by Sumner and Hill, who appeared to assume that the institutions and decisions regulated by the Act were civil or social, or public or personal, from everyone's perspective. New questions therefore emerge: Was the point of view of the black supporters in fact different? Does this difference account for the distinctive features of their defense of the Civil Rights Act? We might expect black Americans to have adopted a perspective distinctly their own. In obvious and crucial ways, their lives were extraordinary. Before the Civil War they were either slaves, escaped or emancipated slaves, or at risk of slavery or re-enslavement. By 1872 they were plainly "not-slaves'; in many respects, at least as a matter of law, civilly and politically indistinguishable from other Americans? 3 63 The status of free blacks before the Civil War, and the degree to which that status was secure and the civil rights of free blacks protected, are important topics that I do not discuss. It may be that I therefore obscure an essential

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This change in status, however, was neither fully defined nor secure. White hostility, persistent, organized, and frequently violent, threatened counter-revolution. Black Americans knew "a new birth of freedom," but at the same time confronted the renewed prospect of "social death," of re-enslavement however formally disguised. The metaphors of birth and death, we may suspect, are in this context as fundamental as they are familiar. For the crucial issue, in legal terms, was personality - the summation of the capacities "not-slaves" would be understood to possess. Separation of the civil, political, and social dimensions of life fixed a context within which alternative conceptions of legal personality might be elaborated, specifying the powers their legal status afforded black Americans, or the limits to that which legal status made possible. Legal personality described an exterior, the outlines of an individual's dealings with others. It would not have been surprising, however, if black Americans, their lives divided and threatened with further division, treated the legal characterization of who they were as a cue, a relevant datum for their own interior accounts - their subjective identities. As we have seen, the arguments of black defenders of the Civil Rights Act indicate that such an overlap of exterior and interior accounts at least sometimes occurred? 4 continuity, that the status of all blacks after the Civil War was simply the status free blacks held before the war. In Southern law (at least outside Louisiana), however, free blacks before the war seem not to have been viewed as possessing "rights" as such, but rather "privileges"; the risk of being re-labeled "slave" also seems to have been real. See M. Tushnet, supra, pp. 139-56. ~ Concerning black efforts to construct self-conceptions in light of the difficulties occasioned by slavery, see, e.g., H. L. Gates, Jr., 'Frederick Douglass and the Language of the Self', in Figures in Black: Words, Signs and the "Racial" Self, (NY: Oxford University Press, 1987), pp. 98-124. On black self-conceptions formulated in the early twentieth century, see Gates, 'The Trope of a New Negro and the Reconstruction of the Image of the Black', Representations 24, pp. 129--55 (1988). Gates does not discuss the Reconstruction era per se because of an absence of appropriately literary texts. See idem p. 131. In a sense, in this essay I treat the Civil Rights Act of 1875 and the surrounding debate as equivalents of the materials with which Gates works. The idea of texts as sites for self-construction is, of course, a familiar one in literary studies. See, e.g., S. Greenblatt, Renaissance Self-Fashioning: From More to Shakespeare (Chicago: University of Chicago Press, 1980) (the source, obviously, for the title of this section).

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Reconstruction preoccuption with personality suggests investigations familiar to readers of late twentieth century philosophy. Indeed, the situation in which black supporters of the Civil Rights Act found themselves seems to supply a context in which, for example, some implications of Derek Parfit's critique of concepts of personal identity or continuity may be explored? s We may plausibly suppose that "not-slaves," experiencing emancipation as a sharp break in their lives, and confronting as well the prospect of another such transition, would give great weight to some analog of Par fit's R, summarizing the psychological links constituting all that remains meaningful in the concept of self once that concept, as such, is set aside? 6 In Reasons and Persons, R is a function of psychological continuity (overlap of subjective experience across divisions) and psychological connection (equivalence of tastes, values, etc., across divisions). There is no priority as between continuity and connection? 7 R, however, does depend upon the individuality of continuities and connections: Parfit asserts that we do not experience ourselves as types? 8 In the Reconstruction setting, we might regard R as somewhat differently specified, at least for blacks who perceived their lives as clearly divided. Psychological continuity, it may be assumed, was not the issue. Connection, though, would have been more problematic. Even if, as slaves or free persons living in a slave society, blacks refused to adopt as their own the attitude of subservience "officially" fixed as appropriate, after emancipation free blacks probably experienced important shifts in values or tastes. Change occurred not so much because previously-held beliefs altered, but because (or to the extent that) new circumstances suggested or supposed responses which were subjectively unprecedented. Specifically, blacks (whether free or slave before the Civil War) entered what were, for them, new political, economic, and social environments in which, most obviously, encouno5 See generally D. Parfit, Reasons and Persons, (Oxford: Clarendon Press, 1984), pp. 199-347. c,o For present purposes, it is not necessary to follow Parfit all the way: a Reconstruction variant of R would remain relevant even if "not-slaves" valued it precisely because for them self was a deeper further fact. o7 See,e.g.,idem 274-80. ~8 Idem 293-97.

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ters with white Americans took (or included the possibility of taking) forms dramatically different from those of the ancien regime. In these contexts at least, a sense of connection was work in progress, an accumulation of relationships not yet dense enough to be taken for granted. Connection, rather than continuity, might therefore acquire a relative priority. By contrast, since the outlines of encounters were as much in question as the details, the distinction Parfit draws between type and instance would appear to blur. Whether the individualizing features of relationships are thought of as conscious variations of (improvisations upon) standard elements, or merely chance results of the repetition of behavioral forms, if the type itself is unresolved, persons in the circumstances of Reconstruction blacks might plausibly seek to fix typical contours as part of the connection-creating process itself. A politics/jurisprudence emerges:

First, it is not difficult to account for the differing perspectives of Sumner and Hill, and the black supporters of the Civil Rights Act. Sumner and Hill drew a strong distinction between the typical and the individual, agreeing that law might appropriately define and enforce routine encounters but not individualized dealings. They agreed in classifying political and economic activities (voting, contracting, buying and selling) as routine, and in labeling some social activities as personal (entertaining in one's home), but disagreed, we have seen, in their assessments of the character of the forms of conduct which were the subjects of the Civil Rights Act. Black supporters of the Act, it may be, would have been quicker to note the individualized as well as typical aspects of political and economic behavior; it is clear that they understood the social encounters which would be legislatively regulated to be routine but also occasions likely to test (and therefore help define) the individual's reconstructed self. Second, on the assumption that black supporters were chiefly concerned with the need to secure their new identity, congressional revisions in the scope of the civil rights bill, in the period between 1871 and its enactment in 1875, become to a large degree noncontroversial. The relevant social institutions were those which, in the course of limiting and granting access, created what we would today

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call a "positional good. "69 Access signaled possession by favored individuals of attributes valued both by the individual and society at large. Church membership and cemetary admission, subject to regulation in Sumner's original proposal, would seem to have been at most intermittent registers of "position," especially in (even in mid-nineteenth century) a religiously diverse society. TM Educafon in c o m m o n schools, a part of the bill until just before passage, was a more difficult case. Some black school officials argued that the education of children in racially separate schools "tends to beget and intensify" racial prejudice "in their young minds, and so to perpetuate it to future generations." 71 By another account, however, the schools provision was secondary, "well nigh valueless" unless "colored men" were "recognized and treated legally and socially according to their worth. "v2 It is clear, at the least, that Reconstruction public schools were not themselves "positional"; supporters of the Civil Rights Act were, it appears, concerned mostly with ratifying or protecting a conception of themselves that recognized their accomplishments as adults. Education was an important concern - as a precondition of success. But unlike first class carriers, hotels, and theaters, schools did not (at least then) certify social status. 73 09 See generally Hollis, 'Positional Goods', in A. P. Griffiths, (ed.) PhiIosopky and Practice,(New York: Cambridge University Press, 1985), p. 97. 7o Among the writers expressing support for Sumner's bill, those who endorse the inclusion of churches and cemeteries did so (it appears from their letters) precisely because they believed that status was indeed at stake. See Appendix, III, 2. vl Idem, II, 4. v2 Idem, II, 6. See also E. Foner, supra, p. 369. v3 The claim here is not that blacks were indifferent to education. Clearly, the opposite was the case: "Perhaps the most striking illustration of the ffeedmen's quest for self-improvement was their seemingly unquenchable thirst for education." Idem 96. Equally obviously, integration of public schools was, for whites, a highly charged question. See, e.g., idem 550, 552; W. Gillette, supra, pp. 204-06. See also Kelly, supra, pp. 553-54, 558-59. It may be, though, that schools, however important to both blacks and whites, raised issues different in kind from those raised by questions of legal regulation of public social life. Specifically, although blacks perceived racial segregation of schools as proclaiming their inferiority, they also regarded control over their own schools, one consequence of

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Third, it should be apparent that, within the model worked out here, the jurisprudence of the black supporters of the Civil Rights Act, although originating in the particular circumstances of post-slavery, appears to draw upon notions also important for other legal theorists of the time. The idea that law takes as its domain the typical forms of action within society is the cousin, at least, of Holmesian objectivity. The Common Law, as we all know, repeatedly insisted that such legal formulas as "the reasonable man," "meeting of the minds," and "intent" were references to standard modes of behavior and not conclusions to be drawn through inquiry into the states of mind of particular individuals. To be sure, Holmes seemed to assume that law took social patterns as given, that change occurred out of view of legal process. Supporters of the Civil Rights Act, in contrast, emphatically insisted that society, as an aggregate of individuals, was as subject to legal reconstruction as the individual free slaves themselves; however slowly in certain cases, individuals acknowledged the message of the law, adjusting their own expectations and values. As a result, Cooley's segregation, as itself desirable. See E. Foner, supra, p. 367. Like churches, schools worked to construct the image of herself or himself that the individual took into society; introducing society into schools (or churches) extended the field of contest, universalizing the question of status, therefore depriving blacks of an uncontested point of departure, an opportunity to formulate an initial conception of themselves, in advance of social conflict. Cf. idem 88-95 (discussing rise and significance of black churches during Reconstruction). Of course, because schools (unlike churches) were publicly-funded, and seen to supply resources for political, civil, and social life whose quantity and quality were dependent upon the degree of government support for black schools, school could not be grouped easily with family and church as pre-public. Schools, nonetheless, were thought to be (mostly) instrumentally important; although questions of status could not be kept entirely outside schools, education was understood to assist the individual in achieving later social distinction, not itself confer distinction. Cf. P. Bourdieu, Distinction: A Social Critique of the Judgement of Taste (Cambridge: Harvard University Press, 1984) pp. 22-28 (describing society in which education is itself a principal source of attributes of high status). An injustice especially acute, therefore, resulted from denying an individual entry to social institutions serving as registers of distinction when the individual had seemingly qualified for entry, and had been educated to believe entry was indeed possible. See Appendix, II, 6.

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belief that law imposed order upon society in flux may appear to be more apposite. But plainly, supporters of the Civil Rights Act saw order within society. The issue was one of interpretation: whether the exclusion of blacks from access to certain institutions was to be understood as anomalous, an imperfection in emerging order justifying legal intervention, or rather itself a constituent element of the social pattern. Fourth, it is easy, therefore, to appreciate the sense of urgency evident in the arguments of the Act's defenders. The impact of legislative intervention was a function of the degree to which exclusion of blacks from positional institutions remained an ambiguous phenomenon. If it was already widely understood that race was one of the inextricable attributes of status, legislation founded on the opposite assumption might lose plausibility to the point of becoming ineffectual. (This seems, in fact, to have been the fate of the Civil Rights Act.) It is also possible to glimpse what may have been the appeal of the Act for Republican legislators, who incurred real political costs in pressing for passage in the pre-election 1874 Congress, and who, even so, voted through the Act in the lame-duck 1875 session.74 A sense of self rebuilt was not uniquely the experience of black Americans, even if black Americans as a group had undergone a transformation unlike that of any other group. Particular individuals knew sharp divisions in their lives, transitions ending for some in diminished conceptions of their own possibilities and worth, but yielding for others emergence into a world corroborating heightened self-value. If we assume that a substantial number of legislators saw themselves as among the latter group, the claim of black advocates of the Civil Rights Act acquired an attractive familiarity. The Act focused legislative attention on the predicament of the most successful of black Americans, individuals whose experience paralleled that of legislators who had also known the status of new arrivals, who had also for a first time sought entrance to the institutions subject to the statute. 75 Self-transformation may have been more than simply a fact in 74 See generally W. Gillette, supra, pp. 236-79; Kelly, supra, pp. 555--62. v5 See A. Bogue, The Earnest Men: Republicans of the Civil War Senate (Ithaca: Coruell University Press, 1981),pp. 50-1.

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c o m m o n encouraging a sense o f empathy. T h e possibility o f selft r a n s f o r m a t i o n was f r o m the start a recurring t h e m e in Republican rhetoric, celebrated (for example) in the Lincoln myth. 76 Its a c k n o w l e d g e m e n t and protection, and therefore its legal inscription, a m o u n t e d to an assertion o f political identity or continuity. T h e j u r i s p r u d e n c e o f privileges underlying the Civil Rights Act, in effect, b e c a m e " c o m m o n ground". Precisely at a p o i n t o f transition, a m o m e n t w h e n w h a t had seemed to be central and shared c o m m i t m e n t s were p u t in question, it is hardly surprising that Republican legislators, m u c h like black

76 See E. Foner, Free Soil, Free Labor, Free Men, (New York: Oxford University Press, 1970), pp. 11-18. On Lincoln, see tL Hofstadter, 'Abraham Lincoln and the Self-Made Myth', in The American Political Tradition (New York: Vintage Books, 1948,) p. 93. Lincoln himself used the notion of "equal privileges" in characterizing and generalizing his own career. Thus, in 1864, in remarks addressed to soldiers, he declared: I happen, temporarily, to occupy this White House. I am a living witness that any one of your children may look to come here as my father's child has. It is in order that each one of you may have, through this free governmentwhich we have enjoyed, an open field and a fair chance for your industry, enterprise and intelligence; that you may all have equal privilegesin the race of life, with all its desirable human aspirations.It is for this the struggle should be maintained, that we may not lose our birthright.... The nation is worth fightingfor, to securesuch an inestimablejewel.

A. Lincoln, Selected Speeches, Messages, and Letters, fT. H. Williams ed., Packard and Co., Chicago: 1943), pp. 247-48. It is easy to characterize Lincoln as simply invoking the familiar idea of equal opportunity, and ignore the use of the term "privileges" in his comments; indeed, at least one commentator has used these remarks to illustrate the proposition that "[n]othing seems more obvious to us than that aristocratic privileges ought not to exist in these United States." Dannhauser, 'Some Thoughts on Liberty, Equality, and Tocqueville's Democracy in America', Social Philosophy & Policy 2, 141, 150 (1984); see idem 151. Plainly, though, there is an element of inequality in Lincoln's statements: he is President, but that opportunity (he assumes) will not be open to his audience, only their children. See idem. Perhaps Lincoln's assumption reflected an implicit (for his audience undoubtedly disturbing) assessment as to the likelihood of soldiers surviving the war unimpaired. But it is also apparent, from the repeated use of the race metaphor, and the use of office as exemplar of the opportunity available, that what was equally available was a chance at earned distinction or honor summarized precisely, indeed lawyerly, in the term "privileges."

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supporters o f the bill, would see the Civil Rights Act o f 1875 as the legal equivalent o f a social register - an official assertion o f w h o they would have themselves seen to be. School of Law, University of Miami, Coral Gables, Florida 33124, U.S.A.

APPENDIX TABLE I Statements criticizing civil rights jurisprudence as it stood absent the adoption of Sumner's supplementary civil rights bill

Assertionsof incompleteness 1. "Sir, until [the civil rights bill] is passed all our so-called 'free rights' are myth. They are simply 'airy bubbles'." l 2. Passage of supplemental civil rights bill needed "to isolate and crystallize beyond disturbance, dispute, or recall the rights then acquired"? 3. " . . . which bill proposes to abolish all distinction of caste, and give perfect equality in all public institution and

common carriers . . . . [O]ur wives, daughters, ministers, and legislators are the subjects of daily insults and outrage for the want of legal protection on the public highways, and other public corporations and institutions, and will be so long as we are denied the full rights of citizenship . . . . [W]e are invariably denied a meal of victuals by the railroad eating-houses, and when traveling are often made sick from hunger'?

The claim to both rightsandprivileges 4. Characterizing Sumner's bill as "making it a penal offense for any hotel, steamboat, railroad company, or any keeper of any public place of amusement or entertainment, to deny any colored person any right or privilege granted to any white person under the same circumstances . . . . " "Resolved, That what we demand of our country as citizens of the United States is equality of rights under its laws". 4

5. "One after another have the fetters that bound to a level with the brute been svcicken off, till now all that is left to be done in the year 1872 to complete his full freedom, is the abolition by law of all the distinctions and discriminations that deny to him rights and privileges invoked by other citizens...,.5 6. "If it is necessary, from policy, to enfranchise all rebels, then the time is

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Table I (Continued) come when principle should assert itself in favor of the equal privileges which you demand for my race"? 7. "It is our judgment that the best interests of the colored people of this capital, and not theirs alone, but those of all classes, require the abrogation of all laws and institutions creating or tending to perpetuate distinctions based on color, and the enactment in their stead of such provisions as shall secure equal privileges to all classes of citizens".7 8. "We do not wish to force ourselves into American society unwelcomed.

Social equality seems to be the bugbear at which American justice is frightened, and the colored man deriled many public privileges accorded to other American citizens. [¶] What we ask now, is simply equal public privileges, and that the social question be allowed to regulate itself without the interference of the law of any States. We hope that bill will be so framed that the several States of the Union shall be prohibited from passing or enforcing a statute which makes invidious discriminations on account of color. We desire social rights, so far as they are affected by law at present"?

TABLE II Law and society: Law as aj~/'m

1. "For, in whatever direction we go, whether it be in public places of amusement, in the street cars, upon the railroad, in the hotel, or in the wayside inn, we encounter the invidious distinction of caste and oligarchy . . . . We are weary of being consumed by this moloch Caste; we are weary of being hunted down by the ghost of the defunct system of slavery; we are weary of being reminded of servitude more galling than Egyptian bondage; we are weary of being treated as outcasts and strangers in the land of our nativity,

ofsocialaddress and the home of our fathers; and we ask, as it is our right, that these odious discriminations shall cease"? 2. "We further urge the passage of this bill because we believe that the sooner the legal status of all classes in the country is completely settled, the better it will be for all parties concerned . . . . Let it be distinctly understood that the amendments and their legitimate results are finalities, that there is to be no distinction on account of race, color, or previous condition of servitude in reality as well

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TableII (Continued) as name. Then, and not till then, can we confidently look for a cessation of a system of outrageous treatment toward a class which is a disgrace to humanity and the American people"? ° 3. "The restoration of our political franchise and acknowledgment of our citizenship by the supreme law of the land should alone have placed us beyond the reach of the tyrants who still linger among us, the living landmark of slavery's degrading entailments; but alas, it is not so! We now ask the interposition of positive law to prevent the daily outrages on the lawabiding colored citizen. We ask this, because in performing our duties, fulfilling our obligations, or seeking enjoyment, we are ill-treated, insulted, and common civility denied us. The anomalous position we occupy is cruelly and needlessly degrading. Equal in the law, equal with the ballot, equally taxed, and bearing equally all the responsibilities of the citizen, we are stripped of the habiliments declared self-evident by the fathers through a defiant, unlawful, unchristian sentiment. [¶] We ask the passage of this bill that the spirit and letter of the law may be in strict conformity;, that the rights, privileges, and immunities conferred on all citizens b y the statute shall not be denied to us by the base practices of the disloyal in sentiment; that the sacred pledges of the Constitution of the United States to maintain us in freedom impartially,

in the enjoyment of all rights equally, shall not be annulled by the baleful sentiment of secession and slavery exercised by petty despots who defy the law as it now exists, and outrage colored citizens with impunity") ~ 4. "The laws creating the present system of separate schools of colored children in this District were enacted as a temporary expedient to meet a condition of things which has now passed away. That they recognize and tend to perpetuate a cruel, unreasonable, and unchristian prejudice, which has been and is the source of untold wrong and injustice to that class of the community which we represent, is ample reason for their modification. The experience of this community for the last few years has fully demonstrated that the association of different races in their daily occupations and civic duties is as consistent with the general convenience as it is with justice. And custom is now fully reconciled at this capital to the seating side by side of white and colored people in the railway car, the jury-box, the municipal and Government offices, in the city councils, and even in the Halls of the two Houses of Congress. Yet while the fathers may sit together in those high places of honor and trust, the children are required by law to be educated apart . . . . [¶] Children, naturally, are not affected by this prejudice of race or color. To educate them in separate schools tends to beget

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Table II (Continued) and intensify it in their young minds, and so to perpetuate it to future generations. If it is the intention of the United States that these children shall become citizens in fact, equal before the law with all others, why train them to recognize these unjust and impolitic distinctions? . . . [¶] Objection to the step here recommended has been made on the ground of expediency. Every advanced step in the same direction has been opposed on the same superficial allegation. [¶] The right of the colored man to ride in the railway car, to cast the ballot, to sit on

the jury, to hold office, and even to bear arms in defense of his country, has encountered the same objection. We are confident that it will prove of no greater weight in the present case than it has in the others. There is no argument for equality at the ballotbox, in the cars, or on the jury, in holding office, and bearing arms, which is not equally applicable in the present case. We may go further, and insist that equality in the other cases requires equality here; otherwise, the whole system in incomplete and inharmonious".t 2

Law as confirmationofpersonal identity 5. "As students, we are trying to educate ourselves. We ask of the Republican party, as our friends, that we be assisted in this effort and not retarded by being reminded on every hand that we are regarded as inferiors, and that however well educated, and however respectable, we can not receive the same treatment in the public schools, in the cars, on steamboats, at hotels, and at places of amusements and instruction, as is accorded to other citizens. O f social equality we say nothing, because there is no such thing as social equality;, every white man can never be the social equal of every other white man; no more can every colored man be the social equal of every other colored man. It is a matter which ought to be regulated by character and culture, certainly not by legislation".' 3

6. "Indeed, the colored man cannot be educated in any proper sense, however numerous may be the school-houses to which he is invited, however bountiful the school endowment put within his reach, however admirable the school system in accordance with the methods of which it is proposed to educate him, if he is not made to feel in the common school, the academy, the college, and the professional school, that his manhood, his civil and social rights, are recognized and respected. This certainly is true of an American whether white or black. To attempt the education of a person in the midst of a tolerated and justified system of caste, is sure to dwarf rather than draw out and make useful his powers. It leads one so far to feel himself inferior to those of the dominant class in the midst of whom he moves, as too often

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Table ff (Continued) to accept patronizing treatment for a recognition of his manhood and his right: to accept edibles kindly given from a basket, while he fails to make demand for suitable recognition of his rights at the public hotel . . . . [¶] I would have no colored man 'thrust' himself upon 'white people.' I would have white people and black upon the same legal level. And, as far as colored men are educated, learned, virtuous, and influential, I would have them recognized and treated legally and socially according to their worth.

Otherwise, education, learning, virtue, and influence, possessed by colored persons, must be considered well nigh valueless, while they render their possessor sensitive to neglect and abuse, and thus ever unhappy. [¶] While, then, I would have our schools in the North and in the South largely endowed by grants of public lands and the judicious expenditure of large sums of money from the national and State treasuries, I would first of all have Sumner's supplementary civil rights bill passed by Congress.. 7.'*

TABLE III Statements associating legal protection with recognition of social distinction:

1. "I have been made to suffer in more than one instance upon the public carriage on account of my color. [¶] Nor is mine an isolated case. All respectable persons of color are daily suffering throughout the length and breadth of this 'free America.' [¶] Here is an instance unparalleled in history (sacred or profane.) I am a member of the Legislature of North Carolina. I passed a charter through the house in favor of a steamboat company. On returning home my only route is on the line belonging to the said company; and on this I am denied a first-class passage; am consigned to a prescribed quarter of the boar, a place

set apart for 'colored people;' a place, sir, only suited for the meanest and filthiest wretches on earth. Such are those which Americans fit up for my race irrespective of wealth, education, or gentility. [¶] Sir, if I am a free citizen of this 'grand Republic,' why am I denied privileges which are given to my white brother, although he might be the basest culprit upon earth, and perhaps fleeing from the arms of justice? Simply because he chances to have a white skin, and mine by the same reason is black. Because the Almighty wills that I should be black I am denied the rights of a free citizen on the very line established through

Privileges and Permissions: The Civil Rights Act of l 8 75

129

TableIII (Continued) my own instrumentality . . . . [¶] For the truth of these facts I vouch; and for my character I can refer you to Honorable C. L. Cobb, or to exGovernor Holden'.l 5 2. Two incidents of race discrimination with respect to funerals. "[A] charming child, four years old, died in Newport," could be buried in that city "only in a pauper's grave." "[A] colored woman of exemplary character'? in the same city, who had "contributed more generously, considering her means, than any other member of her church" was denied funeral services in her "white" church. "The very Bible used for the services was presented by this member while living".*o 3. "The importance to us of the passage of your supplementary civil rights bill cannot be overestimated. To-day colored men in the South, acting in high and respectable positions, both State and national, are often treated with less consideration than favored servants in hotels and upon public conveyances".J7 4. "It may not be out of place to state that the colored women, no matter of how good a character, of how much dignity and refinement, if they wish to visit a theater, are obliged to climb three or four flights of stairs, and then sit among the harlots; to stand on the platforms of street cars, sleep on the floors of steamboats, and on railroads

to ride in the smoking-cars, and in nearly every case are charged first-class fare". 18 5. [S.C. Sec'y of State and state Republican central committee chairman denied hotel rooms by hotel hosting Union League meeting.] "These gentlemen are educated, refined, and in every way unexceptionable, but having a tinge of color in their faces were denied the use of a place of public entertainment. As soon as the national executive committee of the Union League were informed of the circumstances, they immediately canceled their engagement of rooms . . . . and sought quarters where American citizens of good character might peaceably assemble without criticism of the color of the face or curl of the hair") 9 6. [Describing personal experience of segregation of steamboat cabins in the course of travel on Miss. River.] "I don't see why discrimination cannot be made among colored people, for example if a colored person lacks selfrespect and common decency why should well-bred colored persons be stigmatized, simply because they happen to belong to the same race? I am decidedly in favor of allowing water to find its level . . . . [¶] Your humble correspondent has had the distinguished honor of sitting in the same box at the Grand Imperial Opera at Paris with one of the French deputies

130

Patrick O. Gudridge

TablelII (Continued) or members of the Corps Legislati~ and, what is strange to say, no one's equilibrium was in the slightest degree disturbed by reason of my presence in that conspicuous locality. On the

contrary, every one seemed to vie with each other who could make me feel the most at home, and entertain me the most agreeably"?°

' Letter, F. A. Sykes, N.C. legislator, Jan. 15, 1872, Congressional Globe, 42nd Congress, 2nd Session, p. 431 (Jan. 17, 1872). 2 Address, Judge Cantwell, N.C.,Jan. 1, 1872, idem 431. 3 Mass meeting, Macon, Ga.,Jan. 2, 1872: resolutions, idem 429. 4 Resolutions, public meeting, Columbus, Ohio, Jan. 3, 1872, idem 430-31. s Article, NewNationalEra, Wash., D.C.,Jan., 1872, idem 433-34. 0 Letter, W. E. Saunders, Baltimore, Dec. 22, 1871, idem 433. 7 Report, trustees of Wash., D.C. "colored schools," Jan. 18, 1871, idem 434. 8 Letter, Douglass C Griffing, Oberlin, Ohio, Dec. 13, 1871, idem 431. Sumner said of this letter: "This letter is important as directly meeting the allegation so often made that this is a question of society, when, as I always insist, it is a question of equal rights, no question of society. Society has nothing to do with it." Idem. It should be clear, though, that Griffing's letter not only overlapped rights and privileges, but (in so doing) acknowledged the possibility of legal regulation of society. 9 j. F. Quarles, speech at Macon convention, supra, idem 429. l0 Address, officers and students of Howard U,, undated, idem 434. Jt Petition, Pa. Equal Rights League, undated, idem 432. J2 Report, trustees of Wash., D.C. "colored schools," Jan. 18, 1871, idem 434. t3 Address, officers and students of Howard U., undated, idem. ,4 Letter, Prof. John M. Langston, Howard University, Washington Chronicle, Dec. 26, 1871, idem 433. J5 Letter, F. A. Sykes, N.C. legislator, Jan. 15, 1872, idem 431. J0 Letter from unidentified writer, R. I., undated, idem. J7 Letter, W. H. Grey, Arl%Jan. 9, 1872, idem. ~8 Letter, H.J. Europe, Mobile, Ala., undated, idem 432. 19 Article, "Insult to public men," Washington Chronicle, April 21, 1871, idem 433. 20 Letter, John A. Newby, New National Era, Washington, Dec. 29, 1871, idem.