upland counties would remain a minority in the State legislatures.20

Poor-white antipathy toward the Negro, always high, was increased by these tactics, and was encouraged by the agrarian demagogues of the 1880's. When agricultural and laboring interests finally united in a "Populist" movement under leaders like "Pitchfork" Ben Tillman of South Carolina, and wrested control of the Democratic Party from the patricians in the 1890's, racial antagonisms had reached a new height. Exclusion of the Negro from the political process was no longer considered sufficient to keep him at the bottom of the social ladder. Racial disabilities would be extended into all forms of social intercourse by the new generation of political leaders. According to Woodward, "the barriers of racial discrimination mounted in direct ratio with the tide of political democracy among whites.” 27

The Jim Crow Laws

The Black Codes had attempted, by defining the rights of the newly freed Negroes, concomitantly to limit them. The purpose of Jim Crow legislation was to maintain a separation between whites and Negroes in the use of certain public facilities.

28

There had been some segregation, both in law and practice, during Reconstruction and in the following decade. But it was not nearly as extensive in the early years as it later became. From its post-Civil War beginnings, the South's public school system had, with few exceptions, been segregated. The armed services were segregated during the Civil War and continued to be segregated thereafter. The first State segregation legislation, requiring segregation on public

26 Simkins, op. cit. supra note 22, at 348.

27 Woodward, op. cit. supra note 24, at 211.

28 Woodward, The Strange Career of Jim Crow 23 (1957).

carriers, was enacted by Mississippi and Florida in 1865. Texas followed in 1866, but repealed its act 5 years later.

A Tennessee law of 1881, sometimes referred to as the first "Jim Crow" law, directed railroad companies to provide separate cars or portions of cars for first-class Negro passengers, instead of relegating them to second-class accommodations as had been the custom.29 By 1894, the five Southern States of Louisiana, Alabama, Arkansas, Georgia, and Kentucky had joined Tennessee, though not without substantial opposition by some Negroes and sympathetic whites." In 1898, South Carolina passed a law segregating Negroes and whites on railroads. In 1899 and 1900, North Carolina and Virginia enacted similar legislation. By the time Oklahoma entered the Union in 1907, segregation laws had been enacted throughout the South. Added to the expanding roster of places in which segregation became mandatory were waiting rooms, theaters, boardinghouses, water fountains, ticket windows, streetcars, penitentiaries, county jails, convict camps, institutions for the blind and deaf, and hospitals for the insane.82

Supreme Court Reaction

Even before the radical leadership of Congress had completed its legislative program that culminated in the Civil Rights Act of 1875, the Supreme Court of the United States had begun to restrict the scope of the 14th amendment.

Ironically, the first decision of major impact did not involve Negroes but a slaughterhouse that had been granted a

29 Laws of Tenn., ch. CLV, p. 211 (1881).

30 For example, in Arkansas a Negro member of the House sought to ridicule the bill's supporters by insisting that, if whites did not want to associate with Negroes, there should be laws to divide the streets and sidewalks so that Negroes could go on one side and white people on the other. (Little Rock) Arkansas Gazette, Feb. 14, 1891, p. 6. 31 Woodward, op. cit. supra note 28, at 81-82.

82 Id. at 83-84. See discussion of Plessy v. Ferguson, note 51, infra.

charter by the Louisiana legislature together with the exclusive privilege of slaughtering animals in the New Orleans area. Incensed local butchers brought suit claiming the action of the Louisiana Legislature violated the privileges and immunities, due process and equal protection clauses of the 14th amendment.

The Supreme Court, in its 1873 opinion in the SlaughterHouse Cases, upheld the action of the Louisiana Legislature.** Mr. Justice Miller, speaking for the majority, asserted that the equal protection clause of the 14th amendment probably afforded protection only against racial discrimination directed against the newly freed Negroes." The Court's construction of the privileges and immunities clause was of little benefit to the Negro. It found that only the vaguely defined privileges of national citizenship were protected by the clause. The fundamental rights of the citizen in his relationship to his community were found to be beyond the reach of the privileges and immunities clause. There is little doubt that this narrow interpretation was in direct contradiction to the intentions of the framers of the clause, but there is also little doubt that the Supreme Court was becoming attuned to the changing temper of the times.

35

36

In 1875, the Supreme Court heard arguments in the cases of United States v. Cruikshank and United States v. Reese. The Cruikshank case involved a test of the conspiracy section of the Enforcement Act of 1870, part of the Reconstruction legislation designed to implement the 14th and 15th amendments. That section provided:

That if two or more persons shall band or conspire together, or go in disguise upon the public highway,

33 Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873).

34 Id. at 80-81.

35 Id. at 74-75

86

2 Warren, The Supreme Court in United States History 539-41 (1926).

or upon the premises of another, with intent to violate
any provision of this Act, or to injure, oppress,
threaten or intimidate any citizen, with intent to pre-
vent or hinder his free exercise and enjoyment of any
right or privilege granted or secured to him by the
Constitution or laws of the United States, or because
of his having exercised the same, such persons shall
be held guilty of felony . .

Cruikshank and others had been convicted of "banding" and "conspiring together" to intimidate Negroes from the free exercise of their "right and privilege" to peaceably assemble for lawful purposes. Applying the Slaughter-House rationale, Chief Justice Waite, in 1876, held that the phrase "right or privilege" in the statute referred to rights and privileges incident to national citizenship. The right "peaceably to assemble for lawful purposes" anteceded the United States Constitution and is not derivative from it, reasoned the Chief Justice. As distinguished from the first amendment guarantee of "the right . peacefully to assemble, and to petition the Government for a redress of grievances," the more general right "peaceably to assemble for lawful purposes" is secured to individuals in their capacity as citizens of States, not in their capacity as citizens of the United States. Therefore Cruikshank had not so acted as to deprive persons of a "right or privilege" under the Constitution." In the Reese case, the Court struck down two provisions of the act relating to voting rights under the 15th amendment. It ruled that Congress should have limited its legislation under the amendment to State interference based on race, color, or previous condition of servitude. Since the sections of the statute were phrased broadly enough to cover any type of discrimination, they were found to be unconsti

88

tutional. Concerning the purpose and meaning of the amendment, the Court said:

39

The Fifteenth Amendment does not confer the right of suffrage upon anyone. It prevents the States, or the United States, however, from giving preference, in this particular, to one citizen of the United States over another on account of race, color, or previous condition of servitude.

Thus the Court found that the act of 1870 would not support a prosecution of State officials for preventing a qualified Negro from voting. While the words of the Court in the Reese case would seem to open the floodgate of disfranchisement by whim of local voting officials, some few years later, in Ex parte Yarbrough, the Court found that the 15th amendment "substantially confer[s] on the negro the right to vote, and Congress has the power to protect and enforce that right."

99 40

The "Ku Klux Klan Act" of 1871 was substantially weakened by the Court in 1883, when it held that the 14th amendment had not authorized congressional action against such private activities."

41

That the Civil Rights Act of 1875 would ultimately be tested in the courts was a foregone conclusion. Five cases challenging the act came before the Supreme Court in October 1883. Only one, which involved the use of a parlor car by a Negro in Tennessee, came from the area of the former Confederate States.2 The Court found that the sections

39 Id. at 217.

40 110 U.S. 651, 665 (1884).

41 United States v. Harris, 106 U.S. 629 (1883).

42 Other cases involved incidents in Mo., Calif., Kans., and N.Y., and they ranged from the denial of hotel accommodations to Negroes to the refusal to seat them in the dress circle of a theater. The Civil Rights Cases, 109 U.S. 3 (1883).