All persons having business before the honorable, the Supreme Court of the United States, are admonished to draw near and give their attention. Landmark cases, cspans special history series, produced in partnership with the National Constitution center, exploring the human stories and constitutional dramas behind 12 historic Supreme Court decisions. Mr. Chief justice and may it please the court quite often, in many of our most famous decisions, are ones that the court took that were quite unpopular. Count the vote, count the vote. Lets go through a few cases that illustrate very dramatically and visually what it means to live in a society of different people. Who help stick together because they believe in a rule of law. Good evening, and welcome to cspans landmark cases, tonight were going to learn about a case that you may not have heard about. Its the civil rights cases of 1883, consolidation of five cases brought to the Supreme Court to help define the 14th amendment. Tonight were going to learn about reconstruction america and the court during that period and the decision they made in this case that affected the lives of africanamericans for the next 60, 70 years. Lots of history tonight, and we welcome your participation. Let me introduce you to our two guests at the table to help us understand this important case. Daniel holly walker is the dean of Howard Universitys law school here in washington, d. C. , she has federal court experience, at one time she clerked for carl stuart, chief justice of the fifth Circuit Court of appeals. Welcome, great to have you. Thank you. Peter kushnow is a republican, and he is also a partner at a law firm in cleveland, former member of the National LaborRelations Board appointed by president george w. Bush. Welcome to cspan, glad to have you. Thank you. When you go through high school or perhaps even college, you learn about plessy ferguson, the dread scott decision, this one not so much. If you had been advising us, would you have put this case on a landmark cases list . I would say absolutely. It deserves the same kind of treatment as dread scott and plessy versus ferguson. In some ways its more significant because those cases have been overturned. And so the civil rights cases are still relevant because theyre still cited by the Supreme Court today. And so i think that they definitely deserve to be on that list. Yeah, absolutely. Its part of a continuum. If you take a look at the enforcement acts in the cases that were cited thereunder, and in addition to what daniel said, if you take a look at this particular case, as opposed to some of the other enforcement cases, krukshank or plessy versus ferguson, youve got a case thats still viable, but also presaged that gave a road map for how the act would be passed and face be able to withstand constitutional challenge. Well, lets go back before we can go forward, and learn a bit about life after the civil war in the United States. So could both of you put a little bit of color onto the subject matter . This is 1870s, 1880s america, height of reconstruction. What was life like, particularly in the south, for blacks and whites, but america at large . Danielle . The reconstruction period is one of the most important periods in american history. I think so many important things happened during that period, including the founding of many hbcus, so including Howard University was founded in 1867, something that was done by general o. Howard, who helped to lead the friedmans bureau, a time of great political participation for africanamericans, over 2,000 africanamericans Held Public Office during that time. I think of people like Robert Smalls from south carolina, and it was a time in which there was a large negotiation about what would happen to the people who had previously been enslaved, what would their rights be . What would those bundle of rights be in terms of political rights, civil rights. A time of great uncertainty. We know that in the late 1860s, we see the rise of the ku kluks klan, partly in response to this idea that a great time of uncertainty, but also a time of enhanced political participation, and participation in civic life. Even things like for the first time we see someone like richard greener who has recently been celebrated at the university of south carolina, became the first black faculty member. Things like that are first landmarks that remained from that period for africanamericans. It was a time of amazing tumult when we just came out of civil war. All of the Confederate States were subject to military rule. And as danielle said, it was the growth of a clan, terror was going on, suppressed by Confederate States. Still, as well be probably discussing a little bit later, all these cases had a component to them, especially the 1870 enforcement act, trying to suppress what was going on with respect to the clan. It was a time, despite the fact that we just came through the most horrific period in terms of loss of life in the United States, history of the United States, there was still huge amounts of rebellion. There were massacres that had occurred. There was egregious discrimination. It was a difficult period of time. And the courts struggled through that. Not only was it a difficult time in terms of our cultures but it was a difficult time in terms of mediating where the law was going. We had several significant amendments that were passed in short order, 13th, 14th, 15th amendment, we had the emancipation proclamation, the first impeachment of a sitting president. All of these things going on within the space of maybe 15 years. We think that were living in Tumultuous Times now, but nothing like occurred then. Many of the members, the majority of the members of congress had served in the civil war, and many of the justices on the court had also served. So they brought that sensibility as they were deciding these issues for the public at large. I really would like to spend a moment, because people dont have access to their constitutions. Yes. And walking through the 13th, 14th and 15th amendment. So 13th, passed 1865. The 14th is celebrating its sesquicentennial this year, passed in 1868. And the 15th in 1870. The 13th amendment abolishes slavery, most important. And then section 2 of the 13th amendment gives congress, and this is what well spend a lot of time talking about, really empowers congress to be able to enforce basically that abolition of slavery. So thats the 13th. 14th amendment . Protection clause. Probably one of the most significant and used clauses in all of our constitutional jurisprudence. Its invoked on a number of occasions. In this case, unsuccessfully. And then we go onto the 15th amendment. All of these are about peace. They are an outgrowth of the institution of slavery and the second class status of blacks. The 15th amendment then ensured voting rights. The cases were going to be discussing, five consolidated cases, civil rights cases, dealt with an attempt to enforce the rights and privileges that were granted either under the 13th, 14th, 15th amendment. Now, theres an argument, and harlan makes the argument as to whether or not there are rights granted, affirmative positive rights granted by the 13th amendment, and also the 14th amendment. And that formed the debate between harlan on the one side and bradley on the other side. Go back to the 14th for just a second. So section 1, of course, is the citizenship clause, which we think so much about now and are talking a lot about now in our immigration debate, the birthright citizenship clause which says if youre born here in the United States when you are a citizen. And then we think of the privileges and immunities, due process and equal protection clause are all part of the 14th amendment. The last section of the 14th amendment says the Congress Shall have the power to enforce, by appropriate legislation, the provisions of this article. So very similar to the section 2 of the 13th amendment. And, in fact, there were people lobbying for the need to pass legislation to help underscore and perhaps shore up reconstruction. Two of those people were Frederick Douglass and senator charles summner of massachusetts. Who was Frederick Douglass, the preeminent civil rights leader of all time. He was the Martin Luther king jr. Of the 19th century. And, you know, heck, who wasnt Frederick Douglass. He was seminal to every, i think, philosophical underpinning of emancipation, possibly even the civil war. And everything that succeeded it in the reconstruction period. His home is here in washington, d. C. Its run now by the National Parks service. If you get to washington, its in dc we visited with our cameras and we went with historian edna green medford to learn more about the work of Frederick Douglass. Charles sumner and douglass were kindred spirits, sumner spent his entire life fighting for the rights of africanamericans, just like douglass. It is interesting, everything opportunity summer had he attempted to do something for african americans. The two men developed a friendship over the years. And so when sumner is issuing when hes going to the senate and hes suggesting that the 13th and 14th amendments arent working, in terms of ensuring that africanamericans are treated as full and complete citizens of the United States, while hes doing that, Frederick Douglass is out writing speeches, writing letters to friends and to politicians. Hes writing editorials, supporting what sumner is doing in congress. And sumner in turn, when hes speaking on the floor of the senate, is actually referencing douglass and the kinds of discrimination that douglass had personally experienced. So the two men are working hand in hand on this measure, not sitting at the same desk and writing, of course, but theyre supporting each others aim. So when sumner dies in 1874, he tells husband friends, like douglass, please dont let my bill die, you know, make sure that it is passed. And, of course, probably as in tribute to sumner, congress does the right thing and they do pass it. So peter kersinaw, what did the Civil Rights Act of 1875 do . There were several enforcement acts, and it was really the second one. The 1875 Civil Rights Act was, in many respects, the precursor to the 1964 Civil Rights Act. And what it purported to do was to grant equal protection, or the enjoyment of the privileges of immunities of citizens for public accommodations, whether it be opera houses, theaters, inns and public conveniences, and that was the key right there. The five cases that were brought, that were consolidated had to do with denials of the usage of an inn, an opera house, a theater, two inns, actually, an opera house, a theater, and also the 19th century rosa parks, if you will. One lady wanted to use a railroad car that was reserved for females, but was denied the ability to do that. So these cases were consolidated and brought before the court to determine whether or not the 1875 act, which purported to support the 14th amendment, granted these folks the ability to sue, the ability to seek redress under the 14th amendment. How did the country at large react to the passage of this legislation . I think it was a hugely controversial piece of legislation. And what was interesting is that it was really evolving. We talk about the tumultuous period of reconstruction, and going back to charles sumner. I think sumner and others said the 1866 Civil Rights Act we pass was not enough. They went forward to passing the 14th amendment. And 13th and 14th amendment did not have the effects they wanted to have. And because of that they wanted to see a greater impact from the Civil Rights Act of 1875. The reaction was a very strong reaction. There were in the south, for example, theater owners who said this will destroy our business, white theater owners said this will destroy our business if we are required to allow, basically, black members of the public to be able to come into theaters. Same arguments were made about railroad cars. Its very interesting again that these 19th century arguments really mirrored the ones we see in the 20th center when it comes to the Civil Rights Act of64. We heard about Frederick Douglass and charles sumner, and douglass will be part of our story. I want to spend a few minutes before we get into the mechanics of the case. Justice Joseph Bradley, and Justice John Marshall harlan. Both of them one wrote the majority opinion, the other wrote the single dissent to this case. Very interesting human beings. What can you tell us about bradley . Well, bradley finds himself at the fulcrum of almost everything that occurred with respect to the enforcement acts. Their reconstruction. What you see is, you know, we talk here about the 1883 civil rights cases. But prior to the 1883 civil rights cases, there were a couple cases, but one, the krukshank case that bradley wrote dealt with the 1870 enforcement act which i would argue probably had greater significance in the context of reconstruction, and the potential impact on black americans than the 1875 Civil Rights Act. And what that is, it was the first anticlan act. And among other things it was the enforcement mechanism for the 15th amendment. It would have protected the ability of or it did purport to protect the ability of blacks, for example, to seek redress when they were denied voting rights, other things such as gun rights, the way it was worded was directed particularly at the clan, and it was supported, or supporting the 14th amendment. Bradley wrote the opinion that struck that down, the 1870 Civil Rights Act, the enforcement act. And that was devastating in that context of where the United States was at that particular moment in time. Because there really was then no means to check the clan. And the clan was working as kind of the terrorist arm of the Democratic Party at the time enforcing segregation, enforcing second class status or third class status for blacks. And bradley wrote the majority opinion which followed, in large part, the way the civil rights cases were decided. That is, deciding them on the basis of the requirement of state action. That is, if there was not state action, or some type of state deprivation of equal protection, then there was no means of redress. Theres a really interesting part of his biography that we should tell before he gets to the majority opinion on this case. He was before he got appointed to the court in 1870 he was nationally known as a litigator. So he had a national reputation. And in the 1876 contested election, as you know, they set up a commission to decide the outcome of it, he was the 15th member and the deciding vote on that commission because he was seen as neutral. The others were all partisan. Even though he was a republican, and was appointed by graham in 1870, he was seen as neutral, it was very important. He essentially was a oneman vote on the outcome of the election. Can you tell us more about that . Yeah. So, i think the contested election, obviously, of 1876, when they set up this bipartisan commission, there is a lot of question, obviously, because of the irregularities that were thought to be there in the electoral votes in many states. He really becomes, even though he is a republican, thought to be someone who is who is really the voice of reason a lot in this debate. And i think also a notion that there was a great political compromise that was going on, too. Because the question was really, what would hayes give in order to become president. And really, that has a huge impact on this story because its really a return of kind of statescontrol over their own ability to govern themselves. So that becomes a huge part of the compromise, and really what becomes the end of reconstruction. Hayes moves quickly to end reconstruction. The 1870 compromise cant be overstated. What happened there was. In order for the democrats to support the determination that bradley made that gave the election to rutherford b. Hayes, in exchange for that, they would meaning the president would withdraw union troops from the south. You think about the implications of that. Now, were only just barely a decade after the civil war. Its a time of the carpet baggers, a time of military governorships. The clan was starting to grow and become more powerful. But it was being suppressed by the presence of federal troops. With that compromise, federal troops leave and now theres no enforcement mechanism. That is compounded by the fact that you have the civil rights cases, not only the 1883 civil rights case, but the krukshank case, so there were no protections for blacks. The compromise of 1877 probably had a greater bearing than the legal cases in terms of the protection of the rights of blacks in the old confederacy. But bradley becomes a figure then, a key figure through these cases and also through the compromise in the end of reconstruction. If people ever wonder if one person can change, impact history, heres a story, and his name is basically lost to most americans who had an enormous impact. Exactly. In fairness if you think it through, although the compromise of 1877 was affected because of bradleys vote that made the deciding vote for rutherford b. Hayes, sam tillden did the same thing. When bradley gets the bad rap for being the guy that cast the vote that had the troops withdrawn, either way it would have happened. If you read the briefest of biographies about him, it suggested he was going to go for till