Civil Rights Act of 1875 (Major Acts of Congress)
The Civil Rights Act of 1875 (18 Stat. 335) was the last of the civil rights statutes enacted by Republican-dominated Congresses after the Civil War. Senator Charles Sumner of Massachusetts was a leader among the socalled Radical Republicans who sought to protect the rights of the newly freed slaves as a matter of principle and to preserve the Republican Party's power in the South. Sumner proposed a civil rights act in 1870 that would have banned racial discrimination in public schools, churches, and places of public accommodation such as hotels and theaters. Eliminating segregated public schools went well beyond what the nation's electorate was willing to support. As a result, Congress ignored the proposal until the 1874 elections, which gave the Democrats the majority in the House of Representatives. The outgoing Republican-controlled House knew that the incoming House would not adopt any civil rights legislation. They therefore pushed forward with Sumner's proposal. However, after Democrats in the House used procedural maneuvers to block the passage of the original proposal, Republican leaders stripped it of the most controversial provisions dealing with schools and churches.
In February 1875 Congress passed the Civil Rights act, which President Ulysses S. Grant signed on March 1, 1875. The act provided that: "All persons ... shall be entitled to the full and equal enjoyment of accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement." The act created a damage remedy of $500 to people who were victims of discrimination, and also made discrimination a criminal offense subject to a $1,000 fine and imprisonment for up to one year. Neither President Grant nor his successor, Rutherford B. Hayes, devoted much effort to enforcing the act, and relatively few private lawsuits were brought in the years immediately following its enactment.
SUPPORTERS AND DETRACTORS
The act's supporters drew on a rule developed by judges enforcing the general law of contracts, called the "common carrier" rule. According to this rule, which developed outside the context of race discrimination, transportation companies, hotels, and other places that offered services to the general public could not discriminate against anyone who sought to use the services. The common carrier rule required services be offered on a first come, first served basis. By the 1870s some state courts had begun to apply the common carrier rule to bar race discrimination in places of public accommodation.
The Civil Rights Act of 1875 attempted to extend the common carrier rule throughout the nation, and to provide a remedy for discrimination in federal court. The constitutional basis for the act was the power given to Congress under section 5 of the Fourteenth Amendment to enact legislation to enforce section 1 of that Amendment. Section 1 provides: "No State 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 law; nor deny to any person within its jurisdiction the equal protection of the laws."
Image Pop-UpDepicted here is a famous speech given by South Carolina representative Robert B. Elliot to the House of Representatives in favor of the Civil Rights Act, January 6, 1874. The central image shows Elliot speaking on the floor of the House. A banner with a quotation from his speech is hanging from the ceiling: "What you give to one class you must give to all. What you deny to one class you must deny to all." To the left of the center scene is Abraham Lincoln holding a bundle of arrows and the Emancipation Proclamation. To the right is Civil Rights advocate Charles Sumner, with his words "Equality of rights is the first of rights," below him. The bottom row of images makes references to black soldiers (left and right) and to a black family that owns a farm (center).
Opponents of the act raised constitutional objections. The most forceful objection was that the Fourteenth Amendment applied by its terms only to actions by states, whereas the act attempted to regulate the activities of private companies. The act's supporters responded that states could use the common carrier rule to bar race discrimination by common carriers, and that their failure to do so was an action (or at least a decision in the form of inaction) by the state's lawmakers. As Supreme Court Justice Joseph P. Bradley put it in a private letter written in 1871, the Fourteenth Amendment prohibited actions "denying" equal protection of the laws. Furthermore, "Denying includes inaction as well as action. And denying the equal protection of the laws includes the omission to protect, as well as the omission to pass laws for protection."
Constitutional challenges to the Civil Rights Act of 1875 reached the Supreme Court in a group of cases all decided in 1883 under the collective name, the Civil Rights Cases. Justice Bradley wrote the Court's opinion finding the act unconstitutional because it regulated not state action but actions by private companies operating hotels and theaters. The act, Justice Bradley wrote, "does not profess to be corrective of any constitutional wrong committed by the states." Bradley pointed out that the Civil Rights Act allowed the federal courts to displace state enforcement of its own laws even in states that had "the justest laws respecting the personal rights of citizens," and where those laws were really enforced. According to Justice Bradley, "The wrongful act of an individual ... is simply a private wrong," and "if not sanctioned in some way by the State, or not done under State authority, [the victim's] rights remain in full force." Victims of such wrongs, he said, could sue the wrongdoers in state courts and did not need the special assistance a federal claim provided. As Justice Bradley put it, the Fourteenth Amendment did not "authorize congress to create a code of municipal law for regulation of private rights."
Justice Bradley also rejected the argument that the Thirteenth Amendment gave Congress the power to enact the Civil Rights Act. The Thirteenth Amendment abolished slavery, and the act's defenders asserted that racial discrimination in places of public accommodation was a continuing "incident" of slavery. The Court responded, "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 people he will take into his coach or cab or car." For Justice Bradley, "When a man has emerged from slavery, ... there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the law." The former slaves in the United States, Justice Bradley believed, had reached that point. Only Justice John Marshall Harlan, a former slaveholder turned strong Republican, dissented, saying that the Thirteenth Amendment did give Congress the power to enact antidiscrimination laws.
MODERN APPLICATIONS OF THE CIVIL RIGHTS CASES
In 2000 the Supreme Court reaffirmed the Civil Rights Cases in a controversial decision, United States v. Morrison. This decision struck down a provision of the Violence Against Women Act that allowed victims of gender-based violence to sue their attackers in federal court. The Court held that, despite findings of bias against women in state court systems, Congress did not have sufficient evidence of a breakdown of the states' own enforcement processes to establish that the states had denied women the equal protection of the laws. For the Court, this case resembled the Civil Rights Cases. Once again, a legal claim had been made that a federal statute could apply to private conduct (in the 2000 case, violence against women) even if that conduct was not connected to a state's having denied a person equal protection under the laws.
An important result of the Civil Rights Cases was the creation of the so-called "state action" requirement. According to this requirement only decisions by the state, and not decisions by private parties or corporations, can violate a person's constitutional rights.
The problem, identified by Justice Bradley in 1871, is that most of what private companies do could be regulated by the states. In other words, how can courts decide when a private party's decision is the result of a state's failure to regulater, put another way, its inaction?
Congress did not attempt to enact further civil rights statutes until the Civil Rights movement of the 1950s and 1960s took hold. In the Civil Rights Act of 1964, Congress did prohibit race discrimination in public accommodations by relying on the commerce clause of the Constitution, which gives Congress the power to regulate interstate commerce. In Heart of Atlanta Motel v. United States(1964), the Supreme Court upheld the 1964 act as a valid exercise of that power.
Justice Bradley's initial thought that the government could be responsible for private acts of discrimination that it failed to prevent would have had a dramatic impact on the nation's understanding of the relation between individuals and the government. By 1883, when the Supreme Court confronted the constitutionality of the Civil Rights Act of 1875, Reconstruction was over and the nation's white majority was unwilling to commit itself to the kind of large-scale transformation of social relations Senator Sumner had hoped for. Although the Supreme Court overturned the act, the theory underlying the Civil Rights Act of 1875 has never been successfully refuted. The people of the United States, however, have found it easier to act against racial discrimination using more specific legal theories aimed at limited rather than wide ranging goals.
See also: CIVIL RIGHTS ACTS OF 1866, 1957, 1964; FAIR HOUSING ACT OF 1968; FORCE ACT OF 1871; VOTING RIGHTS ACT OF 1965.
Franklin, John Hope. "The Enforcement of the Civil Rights Act of 1875." In Race and History: Selected Essays 1938968. Baton Rouge: Louisiana State University Press, 1989.
Mack, Kenneth W. "Law, Society, Identity, and the Making of the Jim Crow South: Travel and Segregation on Tennessee Railroads, 1875905." Law and Social Inquiry 24, no. 2 (1999): 37710.
Westin, Alan F. "The Case of the Prejudiced Doorkeeper." In Quarrels That Have Shaped the Constitution, ed. John A. Garraty. New York: Harper & Row, 1962.
Wyatt-Brown, Bertram. "The Civil Rights Act of 1875." Western Political Quarterly 18 (1965): 76375.