Life and Times of Frederick Douglass (1892)/Chapter 47

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CHAPTER VI.

THE SUPREME COURT DECISION.

Action of the Supreme Court—Its effect on the colored people—Address at Lincoln Hall.

IN further illustration of the reactionary tendencies of public opinion against the black man and of the increasing decline, since the war for the Union, in the power of resistance to the onward march of the rebel States to their former control and ascendency in the councils of the nation, the decision of the United States Supreme Court, declaring the Civil Rights law of 1875 unconstitutional, is striking and convincing. The strength and activities of the malign elements of the country against equal rights and equality before the law seem to increase in proportion to the increasing distance between that time and the time of the war. When the black man's arm was needed to defend the country; when the North and the South were in arms against each other and the country was in danger of dismemberment, his rights were well considered. That the reverse is now true, is a proof of the fading and defacing effect of time and the transient character of Republican gratitude. From the hour that the loyal North began to fraternize with the disloyal and slaveholding South; from the hour that they began to "shake hands over the bloody chasm;" from that hour the cause of justice to the black" man began to decline and lose its hold upon the public mind, and it has lost ground ever since.

The future historian will turn to the year 1883 to find the most flagrant example of this national deterioration. Here he will find the Supreme Court of the nation reversing the action of the Government, defeating the manifest purpose of the Constitution, nullifying the Fourteenth Amendment, and placing itself on the side of prejudice, proscription, and persecution.

Whatever this Supreme Court may have been in the past, or may by the Constitution have been intended to be, it has, since the days of the Dred Scott decision, been wholly under the influence of the slave power, and its decisions have been dictated by that power rather than by what seemed to be sound and established rules of legal interpretation.

Although we had, in other days, seen this court bend and twist the law to the will and interest of the slave power, it was supposed that by the late war and the great fact that slavery was abolished, and the further fact that the members of the bench were now appointed by a Republican administration, the spirit as well as the body had been exorcised. Hence the decision in question came to the black man as a painful and bewildering surprise. It was a blow from an unsuspected quarter. The surrender of the national capital to Jefferson Davis in time of the war could hardly have caused a greater shock. For the moment the colored citizen felt as if the earth was opened beneath him. He was wounded in the house of his friends. He felt that this decision drove him from the doors of the great temple of American justice. The nation that he had served against its enemies had thus turned him over naked to those enemies. His trouble was without any immediate remedy. The decision must stand until the gates of death could prevail against it.

The colored men in the capital of the nation where the deed was done were quick to perceive its disastrous significance, and in the helpless horror of the moment they called upon myself and others to express their grief and indignation. In obedience to that call a meeting was assembled in Lincoln Hall, the largest hall in the city, which was packed by an audience of all colors, to hear what might be said to this new and startling event. Though we were powerless to arrest the wrong or modify the consequences of this extraordinary decision, we could, at least, cry out against its absurdity and injustice.

On that occasion our cause was ably and eloquently presented by that distinguished lawyer and eminent philanthropist, Robert G. Ingersoll. For my own part I felt it to be a serious thing to contradict the judgment of the highest court in the land, especially in view of the danger of being betrayed into unwise and extravagant language by the wild excitement of the moment. As the first speaker on that memorable occasion, I present here as a part of my "Life and Times" what I there said.

I have only a few words to say to you this evening.... It may be, after all, that the hour calls more loudly for silence than for speech. Later on in this discussion, when we shall have before us the full text of the Supreme Court and the dissenting opinion of Judge Harlan, who must have weighty reasons for separating from his associates and incurring thereby, as he must, an amount of criticism from which even the bravest man might shrink, we may be in a better frame of mind, better supplied with facts, and better prepared to speak calmly, correctly and wisely than now. The temptation at this time is to speak more from feeling than reason, more from impulse than reflection.

We have been, as a class, grievously wounded, wounded in the house of our friends, and this wound is too deep and too painful for ordinary and measured speech.

"When a deed is done for freedom,
Through the broad earth's aching breast
Runs a thrill of joy prophetic,
Trembling on from east to west."

But when a deed is done for slavery, caste and oppression, and a blow is struck at human progress, whether so intended or not, the heart of humanity sickens in sorrow and writhes in pain. It makes us feel as if some one were stamping upon the graves of our mothers, or desecrating our sacred temples. Only base men and oppressors can rejoice in a triumph of injustice over the weak and defenseless; for weakness ought itself to protect from assaults of pride, prejudice and power.

The cause which has brought us here to-night is neither common nor trivial. Few events in our national history have surpassed it in magnitude, importance and significance. It has swept over the land like a cyclone, leaving moral desolation in its track. This decision belongs with a class of judicial and legislative wrongs by which we have been oppressed.

We feel it as we felt years ago the furious attempt to force the accursed system of slavery upon the soil of Kansas; as we felt the enactment of the Fugitive Slave Bill, the repeal of the Missouri Compromise, and the Dred Scott decision. I look upon it as one more shocking development of that moral weakness in high places which has attended the conflict between the spirit of liberty and the spirit of slavery, and I venture to predict that it will be so regarded by aftercoming generations. Far down the ages, when men shall wish to inform themselves as to the real state of liberty, law, religion, and civilization in the United States at this juncture of our history, they will overhaul the proceedings of the Supreme Court, and read this strange decision declaring the Civil Rights Bill unconstitutional and void.

From this more than from many volumes they will learn how far we had advanced, in this year of grace, from the barbarism of slavery toward civilization and the rights of man.

Fellow-citizens ! Among the great evils which now stalk abroad in our land, the one, I think, which most threatens to undermine and destroy the foundations of our free institutions in this country is the great and apparently increasing want of respect entertained for those to whom are committed the responsibility and the duty of administering our government. On this point I think all good men must agree, and against the evil I trust you feel the deepest repugnance, and that we will, neither here nor elsewhere, give it the least breath of sympathy or encouragement. We should never forget, whatever may be the incidental mistakes or misconduct of rulers, that government is better than anarchy, and that patient reform is better than violent revolution.

But while I would increase this feeling and give it the emphasis of a voice from heaven, it must not be allowed to interfere with free speech, honest expression of opinion, and fair criticism. To give up this would be to give up progress, and to consign the nation to moral stagnation, putrefaction and death.

In the matter of respect for dignitaries, it should, however, never be forgotten that duties are reciprocal, and that while the people should frown down every manifestation of levity and contempt for those in power, it is the duty of the possessors of power so to use it as to deserve and insure respect and reverence.

To come a little nearer to the case now before us. The Supreme Court of the United States, in the exercise of its high and vast constitutional power, has suddenly and unexpectedly decided that the law intended to secure to colored people the civil rights guaranteed to them by the following provision of the Constitution of the United States, is unconstitional and void. Here it is:—

"No state," says the Fourteenth Amendment, "shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of the law; or deny any person within its jurisdiction the equal protection of the laws."

Now, when a bill has been discussed for weeks and months and even years, in the press and on the platform, in Congress and out of Congress; when it has been calmly debated by the clearest heads and the most skillful and learned lawyers in the land; when every argument against it has been over and over again carefully considered and fairly answered; when its constitutionality has been especially discussed, pro and con.; when it has passed the United States House of Representatives and has been solemnly enacted by the United States Senate (perhaps the most imposing legislative body in the world); when such a bill has been submitted to the cabinet of the nation, composed of the ablest men in the land; when it has passed under the scrutinizing eye of the Attorney-General of the United States; when the Executive of the nation has given to it his name and formal approval; when it has taken its place upon the statute-book and has remained there for nearly a decade, and the country has largely assented to it, you will agree with me that the reasons for declaring such a law unconstitutional and void should be strong, irresistible, and absolutely conclusive.

Inasmuch as the law in question is a law in favor of liberty and justice, it ought to have had the benefit of any doubt which could arise as to its strict constitutionality. This, I believe, will be the view taken of it, not only by laymen like myself, but by eminent lawyers as well.

All men who have given any thought to the machinery, structure, and practical operation of our government, must have recognized the importance of absolute harmony between its various departments and their respective powers and duties. They must have seen clearly the mischievous tendency and danger to the body politic of any antagonisms between any of its various branches. To feel the force of this thought, we have only to remember the history of the administration of President Johnson, and the conflict which took place between the national Executive and the national Congress, when the will of the people was again and again met by the Executive veto, and when the country seemed upon the verge of another revolution. No patriot, however bold, can wish for his country a repetition of those gloomy days.

Now let me say here, before I go on a step or two further in this discussion, that if any man has come here to-night with his breast heaving with passion, his heart flooded with acrimony, and wishing and expecting to hear violent denunciation of the Supreme Court on account of this decision, he has mistaken the object of this meeting and the character of the men by whom it is called.

We neither come to bury Caesar nor to praise him. The Supreme Court is the autocratic point in our government. No monarch in Europe has a power more absolute over the laws, lives, and liberties of his people than that court has over our laws, lives and libertiesIts judges live, and ought to live, an eagle's flight beyond the reach of fear or favor, praise or blame, profit or loss. No vulgar prejudice should touch the members of that court anywhere. Their decisions should come down to us like the calm, clear light of infinite justice. We should be able to think of them and to speak of them with profoundest respect for their wisdom and deepest reverence for their virtue; for what his Holiness the Pope is to the Roman Catholic Church, the Supreme Court is to the American state. Its members are men, to be sure, and may not, like the Pope, claim infallibility, and they are not infallible, but they are the supreme law-giving power of the nation, and their decisions are law until changed by that court.

What will be said here to-night will be spoken, I trust, more in sorrow than in anger; more in a tone of regret than in bitterness and reproach, and more to promote sound views than to find bad motives for unsound views.

We cannot, however, overlook the fact that though not so intended, this decision has inflicted a heavy calamity upon seven millions of the people of this country, and left them naked and defenseless against the action of a malignant, vulgar and pitiless prejudice from which the Constitution plainly intended to shield them.

It presents the United States before the world as nation utterly destitute of power to protect the constitutional rights of its own citizens upon its own soil. It can claim service and allegiance, loyalty and life from them, but it cannot protect them against the most palpable violation of the rights of human nature; rights to secure which governments are established. It can tax their bread and tax their blood, but it has no protecting power for their persons. Its national power extends only to the District of Columbia and the Territories—to where the people have no votes, and to where the land has no people. All else is subject to the States. In the name of common sense, I ask what right have we to call ourselves a nation, in view of this decision and of this utter destitution of power? In humiliating the colored people of this country, this decision has humbled the nation. It gives to the railroad conductor in South Carolina or Mississippi more power than it gives to the National Government. He may order the wife of the Chief Justice of the United States into a smoking-car full of hirsute men, and compel her to go and to listen to the coarse jests and inhale the foul smoke of a vulgar crowd. It gives to hotel-keepers who may, from a prejudice born of the Rebellion, wish to turn her out at midnight into the storm and darkness, power to compel her to go. In such a case, according to this decision of the Supreme Court, the National Government has no right to interfere. She must take her claim for protection and redress, not to the nation, but to the State; and when the State, as I understand it, declares that there is upon its statute-book no law for her protection, and that the State has made no law against her, the function and power of the National Government are exhausted and she is utterly without any redress.

Bad, therefore, as our case is, under this decision, the evil principle affirmed by the court is not wholly confined to or spent upon persons of color. The wife of Chief-Justice Waite—I speak it respectfully—is protected to-day, not by the law, but solely by the accident of her color. So far as the law of the land is concerned, she is in the same condition as that of the humblest colored woman in the Republic. The difference between colored and white here is that the one, by reason of color, does not need protection. It is nevertheless true that manhood is insulted in both cases. "No man can put a chain about the ankle of his fellow-man, without at last finding the other end of it about his own neck."

The lesson of all the ages upon this point is, that a wrong done to one man is a wrong done to all men. It may not be felt at the moment, and the evil may be long delayed, but so sure as there is a moral government of the universe, so sure as there is a God of the universe, so sure will the harvest of evil come. Color prejudice is not the only prejudice against which a Republic like ours should guard. The spirit of caste is malignant and dangerous everywhere. There is the prejudice of the rich against the poor, the pride and prejudice of the idle dandy against the hard-handed workingman. There is, worst of all, religious prejudice, a prejudice which has stained whole continents with blood. It is, in fact, a spirit infernal, against which every enlightened man should wage perpetual war. Perhaps no class of our fellow-citizens has carried this prejudice against color to a point more extreme and dangerous than have our Catholic Irish fellow-citizens, and yet no people on the face of the earth have been more relentlessly persecuted and oppressed on account of race and religion than have this same Irish people.

But in Ireland persecution has at last reached a point where it reacts terribly upon her persecutors. England is to-day reaping the bitter consequences of her own injustice and oppression. Ask any man of intelligence, "What is the chief source of England's weakness? What has reduced her to the rank of a second-class power?" and if truly answered, the answer will be "Ireland!" But poor, ragged, hungry, starving, and oppressed as Ireland is, she is strong enough to be a standing menace to the power and glory of England.

Fellow-citizens ! We want no black Ireland in America. We want no aggrieved class in America. Strong as we are without the negro, we are stronger with him than without him. The power and friendship of seven millions of people, however humble and scattered all over the country, are not to be despised.

To-day our Republic sits as a queen among the nations of the earth. Peace is within her walls and plenteousness within her palaces, but he is bolder and a far more hopeful man than I am who will affirm that this peace and prosperity will always last. History repeats itself. What has happened once may happen again.

The negro, in the Revolution, fought for us and with us. In the war of 1812 General Jackson, at New Orleans, found it necessary to call upon the colored people to assist in its defense against England. Abraham Lincoln found it necessary to call upon the negro to defend the Union against rebellion. In all cases the negro responded gallantly.

Our legislators, our Presidents, and our judges should have a care, lest, by forcing these people outside of law, they destroy that love of country which in the day of trouble is needful to the nation's defense.

I am not here in this presence to discuss the constitutionality or the unconstitutionality of this decision of the Supreme Court. The decision may or may not be constitutional. That is a question for lawyers and not for laymen ; and there are lawyers on this platform as learned, able and eloquent as any who have appeared in this case before the Supreme Court, or as any in the land. To these I leave the exposition of the Constitution ; but I claim the right to remark upon a strange and glaring inconsistency of this decision with former decisions, where the rules of law apply. It is a new departure, entirely out of the line of precedents and decisions of the Supreme Court at other times and in other directions where the rights of colored men were concerned. It has utterly ignored and rejected the force and application of the object and intention of the adoption of the Fourteenth Amendment. It has made no account whatever of the intention and purpose of Congress and the President in putting the Civil Rights Bill upon the statute book of the nation. It has seen fit in this case affecting a weak and much persecuted people, to be guided by the narrowest and most restricted rules of legal interpretation. It has viewed both the Constitution and the law with a strict regard to their letter, but without any generous recognition and application of their broad and liberal spirit. Upon those narrow principles the decision is logical and legal of course. But what I complain of, and what every lover of liberty in the United States has a right to complain of, is this sudden and causeless reversal of all the great rules of legal interpretation by which this court was once governed in the construction of the Constitution and of laws respecting colored people.

In the dark days of slavery this court on all occasions gave the greatest importance to intention as a guide to interpretation. The object and intention of the law, it was said, must prevail. Everything in favor of slavery and against the negro was settled by this object and intention rule. We were over and over again referred to what the framers meant, and plain language itself was sacrificed and perverted from its natural and obvious meaning that the so affirmed intention of these framers might be positively asserted and given the force of law. When we said in behalf of the negro that the Constitution of the United States was intended to establish justice and to secure the blessings of liberty to ourselves and our posterity, we were told that the words said so, but that that was obviously not its intention; that it was intended to apply only to white people, and that the intention must govern.

When we came to the clause of the Constitution which declares that the immigration or importation of such persons as any of the States may see fit to admit shall not be prohibited, and the friends of liberty declared that this provision of the Constitution did not describe the slave-trade, they were told that while its language applied not to the slaves but to persons, still the object and intention of that clause of the Constitution was plainly to protect the slave-trade, and that that intention was the law and must prevail. When we came to that clause of the Constitution which declares that "No person held to labor or service in one State under the laws thereof, escaping into another, shall in consequence of any law or regulation therein be discharged from such labor or service, but shall be delivered up on claim of the party to whom such labor or service may be due," we insisted that it neither described nor applied to slaves; that it applied only to persons owing service and labor; that slaves did not and could not owe service and labor; that this clause of the Constitution said nothing of slaves or of the masters of slaves; that it was silent as to slave States or free States; that it was simply a provision to enforce a contract and not to force any man into slavery, for the slave could not owe service or make a contract. We affirmed that it gave no warrant for what was called "The Fugitive Slave Bill," and we contended that the bill was therefore unconstitutional ; but our arguments were laughed to scorn by that court and by all the courts of the country. We were told that the intention of the Constitution was to enable masters to recapture slaves, and that the law of '93 and the Fugitive Slave Law of 1850 were constitutional, binding not only on the State but upon each citizen of a State.

Fellow-citizens ! While slavery was the base line of American society, while it ruled the church and state; while it was the interpreter of our law and the exponent of our religion, it admitted no quibbling, no narrow rules of legal or scriptural interpretations of the Bible or of the Constitution. It sternly demanded its pound of flesh, no matter how the scale turned or how much blood was shed in the taking of it. It was enough for it to be able to show the intention to get all it asked in the courts or out of the courts. But now slavery is abolished. Its reign was long, dark and bloody. Liberty is now the base line of the Republic. Liberty has supplanted slavery, but I fear it has not supplanted the spirit or power of slavery. Where slavery was strong, liberty is now weak.

Oh, for a Supreme Court of the United States which shall be as true to the claims of humanity as the Supreme Court formerly was to the demands of slavery! When that day comes, as come it will, a Civil Rights Bill will not be declared unconstitutional and void, in

utter and flagrant disregard of the objects and intentions of the national legislature by which it was enacted and of the rights plainly secured by the Constitution. This decision of the Supreme Court admits that the Fourteenth Amendment is a prohibition on the States. It admits that a State shall not abridge the privileges or immunities of citizens of the United States, but commits the seeming absurdity of allowing the people of a State to do what it prohibits the State itself from doing.

It used to be thought that the whole was more than a part; that the greater included the less, and that what was unconstitutional for a State to do was equally unconstitutional for an individual member of a State to do. What is a State, in the absence of the people who compose it? Land, air and water. That is all. Land and water do not discriminate. All are equal before them. This law was made for people. As individuals, the people of the State of South Carolina may stamp out the rights of the negro wherever they please, so long as they do not do so as a State, and this absurb conclusion is to be called a law. All the parts can violate the Constitution, but the whole cannot. It is not the act itself, according to this decision, that is unconstitutional. The unconstitutionality of the case depends wholly upon the party committing the act. If the State commits it, the act is wrong; if the citizen of the State commits it, the act is right.

O consistency, thou. art indeed a jewel! What does it matter to a colored citizen that a State may not insult and outrage him, if the citizen of the State may? The effect upon him is the same, and it was just this effect that the framers of the Fourteenth Amendment plainly intended by that article to prevent.

It was the act, not the instrument; it was the murder, not the pistol or dagger, which was prohibited. It meant to protect the newly enfranchised citizen from injustice and wrong, not merely from a State, but from the individual members of a State. It meant to give the protection to which his citizenship, his loyalty, his allegiance, and his services entitled him ; and this meaning and this purpose and this intention are now declared by the Supreme Court of the United States to be unconstitutional and void.

I say again, fellow-citizens, Oh, for a Supreme Court which shall be as true, as vigilant, as active and exacting in maintaining laws enacted for the protection of human rights, as in other days was that court for the destruction of human rights!

It is said that this decision will make no difference in the treatment of colored people ; that the Civil Rights Bill was a dead letter and could not be enforced. There may be some truth in all this, but it is not the whole truth. That bill, like all advance legislation, was a banner on the outer wall of American liberty; a noble moral standard uplifted for the education of the American people. There are tongues in trees, sermons in stones, and books in the running brooks. This law, though dead, did speak. It expressed the sentiment of justice and fair play common to every honest heart. Its voice was against popular prejudice and meanness. It appealed to all the noble and patriotic instincts of the American people. It told the American people that they were all equal before the law; that they belonged to a common country and were equal citizens. The Supreme Court has hauled down this broad and glorious flag of liberty in open day and before all the people, and has thereby given joy to the heart of every man in the land who wishes to deny to others the rights he claims for himself. It is a concession to race pride, selfishness, and meanness, and will be received with joy by every upholder of caste in the land, and for this I deplore and denounce this decision.

It is a frequent and favorite device of an indefensible cause to misstate and pervert the views of those who advocate a good cause, and I have never seen this device more generally resorted to than in the case of the late decision on the Civil Rights Bill. When we dissent from the opinion of the Supreme Court and give the reasons why we think the opinion unsound, we are straightway charged in the papers with denouncing the court itself, and thus put in the attitude of bad citizens. Now, I utterly deny that there has ever been any denunciation of the Supreme Court by the speakers on this platform, and I defy any man to point out one sentence or one syllable of any speech of mine in denunciation of that court.

Another illustration of this tendency to put opponents in a false position, is seen in the persistent effort to stigmatize the Civil Rights Bill as a Social Rights Bill. Now, where under the whole heavens, outside of the United States, could any such perversion of truth have any chance of success? No man in Europe would ever dream that because he has a right to ride on a railway, or stop at a hotel, he therefore has the right to enter into social relations with anybody.

No one has a right to speak to another without that other's permission. Social equality and civil equality rest upon an entirely different basis, and well enough the American people know it; yet, in order to inflame a popular prejudice, respectable papers like the New York Times and the Chicago Tribune persist in describing the Civil Rights Bill as a Social Rights Bill.

When a colored man is in the same room or in the same carriage with white people, as a servant, there is no talk of social equality, but if he is there as a man and a gentleman, he is an offense. What makes the difference? It is not color, for his color is unchanged. The whole essence of the thing is in its purpose to degrade and stamp out the liberties of the race. It is the old spirit of slavery and nothing else. To say that because a man rides in the same car with another, he is therefore socially equal, is one of the wildest absurdities.

When I was in England, some years ago, I rode upon highways, byways, steamboats, stage-coaches and omnibuses. I was in the House of Commons, in the House of Lords, in the British Museum, in the Coliseum, in the National Gallery, everywhere; sleeping in rooms where lords and dukes had slept; sitting at tables where lords and dukes were sitting; but I never thought that those circumstances made me socially the equal of these lords and dukes. I hardly think that some of our Democratic friends would be regarded among those lords as their equals. If riding in the same car makes one equal, I think that the little poodle dog I saw one day sitting in the lap of a lady was made equal by riding in the same car with her. Equality, social equality, is a matter between individuals. It is a reciprocal understanding. I do not think that when I ride with an educated, polished rascal he is thereby made my equal, or that when I ride with a numskull it makes him my equal. Social equality does not necessarily follow from civil equality, and yet for the purpose of a hell-black and damning prejudice, our papers still insist that the Civil Rights Bill is a bill to establish social equality.

If it is a bill for social equality, so is the Declaration of Independence, which declares that all men have equal rights; so is the Sermon on the Mount; so is the golden rule that commands us to do to others as we would that others should do to us; so is the teaching of the Apostle that of one blood God has made all nations to dwell on the face of the earth; so is the Constitution of the United States, and so are the laws and customs of every civilized country in the world; for nowhere, outside of the United States, is any man denied civil rights on account of his color.