History 404: US Constitution Seminar

PBS Pinchback (frequently mistaken for Homer Plessy / see comment below)

In From Jim Crow to Civil Rights (Oxford, 2004) Michael J. Klarman identifies Plessy v. Ferguson, along with Brown v. Board of Education as two Supreme Court cases that reflect the “dramatic changes in racial attitudes and practices that occurred between 1900 and 1950.” (4) Klarman argues that, “judicial decision making involves a combination of legal and political factors,” (5) and he applies this logic to how the Supreme Court made their decision in the Plessy case.

Michael J. Klarman aims to tell the story of how American race relations changed between Reconstruction and The Civil Rights Movement while incorporating several Supreme Court decisions into his work. He focuses on the Supreme Court decisions of the time (1895-1965) in an effort to understand and interpret how the justices decided cases involving the Constitution and race. (5) His inclusion of Plessy v. Ferguson involves the constitutionality of statutes passed by individual states that mandated segregation, or separate but equal public accommodations for blacks and whites on trains. In order to understand how the Supreme Court made their decision in the Plessy case, it is imperative to have an understanding of not only the case itself but the historical background and relevant contextual issues of the time: the preexisting legislation at the time involving race and railroads, the changes that took place between 1865 and 1896 in terms of political power, and the background of the seven Supreme Court Justices that presided over the case.

The Honorable John M. Wisdom’s “Plessy v. Ferguson–100 Years Later” (available through LexisNexis) gives an account and summary of the case from the perspective of a liberal republican judge on the Court of Appeals for the Fifth Circuit. In 1890, citizens of Louisiana became upset when the state passed Act 111, which segregated railway cars by race. Two years later, a group of black and white activists in New Orleans decided to test the actual equality of the separate railway cars.  Calling themselves the Citizen’s Committee to Test the Separate Car Act, the group contacted Albion Tourgee as a legal counsel and Homer Plessy, who was 1/8 black, as the plaintiff in the future case. Plessy could easily pass as a white man, which would allow him access to the segregated car. On June 7, 1892, Homer Plessy successfully purchased a ticket for a white car on the East Louisiana Railroad.  After he was seated in the car, workers noticed that he was not completely white and asked him to move back into the colored car.  When he refused to leave, Plessy was removed from the car by workers, arrested, and jailed.

Homer Adolph Plessy v. The State of Louisiana was first heard by a Louisiana District Court.  Tourgee argued the case under a strong defense of Plessy’s 13^th and 14^th Amendment rights being denied.  Judge John Ferguson ruled that the rail company was under the jurisdiction of Louisiana state law that provided its own standards for interstate transit.  Not defeated by this loss, Tourgee and appealed the case on to the Louisiana State Supreme Court.  The court upheld the district court’s original verdict.  After short deliberation, the case was appealed to the United States Supreme Court.  This proved to be a much longer endeavor than the previous two courts, but the case was eventually heard on April 13, 1896. The United States Supreme Court ruled in favor of the State of Louisiana with a margin of 7 to 1; in their decision, the court upheld the legality of segregated railroad cars under the policy of “separate but equal.” In his article “Plessy as Passing,” Mark Golub calls this decision “a symbol of American racial Apartheid.” (564)

Michael J. Klarman explains in his contextual summary of the case that race relations in The United States had changed significantly between the 1866 Civil Rights Act and the passing of the Fourteenth Amendment and the Plessy v. Ferguson case. The number of blacks lynched each year dropped between the end of the Civil War and the 1870s, but rose in the 1890s due to the “interplay between regional developments and national ones.” (11) A combination of the growing migration of blacks to the north, the desire for sectional reconciliation, The Spanish-American War, and the lessening support of the Republican Party to black suffrage resulted in what Klarman calls “a long downward spiral” in race relations (8-15).  For the most part, public opinion on the rights of blacks changed in both the north and south, and the views (or what little is known about them) of the Supreme Court Justices reflected the changes of the time.

Despite what little has been written about the personal lives and racial views of the Justices presiding over the case, Klarman points out that Edward D. White had been a Confederate soldier, Chief Justice Melville W. Fuller had led legislative opposition to Lincoln’s Emancipation Proclamation, and David J. Brewer believed that neither state law nor the 14^th Amendment forbade states from segregating public schools (15-17).  These political and legal factors, along with thirty years worth of judicial precedent that supported segregation, are causes that Klarman attributes to the court’s decision. The opinions and decision of the court can be found on Justia.com, which is one of the best sources for law and legal information available online.

Justice Henry Billings Brown wrote the Plessy v. Ferguson decision, and his memoirs (with an autobiographical sketch by Charles A. Kent) are a great source for primary source background on his life and the decision. Not much has been written recently on the lives of Justices Horace Gray, George Shiras, Jr., Stephen Johnson Field, but Loren P. Beth’s John Marshall Harlan: The Last Whig Justice is a great secondary source that covers the life of John Marshall Harlan, the lone dissenter in the case.

Plessy v. Ferguson is a highly debated and pertinent topic today, and there are numerous secondary sources that cover the case. David W. Bishop’s Reinterpretation of Plessy v. Ferguson (Durham, North Carolina), Otto H. Olsen’s The Thin Disguise, and C. Vann Woodward’s “The Birth of Jim Crow: Plessy v. Ferguson” are all explanations of the case that are relevant in understanding the “separate but equal” policy that was reaffirmed by the court’s ruling.

Post-Civil War Black Franchisement, Courtesy of PBS.

In his book From Jim Crow to Civil Rights (New York, 2004), Michael J. Klarman states the importance of Williams v. Mississippi as a catalyst for African Americans challenging the field of disfranchisement.  While the eventual decision in the case refuted the objections brought up during the trial, Klarman states that the trial “played little role in advancing black disfranchisement” (52).

Klarman discusses the importance of the two challenges brought forward by the defense in Williams v. Mississippi and, through these points, the lack of equal rights of the Southern states such as Mississippi become apparent even at the turn of the twentieth century, years after the emancipation of the slaves.  Henry Williams, the black defendant in the case accused and convicted by an all-white jury of murder, as well as his attorney Cornelius J. Jones believed that because Mississippi did not allow blacks to serve on grand juries, the murder charge against Williams should be rescinded.  Williams also believed that his credentials for voting were more than adequate, as, according to the Constitution of 1890, one must be a qualified voter in order to serve on a jury in Mississippi.  The second challenge came with Williams and Jones believing that the qualifications adopted in the Constitution of 1890 were particularly discriminatory towards blacks and even poor whites.  Elections in the state of Mississippi had been incredibly violent for a number of years because of whites and blacks conflicting at voting stations.  Eventually, to attempt to quell the distress, blacks were effectively disfranchised with the institution of a poll tax and literacy test in Constitution of 1890.  This, however, was unrecognized by the Supreme Court at the time and a unanimous vote of 9-0 sent Williams and Jones to defeat.

While there are no notable books only detailing the events concerning the trial of Williams v. Mississippi, there are several journal articles which provide mention to it in order to emphasize the lack of progression the United States had made in terms of gaining racial equality between whites and blacks.  The American Journal of Sociology article “Ballot Manipulation and the ‘Menace of Negro Domination:’ Racial Threat and Felon Disenfranchisement in the United States, 1850-2002” by Angela Behrens, Christopher Uggen, and Jeff Manza details the correlation between racism and voting rights, especially in the South, and outlines a number of cases concerning black suffrage, such as Williams v. Mississippi.  Southern disfranchisement, especially in Mississippi, as well as the trial of Williams v. Mississippi is detailed in a British Journal of Political Science article titled “Without Fear or Shame: Lynching, Capital Punishment and the Subculture of Violence in the American South” by James W. Clarke.

Chief Justice Melville Fuller, Courtesy of American National Biography.

The Chief Justice of the Supreme Court at the time of the Williams v. Mississippi case in 1898 was the long serving Melville Fuller.  The best source documenting the progression of the period in which Fuller served as the Chief Justice of the Supreme Court is The Chief Justiceship of Melville W. Fuller, 1888-1910 by James W. Ely, Jr. This book by Ely adequately describes the court of Fuller as one geared toward probusiness and racist views as evidenced by the cases Lochner v. New York and Plessy v. Ferguson, two landmark trials around the turn of the twentieth century in America.

The other Supreme Court justices who participated in the unanimous 9-0 vote, including John Marshall Harlan, the lone dissenter of Plessy v. Ferguson and supporter of integration in the South, do not have any notable biographies focused solely on their lives, however they receive a great deal of mention in biographies of Melville Fuller as well as books detailing the lives of Supreme Court justices.

There are many web sources that have the transcription of the Williams v. Mississippi trial, however sources that provide overviews of the case, including the overview and background, are harder to come by online.  Websites such as Mississippi History Now and PBS detail the Constitution of 1890 in Mississippi as well as the background of the voting issues which were brought to the forefront of the Williams vs. Mississippi trial.

Michael J. Klarman’s From Jim Crow to Civil Rights (Oxford, 2004) examines the Supreme Court decision in Buchanan v. Warley (1917) and finds that the case, which is often interpreted as a great step forward for racial equality, is actually misunderstood and overvalued as an advancement of civil rights. Klarman states that in the Progressive Era, where “public sentiment could segregate as effectively as law,” the physical or legal changes that Buchanan produced were irrelevant compared to the importance of the sense of hope and encouragement created by the ruling (91).

The case found its way to the Supreme Court after William H. Buchanan, a white man, sued William Warley, a black man, for trying to get out of a contract regarding a house sale. Louisville, Kentucky had an ordinance that forbade blacks from living on a predominately white block (or whites from living on a black block). Buchanan sold Warley a house in a white block but Warley could not live on the block, so he did not complete the sale. When Buchanan sued him over his refusal, Warley cited the city ordinance as a viable and legal reason to opt out of the contract and not complete the sale. The Kentucky Court of Appeals eventually saw the case and rejected Buchanan’s argument that Louisville’s ordinance violated the 14th Amendment, particularly the Due Process clause. Upon higher appeal, the Supreme Court ruled that Louisville’s ordinance was unconstitutional and that it did violate the Due Process clause and its stated property rights. The court’s unanimous decision was a surprising one that failed to “convincingly distinguish precedent” in a time when “law review commentary, both before and after Buchanan, was so overwhelmingly supportive of residential segregation ordinances” (80). The Progressive Era saw few advancements for civil rights and while the court’s Buchanan decision was unique for its time, “it was not a significant departure with regard to race” (80). The case may have seemed a victory for blacks in America, but in fact the ruling was designed to protect (predominately white) people’s property rights and their ability to make a profit.

The Buchanan decision, Klarman argues, was not intentioned to improve life for African American’s and that its consequences were more important in the future development of civil rights. Klarman argues that Progressive Era civil rights cases like Buchanan v. Warley were more like “symbols of hope than effective bulwarks against the racial injustice” and that perhaps their most valuable contribution to the civil rights movement was “convincing potential participants that its goals [were] feasible” (93). This is where many legal scholars and historians begin to present views that clash with Klarman’s minimalist attitude. In David E. Bernstein and Ilya Somin‘s extensive review of Klarman’s book, they argue that while Klarman’s interpretation of the case and its significance is valuable and well-informed, he underestimates the “willingness and the ability of courts to make a difference” and the “importance of…law more generally”. Bernstein argues on his Supreme Court blog that the importance of the Buchanan case is often neglected and undevalued. Richard A. Epstein’s article on constitutional jurisprudence studies Buchanan v. Warley and finds it invaluable in understanding the Progressive Era and the interpretations and consequences of state’s police powers.

There is also surprisingly little written about directly the case itself, although there are some excellent reference sources for the time period. Alexander M. Bickel and Benno C. Schmidt Jr.’s History of the Supreme Court of the United States of America Volume IX: The Judiciary and Responsible Government (2007) provides analysis of the court’s actions. Comer Van Woodward’s The Strange Career of Jim Crow (2001) examines the civil rights movement and its evolution in the context of the Jim Crow era. The only books in the Dickinson College Library with useful information about the Buchanan case are James W. Loewen’s Sundown Towns: A Hidden Dimension of American Racism (2005) and David E. Bernstein’s concise excerpt in Law & Politics: Volume 10, edited by James W. Ely Jr. and Bradley G. Bond.

 Buchanan v. Warley was heard in the Edward Douglass White court, and the decision was written by Justice William Rufus Day. Information about the White court can be found in Walter F. Pratt’s 1999 book, The Supreme Court under Edward Douglass White, 1910-1921. For a source with a more biographical attitude one can examine Robert Baker Highsaw’s 1981 book, Edward Douglas White: Defender of the Conservative Faith. Joseph E. Mclean’s William Rufus Day: Supreme Court Justice from Ohio (1946) is one of the only biographies of Justice Day in existence. There is little written about Justice Day and even less written about the apellant William Warley or the apellee William H. Buchanan.

The other justices on the White Court were Joseph McKenna, Oliver W. Holmes Jr., Willis Van Devanter, Mahlon Pitney, James C. McReynolds, Louis Brandeis, and John H. Clarke. Justice Holmes drafted a dissent but could not find enough support among his fellow justices to deliver it. There are several books about Holmes, the most recent of which is the comprehensive Oliver Wendell Holmes Jr.: The Supreme Court and American Legal Thought (2006) by multiple authors. Melvin Urofsky published Louis D. Brandeis: A Life in 2009, a work that covers Brandeis’ life and legacy in immense detail. There is little recently written about Justices McKenna, Van Devanter, Pitney, McReynolds, or Clarke.

Supreme Court under Chief Justice Fuller (Courtesy of the Smithsonian)

In From Jim Crow to Civil Rights (Oxford, 2004), Klarman uses Williams v. Mississippi (1898) to show how the Supreme Court allowed the southern states to disfranchise blacks. He identifies this case as an opposition to racial discrimination in a time when precedent demonstrated that the Supreme Court did little to defend blacks’ political rights.

Williams v. Mississippi involved a black man named Henry Williams who felt he had been cheated out of a fair trial for murder since none of the jury members were black. Williams disputed jury eligibility in Mississippi of literacy tests and poll taxes, “arguing that they had been adopted for a discriminatory purpose and that they conferred unbridled discretion on registrars” (Klarman, 34). The court decided that there was no prejudice against Williams or other blacks in Mississippi’s qualifications for jury members, and that the case lacked any evidence to prove so.

Klarman identifies the rejection of legislative motive as the most important aspect of Williams v. Mississippi. He points to precedent as the reasoning behind the Supreme Court decision as well as “standard of proof,” a level that no black would conceivably achieve during the Plessy-era (Klarman, 36). Ultimately, Klarman sees no real significance to the decision of Williams v. Mississippi because a number of states had already disfranchised blacks, and regardless of the court’s opinion, they would have continued (Klarman, 52-53).

Melville Fuller, acted as the Chief Justice in this case, as well as in the pivotal case of blacks’ rights in Plessy v. Ferguson (1896), and Joseph McKenna wrote the majority opinion. An extensive biography of Fuller, The Chief Justiceship of Melville W. Fuller, 1888-1910 (South Carolina, 1995), by James W. Ely, mentions the feelings of the justices on the case as well as information about Justice Joseph McKenna. In his profile of the case, Ely implies that the justices did not give Williams’ challenge any chance, signifying the view of the court at this time.

For basic background information on disfranchisement, Race and the Jury: Racial Disenfranchisement and the Search for Justice (Plenum Press, 1993) by Hiroshi Fukurai is available in the Dickinson library. There is no significant or recent material on this case in the library, or of Fuller, McKenna, or Williams.

Possibly the best source on this case is the very recent book, Defying Disfranchisement: Black Voting Rights Activism in the Jim Crow South, 1890-1908 (Louisiana State, 2010) by R. Volney Riser, a professor at the University of West Alabama. Riser describes Williams v. Mississippi as a “widely cited, little-studied, and much misunderstood case…the capstone decision of the antidisenfranchisment cases’ first stage” (Riser, 55). He digs deep into the case’s context, pointing to other related cases, as well as details of Mississippi laws. Riser offers insight into black objection against discrimination in Williams v. Mississippi that most historians overlook.

As Volney points out, though everyone seems to mention this case, there is not a lot of work done on the details or the significance of the actual case, besides linking it to disfranchisement. Thus, it was difficult to find sources through databases or on Google books. There are many biographies available on Chief Justice Fuller and Justice McKenna, though nothing particularly noteworthy pertaining to Williams v. Mississippi. Neither Fuller nor McKenna’s biographies on American National Biography include any reference to Williams v. Mississippi nor is Henry Williams listed in the database.

Controversies in Minority Voting: The Voting Rights Act in Perspective (Brookings, 1992) by Bernard Grofman and Chandler Davidson is another book, though not very current, that provides some material on the justices of Williams v. Mississippi and how their politics shaped their decision. Grofman and Davidson suggest that Fuller’s Court was even harsher on black political rights than the previous period. “Whatever potential the Waite Court left, the Court under Chief Justice Melville W. Fuller destroyed” (162).

Williams v. Mississippi remains unexplored and underappreciated. Recent works show that historians have begun to pay more attention to the case and how it represents the United States’ government and court views on black political rights as well as the era of black disfranchisement, though many unanswered questions remain.

In From Jim Crow to Civil Rights (New York, 2004) Michael Klarman introduces the Supreme Court decision in Bailey v. Alabama(1908, search through lexis-nexis) as an example of a number of cases that proved controversial considering the oppressive racial context of the time. Klarman asserts that this case challenged the constitutionality of the Thirteenth Amendment as well as indicated that Supreme Court decisions were not always consistent with the national opinion of the time.

Compliments of nps.gov

While Klarman largely focuses his attentions on the cases implications about the Supreme Court and how it makes decisions, scholars like Pete Daniel observe its implications in the context of peonage and the biographical life of Booker T. Washington. In his Pelzer Prize winning article Up from Slavery and Down to Peonage: The Alonzo Bailey Case ( Journal of American History, Vol 57: 1970) Daniel asserts that Booker T. Washington saw Bailey as a symbol of injustice and the tortures of peonage as well as an opportunity to challenge the Alabama Contract Labor Law. In order to understand Bailey v. Alabama and the limitations of Peonage Daniel suggests an examination of Washington’s life and his goals including a belief that fair labor would lead to economic prosperity and therefore full citizenship and equality in American life. However, in order to achieve fair labor it was important to challenge “old legal mechanisms for coercing black labor”(71), as well as new methods such as convict labor.

A more recent and incredibly well received and reviewed investigation of Booker T Washington’s life and involvement in Bailey v. Alabama is a biography by Robert J Norell, Up from History: The Life of Booker T. Washington ( New York 2009, available through Google Books). This book shows the importance of overturning the Alabama Contract Labor Laws as a great step forward for blacks. Washington explained that these laws made it so that “any white man, who cares to charge that a Colored man has promised to work for him and has not done so, or who has gotten money from him and not paid it back, can have the Colored man sent to the chain gang” (406).

The effects of labor laws in this “progressive era”(New York, 2004: 71) are contextualized in Jennifer Roback’s article Southern Labor Law in the Jim Crow Era: Exploitative or Competitive?  This article shows the importance of overturning a Supreme Court decision despite the social political and economic limitations of the time. In the case of Bailey v. Alabama, Alabama state law criminalized Alonzo Bailey for a breach of contract that paid wages in advance.  At this time Alabama state law did not allow defendants  to rebut with a testimony so Bailey was tried and sentenced to 136 days of hard labor or a significantly longer period of service to a white plantation owner.  Bailey with the help of a few judges and the financial and social sway of Booker T Washington challenged the state law because he believed it to be a violation of the Thirteenth Amendment’s prohibition on slavery and involuntary servitude. The Court decision appeared unconstitutional because it made a crime out of a mere departure from service. Ultimately, the Court found the challenged statute unconstitutional and reversed judgement of the State Supreme Court. The reversal in this case was voted on 5-2, Justices Oliver Wendell Holmes and Horace Lurton dissenting.

The White Court: Justices, Rulings, and Legacy ( California, 2004) by Rebecca Shoemaker provide insights into the way the Court operated at the time as well as a background to some of the key judges involved. Additionally, the correspondence between Booker T Washington and Theodore Roosevelt, Alonzo Bailey and various Chief Justices are available though the Library of Congress in the Manuscript Division.

Klarman’s book does provide compelling evidence and context for the case, however when coupled with the sources above a more dynamic story begins to appear. The final dimension to this case can be discovered through archival documentation and primary source research.

In Klarman’s book From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (New York, 2004), the case Cumming v Richmond County Board of Education (1899) is identified as “[t]he Plessy era Court’s only case involving racial inequality in education…” (45). The decision, written by Justice John Harlan, allowed Richmond county to continue to pay for a whites-only high school, and set a precedent for segregation and educational disenfranchisement that lasted over half a century.  The decision reached in this case was only overturned by the landmark Supreme Court case Brown v Board of Education of Topeka (1954).

Justice John Marshall Harlan. Courtesy of the Library of Congress

The case was part of a sweeping movement across the South to disenfranchise African Americans following the end of the Civil War. The case Plessy v Ferguson (1896), which created the concept of ‘separate but equal’, had broad implications to re-segregate African Americans in the South. The school system was a particular target of this re-segregation.  Klarman writes that “[t]he temptation to “rape the Negro School fund” was great and seldom resisted” (45). Southern school districts immediately made efforts to treat black students as poorly as possible, and to keep blacks out of school as much as possible.Some school districts split the tax money based on how much each racial group contributed. Since blacks could only find poor paying jobs, the schools their taxes paid for were not equal to those of white parents. The segregation of Southern schools was key aspect to the South’s attempt to disenfranchise black citizens.

It was under these conditions that Cumming v Richmond County Board of Education (1899) began. The plantiffs, J.W. Cumming, James S. Harper, and John C. Ladeveze argued that the school district had used its funds to create and maintain an all white high school, but had not maintained a high school for black pupils. On July 10^th, 1897, the school board began to deny the right of African Americans to attend high school within the county.  As a result, the plaintiffs believed that the school district violated the “separate but equal” aspect of the Plessy v Ferguson case.  A junction was issued, which claimed that the petitioners did not object to the tax for the elementary and middle school, which still existed, but objected to paying for a whites-only high school.

Though there is little information available for the plaintiffs, their lawyer is well known: George Edmunds, who was born in Virginia but grew up in Vermont, was an antislavery Whig. He served in the Vermont Senate and House before joining the Senate. Throughout his career, he fought for the equality of African Americans. An interesting dissertation, available on JSTOR, on Edmunds was written in 1934 by Selig Adler, a student at the University of Illinois.

Joseph Ganahl and Frank H. Miller both argued for the defense. Very little information is available about them. Joseph Ganahl was the Chairman of the high school committee and the board’s lawyer, according to the Journal of Southern History, Vol. 46, No. 1. In 1915, he was admitted to the Georgia Bar Association. There is no significant biographical information on Miller.

The case was first heard in the Trial Court of Richmond. On December 22, 1897, Judge Callaway of Richmond County heard the case, and ruled for the plaintiffs. The school board immediately appealed the case and sent it to Georgia’s Supreme Court, where the ruling was reversed.  On March 23, 1898, Justice Simmons of the Georgia Supreme court, made a ruling that took Plessy v Ferguson one step further, by claiming that it was acceptable to create separate and unequal facilities for black students.  The plaintiffs appealed and the case went to the Supreme Court of the United States.

The hearing in front of the Supreme Court began on 30 October, 1899, and ended on the 18^th of December.  Unfortunately for the plaintiffs, the spirit of Reconstruction, and the call for blacks to be educated, had died long before their case came to court. After the Civil War ended, the education of blacks became a vital issue for Republican leaders, who forced Southern states to write educational rights into their state constitutions. As time went on and Reconstruction ended, a growing number of southerners argued against the idea of blacks receiving an education. As such, the verdict handed down by the Supreme Court was consistent with most Supreme Court rulings since Plessy. In a 9-0 decision, the Court upheld the ruling of the Georgia Supreme Court, and allowed the county of Richmond to continue to provide whites only education without separate facilities for blacks.

Justice Harlan, the only dissenting justice in Plessy, wrote for the court.. He accepted that the state had suspended black education for economic and not racist reasons, and in doing so provided a clear loophole for the South to segregate its education system as it saw fit. There are two relatively recent biographies on Harlan from the 1990s. The most recent is Insley E. Yarbrough, Judicial Enigma: The First Justice Harlan (1995). An earlier one is Loren P. Beth, John Marshall Harlan: The Last Whig Justice (1992).

Other Justices serving on the court at the time were: Chief Justice Melville Fuller, David Brewer, Henry Brown, George Shiras, Edward White, Rufus Peckham, Joseph McKenna, and Horace Gray. They all sided with the Richmond County School District.

There is a significant amount of information available about Cumming in literature. The book Separate But Not Equal: The Supreme Court’s first decision on discrimination in schools by J. Morgan Kousser (1978), gives a detailed account of the case. Additionally, Benno C. Schmidt’s article Principle and Prejudice: The Supreme Court and Race in the Progressive Era. Part 1: The Heyday of Jim Crow is available on JSTOR. Finally, James D. Anderson’s The education of Blacks in the South, 1860-1935 gives an overview of black education from the Civil War to the Great

Declaration of martial law. Contained in Arthur Mowry's Dorr War: or, The Consitutional Conflict in Rhode Island (1901), p. 225

In Lincoln’s Constitution (2003) Daniel Farber prefaces his discussion of martial (or military) law and its use during the Civil War with the Supreme Court case that assured its legitimacy – Luther v. Borden (1849) (148-9). (The case documents are available through Cornell University’s Law School Legal Information Institute.) Luther raised several questions about how the Constitution evaluated the governments of individual states and the ability of those governments to interfere with civil liberties in times of crisis.

Much of the historiography, described below, places the case as the starting point for later decisions on the subject. In order to understand discussion of the case, many analyses discussed only one of the two main questions it addresses. The first dealt primarily with the “Guarantee Clause” of the Constitution (Article IV, Section 4) and the Supreme Court’s ability to review its guarantee for “a Republican Form of Government” in every state. The second revolved around the evolution of martial law and the Court’s ruling on its legitimacy. These questions, and the case itself, developed out of escalating political turmoil developing among Rhode Island’s citizens.

In 1841, a group of nearly four thousand individuals in Rhode Island led by Thomas Dorr moved to establish a “People’s Constitution” that addressed several grievances held against the state government. Their position pointed specifically to the charter’s provisions granting suffrage only to land-owning classes and contained no process for ratifying amendments. Their new government soon clashed with the charter government, led by Governor Samuel Ward King, who responded to the armed members of the “Dorr War” or rebellion with a call for martial law. Three days after declaring martial law, state officials broke into the home of Martin Luther, one of Dorr’s supporters, and arrested him without a warrant. By October 1842, Luther had filed an “action of trespass” in the circuit court of Rhode Island (Case Syllabus, 2). The circuit court ruled that the defendants were justified in their actions, as they occurred after and fit within the declaration of martial law. When the parties presented their case before the Supreme Court in 1848, it became immediately apparent to Chief Justice Roger Brooke Taney that this case sought answers to questions that were “not such as commonly arise in an action of trespass” (35).

The first of these questions pertained to justiciability, or the ability for the Court to rule on the case. This became applicable, as Taney elaborated in the Court’s opinion, to the decision to rule that “the charter government [of Rhode Island] had no legal existence” during the breaking and entering of Luther’s home (38). Dorr’s supporters grounded their arguments on this basis, for since their new government replaced the charter government, the latter had no legal right to call for martial law. Taney avoided the issue of giving credence or dismissing Dorr’s popularly supported government (which “must remain unsettled and open to dispute”) and instead reinforced that determining the validity of one government over another “rests with Congress” (42).

Luther and this opinion composed by Taney established much of the thesis presented by William Wiecek, now a law professor at Syracuse University, in The Guarantee Clause Of The U.S. Constitution (1972). Though some believe he offered “little instruction” in the work, many others found his approach to the subject useful and especially mindful of the implications embedded in the Luther case as it broadly applied to interpretations of the Constitution.

Second, Luther’s support of martial law remains pertinent to Farber’s argument that it set the “basic rule” for future decisions on the subject (151). This occurred despite the clear tension between Taney’s leading opinion of the Court and the dissent presented by Justice Levi Woodbury. The disagreement on martial law came down to the preservation of individual rights guaranteed by the Constitution. Taney remained resolute in that martial law provided a necessary and temporary protection against insurrections without reducing “order and free institutions” to a “mere parade” that encouraged instability (46). Woodbury agreed with Taney that the issue of governance better suited Congress, but he offered firm opposition against the “unusual course” of martial law (59). The violence in Rhode Island at the hand of Dorr’s new government failed to convince Woodbury that state officials could rightly claim such “tremendous power” over the inherent rights of citizens (70). The majority opinion did not agree, and the Court thus upheld the circuit court’s ruling that the defendant’s properly justified their actions against Luther with a 5-3 vote (with one abstention).

Analyses of Luther v. Borden dedicate much time to the Dorr rebellion as context for the case. In the early publications including Arthur Mowry’s The Dorr War, or The Constitutional Struggle in Rhode Island (1901) (available to view on Google Books), the case acted as part of the narrative for Dorr’s failed rebellion but lasting impact on the nature of future Supreme Court decisions. The case did not receive any more or less coverage later on. The two oft-cited publications on the subject remain George Dennison’s The Dorr War: Republicanism on Trial, 1831–1861 (1976) and Marvin Gettleman’s The Door Rebellion: A Study in American Radicalism, 1833-1849 (1973) (The latter is available in the Dickinson College library.) While not without criticisms, both publications provide an appropriate background to the case as it fit within the narrative of events in Rhode Island.

Farber offers a more recent approach to the case which, though not comprehensive or detailed, noted its application in the evolution of martial law as shaped by the Supreme Court. In his concluding paragraphs, Farber added another interesting perspective on Luther as it reflected broadly on the changing views of Chief Justice Taney from legitimizing martial law to resisting its implementation by Abraham Lincoln (199). The nation felt the ramifications of the decision after it assured this executive power, and it still does today, albeit in different forms.

President Lincoln, Courtesy of the Library of Congress

In Lincoln’s Constitution (Chicago, 2003), Daniel Farber addresses the 1863 Prize Cases and argues, “Lincoln acted appropriately” in regard to the Supreme Courts question of the constitutionality of Lincolns’ blockade order (142).  

 The Prize Cases (1863) questioned whether President Abraham Lincoln acted within his presidential powers, defined by Article II of the Constitution, when he ordered the blockade of Southern ports, thus authorizing the seizer of  ‘enemy’ ships. April 19, 1861, Lincoln proclaimed a blockade of all deep Southern ports and soon after extended the blockade to seceding upper Southern states. Lincoln issued the blockade on the basis of “unlawful proceedings” (succession from the Union) as well as actions of warfare “under authorities of the States of Virginia and North Carolina.” Farber notes the seizers of the Army Warwick, the British ship Hiawatha and the Mexican Brilliante under the blockade issued by Lincoln (139). Republished in 2009 by BiblioLife, Prize Cases Decided in the United States Supreme Court, 1789-1918 (originally published in 1923), by James Brown Scott, examines the specific cases of each ship, including the Crenshaw, not mentioned by Farber. In a close vote of five-to-four, Taney’s court ruled the president possessed the power to use military action without Congressional authorization in the case of national emergencies. After the firing on Fort Sumter, April 12^th 1961, in reality a state of war existed, obligating Lincoln “to meet it [the rebellion] in the shape it presented itself, without waiting for Congress to baptize it with a name”(140).

Farber focuses heavily on Lincolns ability to recognize the existing state of war and his responsibility to “meet the adversary upon land and water with all force of the government” (141). One problem with Farbers description of the Prize Cases lies in his emphasis on the opinion of the court and his neglect to explore the courts minority vote.

 Farber cites David P. Curries 1985, The Constitution in the Supreme Court: The First Hundred Years. In a chapter entitled, “The Prize Cases” Currie critiques the majority opinion of the court, finding the opinion uninspiring. In a 1986 review published in The Journal of American History, scholar Francis N. Stiets, describes the book as highly general, but notes the quality of Currie’s analysis and fastidious footnotes. Steits’ review can be found on JSTOR and Curries book can be found in the Dickinson College library. 

The opinion of the court, written by Justice Robert Cooper Greir (Dickinson College, Class of 1814), can be found in many places on the Internet. One of the most highly sighted being the Cornell University Law School’s Legal Information Institute. The site includes the Supreme Courts case syllabus, Greir’s opinion, as well as that of the dissenting. The court’s dissent, written by Justice Samuel Nelson and supported by Chief Justice Taney, concludes that “no civil war existed between this Government and the States in insurrection till recognized by the Act of Congress 13th of July, 1861”(67 U.S. 635, Prize Cases).

Chief Justice Taney, Courtesy of the Library of Congress

Chief Justice Roger Brooke Taney (Dickinson College, Class of 1795) clashed with Lincoln in regards to the presidents’ constitutional war powers.  In his recent publication, NYU law professor, James F. Simon evaluates Lincoln and Taney’s dynamic constitutional disputes. Simons Lincoln and Chief Justice Taney: Slavery, Secession, and the President’s War Powers (2007) can be found in the Dickinson College Library. While Simons provides adequate information on Taney’s views of presidential wartime powers, his lack of conventional footnote makes his research difficult to follow. The work is generally well received and described by many scholars as being written for the general public.

Daniel Farber describes the precedent set by the Prize Cases in determining future cases questioning presidential wartime powers, citing The War Powers Resolution of 1973 as an example.  Since the 2001 terrorists’ attacks there have been many instances where the use of presidential power has been subject to criticism. A review of The War Time Resolution, by the Congressional Research Service, examines the use of presidential war powers between 1973 and 2004. The CRS, like many contemporaries, consent with the majority argument made by Taneys court on the Prize Cases, agreeing with and trusting in the presidential authority to respond with force to national threats.

Justice Stephen J. Field: Original image from the Library of Congress; Digital Copy Courtesy of House Divided Project

Daniel Farber calls it “colorful enough to make a good movie script”, and indeed the court case Cunningham v. Neagle (1890) mentioned in Lincoln’s Constitution (Chicago, 2003) has the characteristics fit for a drama (133). Nevertheless, the case covers the extent of the executive branch’s “protective power” over state courts concerning the writ of habeas corpus. This was done to prevent the murder trial of U.S. Marshal David Neagle in California.

Cunningham v. Neagle controversial in its era, involves an incident where Supreme Court Justice Stephen Field was attacked by David Terry and Sarah Terry in a train heading towards San Francisco. Due to previous threats on Field’s life, he appointed U.S. Marshal David Neagle to protect him. David Terry had struck Justice Field in the head twice knocking him to the ground, when Neagle shot and killed Terry in order to protect the judge. The Daily Alta California on Wednesday, April 15, 1890 reports Sheriff Cunningham sent Neagle to jail and tried for murder in the state court. Neagle asked for federal habeas corpus as a way to prevent the trial.  Ultimately, Neagle was released on Justice Millers claim that the evidence, “[was] abundant that both Terry and his wife contemplated some attack upon Justice Field.” The court decision gave Neagle his freedom on the claim that he did his rightful duty as his protector and “assured that the nation’s laws would be faithfully executed.” A clear and detailed commentary concerning the court case and its outcome can be found in databases such as Lexis-Nexis (135 U.S. 1).

Paul Kens in, Justice Stephen Field: Shaping Liberty from the Gold Rush to the Gilded Age (University Press of Kansas, 1997) has biographical resources as well as Field’s legal history, providing a detailed account of the In re Neagle case, one of the few books focusing on Justice Field’s historical legacy rather than judicial career. Clare Vernon McKanna in, Race and Homicide in nineteenth- century California (University of Nevada Press, 2002) has a small focus on the case by looking at the attack through a 19th century perspective on the violent act committed by David Terry. However, all these book only give a small dedication to the scandalous aspects of the case, as it is wrapped around other, larger themes.

However, one of the few authors that focuses on the judicial importance of the court case is Dow Votaw’s article in the Western Political Quarterly (University of Utah). He defines the importance of In re Neagle as a form of preservation and strict enforcement of judicial law and executive power rights from the president. This court decision shaped the role of federal officers after a,”long saga of dueling, assault, voodoo, litigation, and attempted assassination that stretched over more than thirty years of the nineteenth century ” by state government against national government (948).

After a release of David Neagle by Justice Miller and Sawyer (with dissenting views from Justices Lamar and Fuller), the power to protect courts, judges and federal officers denied state courts the power to jail or arrest federal employees all the while defining and reinforcing the presidents protective powers.

This proved an incredible feat for Congress and the executive branch. By justifying Neagle’s actions, Congress had a right to the protection of Supreme Court Justices. Since judges symbolize upholders of the law, jeopardizing their lives also threatens Constitutional law. It exemplified U.S. Marshal Neagle’s actions as heroic and an act of duty, not an act of murder.

Chief Justice Taney (Courtesy of Wikipedia)

In Lincoln’s Constitution (Chicago, 2003), Daniel Farber distinguishes Ex Parte Merryman (1861) as the most influential case concerning the suspension of individual rights during the Civil War. According to Farber, Merryman showcased Chief Justice Taney as Lincoln’s rival and “vehement critic of Lincoln’s use of executive power” (119).

In his discussion of Merryman, Farber identifies the question of presidential power, particularly Lincoln’s authority over constitutional law and the rulings of the Supreme Court as the most important aspects of the case. In addition, he clearly points out Taney’s dislike for Lincoln and their tense relationship. Farber notes that “Taney’s cramped view of presidential power was extreme,” (119) but also recognizes Lincoln’s actions as controversial. Farber uses Merryman as an example of the negative reactions to Lincoln revoking the writ of habeas corpus, as he saw it as the most disputed use of executive power.

Merryman came to the Supreme Court in 1861 when John Merryman was arrested for treachery in Maryland. He was accused of destroying bridges and assisting the confederate troops, and was taken into custody without an opportunity for a trial. Appealing to Taney, the Chief Justice ordered him to come to court, but the marshal refused his appearance, claiming to follow Lincoln’s order against habeas corpus. Taney expressed his fury in an opinion outlining his thoughts on why Lincoln’s actions were unconstitutional and beyond his authority as president. Taney was particularly upset that Lincoln felt entitled to ignore his decision as Chief Justice to bring Merryman to court.

Chief Justice Roger Brooke Taney, described as “that old Jacksonian” (119) by Farber, emerged as one of the most important people involved in the Merryman case. Continually opposed to Lincoln’s politics including the Emancipation Proclamation, Taney looked for ways to show his disapproval of the president. Merryman was another opportunity for Taney to express his distaste for the Lincoln (ANB). There are several books available in the library on this Dickinson graduate including Without Fear or Favor: A Biography of Chief Justice Roger Brooke Taney (Houghton Mifflin, 1965) by H. Walker Lewis, and Life of Roger Brooke Taney: Chief Justice of the United States Supreme Court (Williams & Wilkins, 1922) by Bernard Christian Steiner, however none of these are very recent. Taney’s opinion on Merryman is also accessible in the library.

Though Farber touches on the tense relationship between Lincoln and Taney, he focuses mostly on whether Lincoln had the constitutional right to block habeas corpus while recent historians have explored their conflicting personal issues, and how this case brought them into an even greater rivalry.

Georgetown Law professor, Arthur T. Downey examines the friction between Taney and Lincoln in “The Conflict between the Chief Justice and the Chief Executive: Ex Parte Merryman” (America: History and Life). In his article he offers details of the case, the people of the case, Lincoln and Taney’s reactions, and the overall significance of the case. His article is helpful in understanding both sides of the argument, and the reasoning behind Taney and Lincoln’s opposing positions.

A widely reviewed and recent book, and also available in the library, Lincoln and Chief Justice Taney: Slavery, Secession, and the President’s War Powers (Simon & Schuster, 2006) by James F. Simon, a law Professor at NYU, covers their political clashing starting with Dred Scott in 1857. Simon’s work offers the most informative and recent work on Taney’s life. Brian McGinty’s Lincoln and the Court (Harvard, 2009) also explores the reasons for the contention between Taney and Lincoln.

Though John Merryman lends his name to this monumental case, he is not that important to understanding its significance. There is little information on him other than the details pertinent to the case, which is available in most sources discussing Merryman. For necessary background, the Federal Judicial Center website supplies a short biography on him.

There are countless sources on Abraham Lincoln. Some most germane to this case include the ones already mentioned and William H. Rehnquist’s All the Laws But One: Civil Liberties in Wartime (Random House, 2000). As a chief justice, Rehnquist offers an interesting view on Lincoln’s presidential power and the Supreme Court. The Dickinson library also provides many sources on Lincoln, his life, presidency, and his behavior during the Civil War.

Farber’s presentation of Merryman is a starting point explaining how Taney thought Lincoln acted unconstitutionally by suspending habeas corpus. By supplementing Farber’s views with information on Chief Justice Chaney and President Lincoln, a historically complicated and distasteful relationship becomes clear.