race in the 19th century; did the 1875 Act make blacks "special favorites"/

Finkelman, Paul <paul.finkelman@albanylaw.edu> Paul.Finkelman at albanylaw.edu
Sun Dec 18 20:38:54 PST 2011

Rosemary and David are of course absolutely correct about the use of race in the 19th and early 20th century.  This is all very well known to historians of race and ethnicity. 

But, it is not at all clear that Congress in 1875 was thinking in terms of ethnicity when it used race.  Remember the context.  There had not been much Irish immigration since the 1850s and the vast discrimination against Irish had waned. The huge waves of Scandinavian, Eastern European, Southern European, and Ottoman immigration had not yet started.  With the exception of the Chinese, there were virtually no Asians in the US and almost all Chinese on the West Coast.   There were fewer than 100 Japanese in the country, and they were mostly students.   Except for African Americans (more than 90 per sent of whole lived in the South, and 90 percent or more were ex slaves of their children) the US was overwhelmingly populated by people from the British Isles, Germany, and northwestern Europe.  Except for Irish and some German immigrations (and a few pockets of people of French or Spanish ancestry) the nation was predominantly Protestant.  There were few Indians in the US, mostly in the western territories or on reservations, isolated, cut out of the political process, and mostly ignored by Congress.

The nation had just found a civil war -- with some 630,000 deaths (the equivalent for the modern US of about 6.5 million people!) -- that everyone knew that slavery was the cause of the War.  The South seceded to protect slavery (go read the secession declarations of the Confederacy if you doubt me), and in the end the North turned the War into a crusade against slavery.

Slavery was racial -- pure and simple -- for most Americans.  Race meant black and white.  Whatever we might make the 1875 act mean today, in 1875 I think it would be hard to find very many people (anyone?) in Congress, or any where else, arguing that the 1875 act, like the 1866, was about protecting the Civil Rights of whites.  De Jure segregation was rising in the South and not uncommon in some parts of the North (although is was also illegal in some parts of the North).  Congress passed the law to protect blacks from discrimination.  

In 1883 the Court simply wrote off the issue of civil rights for blacks.  This case is not  about some complicated claim of equal protection because whites were not protected.  This is about a Court overwhelmingly tired of race, overwhelming unsympathetic to the rights of black people and more than willing to turn the issue of race by the to the southern states.  I have no doubt that the sitting in Washington, DC, a southern city, helped shape the minds of the Court.  The Court was not interest in the rights of blacks, and cynically said the should stop being the "special favorites of the laws" when the South was working very hard to make them the special victims of the law.  The cynical nature of the Court, and its bold faced racism, would be clear in the line of cases from U.S. v. Reese (1876)  to Williams v. Mississippi (1898) and Berea College (1908).  For example, it is impossible to explain the outcomes in Hall v. DeCuir (1878) and Louisville,New Orleans and Texas Railway Co. v. Mississippi (1890) except as an example of the Court's overwhelming hostility to blacks.

It is is worth noting that immediately after the decision in the Civil Rights Cases (a883) most northern states passed their own equal accommodation laws to protect black civil rights.  By 1900 almost every state that had not been a slave state or territory in 1861 had passed such laws.  (I describe many of these laws in:  "Civil Rights in Historical Context:  In Defense of Brown," 118 HARVARD LAW REVIEW 973-1027 (2005).

I apologize for the length of this post.

Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkelman at albanylaw.edu
From: conlawprof-bounces at lists.ucla.edu [conlawprof-bounces at lists.ucla.edu] on behalf of Rosemary Salomone [salomonr at stjohns.edu]
Sent: Sunday, December 18, 2011 11:08 PM
To: conlawprof at lists.ucla.edu
Subject: RE: race in the 19th century;  did the 1875 Act make blacks "special   favorites"/

The confluence of race and ethnicity (as we now consider the latter term) continued well into the 20th century. A 42 volume federal immigration report presented to Congress in 1911 (Dillingham Report) identified 45 races of peoples among the immigrants, 36 indigenous to Europe. It claimed to use "race" in the broad sense of language and geography, yet its Dictionary of the Races or Peoples presented a shocking taxonomy of physical, intellectual, and attitudinal "differences" suggesting a hierarchy of individual worth.

Following up on David Forte's posting, whereas my grandfather's naturalization certificate from 1932 separately designated his "race" as "Italian (So.), the north-south distinction being "racially" significant, his "color" as "white," and his "former nationality" as "Italian," noticeably absent from my grandmother's certificate in 1949 was any mention of race, color, or region. It merely stated her "former nationality" as Italian. And while my grandmother was of noticeably darker skin tone than my grandfather, the immigration clerk who happened to have an Italian surname deemed that she too was of "fair complexion." Examining these documents for the first time brought to mind writer Louise DiSalvo's similar observations regarding her own Italian grandmother's naturalization papers issued during World War II. By that time, race had disappeared from the certificate yet her grandmother was still designated as "white" of "color" and "dark" of "complexion" despite her very fair s!
 kin which was clear from the photo appended to the document. Apparently the nuances of skin color were in the eyes of the immigration clerk while the applicant unquestionably certified that the "description above" was "true." These gradual changes in the certificate from pre-World War II, to wartime, to post-war no doubt reflected a progressively changed attitude on the part of the government. White "ethnics" had officially shed their "probationary white" or "in-between" status. Concepts of race and color had been redefined for better or worse. For immigration purposes at least, the notion of "nationality" remained while "race" and its lingering pseudo-scientific implications of cultural and cognitive determinism had fallen from the official lexicon.

Rosemary Salomone
Kenneth Wang Professor of Law
St. John's University
School of Law
8000 Utopia Parkway
Jamaica, N.Y. 11439
(718) 990-6622
salomonr at stjohns.edu
Website: http://stjohns.edu/academics/graduate/law/faculty/profiles/Salomone
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