Wednesday, February 4, 2015

The 19th Century Struggle for Civil Rights

[The following guest post was written by Goodson Law Library Reference Intern Aaron Kirschenfeld, who is completing a dual J.D. and Master's of Information Science at UNC-Chapel Hill in May.]

The monumental changes in American law, let alone in society, brought about by the Civil Rights Movement of the 1950s and '60s are well known to many in the legal community and to our country as a whole. Cases like Katzenbach v. McClung, 379 U.S. 294 (1964) and Heart of Atlanta Motel, Inc. v. U.S., 379 U.S. 241 (1964), and major federal legislation like the Civil Rights Act of 1964, 78 Stat. 241, and the Voting Rights Act of 1965, 79 Stat. 437, have left a lasting impression on the nation.

But what about the significant legacy of legal reform in the years following the Civil War? A new display in the Goodson Law Library's Riddick Rare Book & Special Collections Room, located on Level 3, commemorates Black History Month with a gathering of materials related to 19th century efforts to secure civil rights for the recently emancipated former slaves. (For an official federal recognition of Black History Month, along with a brief bit of history, see 100 Stat. 6.)

 During Reconstruction (1865 – 1877), Republicans in the U.S. Congress made several sweeping attempts to legislate equality: The Civil Rights Act of 1866, 14 Stat. 27, several Reconstruction and enforcement or "force" acts, and finally, the Civil Rights Act of 1875, 18 Stat. 335. (All of these statutes can be found in the U.S. Statutes at Large database on HeinOnline.) This last act contained language that would be echoed nearly a century later in the historic Civil Rights Act of 1964, including entitlement to:
equal enjoyment of … public conveyances on land or water, theaters, and other places of public amusement….
Debates printed in the Congressional Globe (the predecessor to the Congressional Record) and testimony from special Reconstruction hearings are on view.

The 1875 Act was struck down by the Supreme Court in The Civil Rights Cases, 109 U.S. 3 (1883), with a lone dissent by Justice John Marshall Harlan. Harlan was also the only dissenter in Plessy v. Ferguson, 163 U.S. 537 (1896). Both opinions are included in the excellent collection, I Dissent, edited by Mark Tushnet (KF8742 .I35 2008).

The 14th Amendment was passed by Congress in 1866 and ratified by the states in 1868. Also in 1868, North Carolina approved a new Constitution; a contemporary printing is on display (KFN7801 1868 .A4 1868 c.1). By that time, the Republican Party had gained control in the state, lifting "scalawag" William Woods Holden of Hillsborough into the Governor's office (though he was first appointed Military Governor by President Johnson in 1865). He was impeached with the backing of the nascent Ku Klux Klan in 1870. A record of the impeachment trial, complete with a handbill from the 1868 election, is also on display. When Republicans regained control later in the decade, the state elected its first black U.S. Congressman, John Adams Hyman.

Before the civil war, Black Codes often governed the rights of both slaves and free blacks. Louisiana, with its historical background in civil law, passed a Black Code in 1807, soon after statehood. After Reconstruction and the withdrawal of federal troops from the South, states again began enacting codes restricting the rights of blacks. These Jim Crow laws included mandates of racial segregation in public areas. In 1890, for instance, Louisiana passed the Separate Car Act, the public accommodation statute challenged, unsuccessfully, in Plessy.

Justice Harlan, in his Plessy dissent, wrote:
Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.
In all likelihood, Harlan lifted this notion of a color-blind Constitution from Albion W. Tourgée, Plessy's lawyer. After fighting in the Civil War, Tourgée, a native of Ohio, moved to Guilford County, North Carolina, where he served as a judge during Reconstruction. He fictionalized his experience as a “carpetbagger” in the novel A Fool's Errand (1879) and became a well-known speaker and writer. His novel Bricks Without Straw (1880) was written from the perspective of emancipated slaves as they experienced newfound political freedoms.

Come by the Riddick Room on Level 3 of the law library to see these and other materials on the struggle for civil rights and its roots in 19th century law.

-- Aaron Kirschenfeld, Reference Intern