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Rights, Dignity, and Public Accommodations

Published online by Cambridge University Press:  30 October 2020

Christopher W. Schmidt
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Abstract

In this essay I consider why debates over applying anti-discrimination norms to public accommodations have long been, and remain today, such a resilient presence in the history of the United States. I use as my starting point the most famous iteration of this phenomenon, the national debate sparked by the 1960 sit-in movement and culminating in the passage of the Civil Rights Act of 1964, which banned racial discrimination in public accommodations across the nation. The battle over racial discrimination and public accommodations in the early 1960s illuminates the moral issue at the heart of the issue, the lines of argument that characterize the debate over how to define legal rights in this area, and the ways in which different legal institutions have resolved, or failed to resolve, the issue. I then move backward time, highlighting the continuities between this episode and the struggle over race and public accommodations during Reconstruction. The history of the civil rights era provides a useful framework to analyze the terms of debate from a century earlier, and it provides particular insights into the significance of the concept of public rights that Rebecca Scott has so effectively brought to our attention.

Type
Invited Article
Information
Law and History Review , Volume 38 , Issue 3 , August 2020 , pp. 599 - 619
Copyright
Copyright © the American Society for Legal History, Inc. 2020

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Footnotes

He thanks Amy Chazkel and Gautham Rao for inviting him to participate in this symposium and Rebecca Scott for offering such helpful feedback on this essay.

References

1. Scott, Rebecca J., “Discerning a Dignitary Offense: The Concept of Equal ‘Public Rights’ during Reconstruction,” Law and History Review 38 (2020): 519–53Google Scholar; and Scott, Rebecca J., “Public Rights, Social Equality, and the Conceptual Roots of the Plessy Challenge,” Michigan Law Review 106 (2008): 777–804Google Scholar.

2. Schmidt, Christopher W., The Sit-Ins: Protest and Legal Change in the Civil Rights Era (Chicago: University of Chicago Press, 2018)CrossRefGoogle Scholar; and Schmidt, Christopher W., “Divided by Law: The Sit-Ins and the Role of the Courts in the Civil Rights Movement,” Law and History Review 33 (2015): 93–149CrossRefGoogle Scholar.

3. See, for example, Masterpiece Cakeshop v. Colo. Civil Rights Comm'n, 584 U.S. __, 138 S. Ct. 1719 (2017).

4. On the history of the sit-in movement, see Schmidt, Sit-Ins, ch. 1; Christopher W. Schmidt, “The Sit-In Movement,” in The Oxford Research Encyclopedia of American History (2018), http://oxfordre.com/americanhistory/view/10.1093/acrefore/9780199329175.001.0001/acrefore-9780199329175-e-445 (accessed July 27, 2020); Tomiko Brown-Nagin, Courage to Dissent: Atlanta and the Long History of the Civil Rights Movement (New York: Oxford University Press, 2011), ch. 6–7; William H. Chafe, Civilities and Civil Rights: Greensboro, North Carolina, and the Black Struggle for Freedom (New York: Oxford University Press, 1980), 79–101; and Aldon D. Morris, The Origins of the Civil Rights Movement: Black Communities Organizing for Change (New York: Free Press, 1984), 188–215.

5. See generally Schmidt, Sit-Ins.

6. Although I have been unable to find any relevant opinion polling conducted during the sit-in movement, a national poll taken in June 1961, directly following the Freedom Rides, found that a majority of respondents believed “‘sit-ins’ at lunch counters, ‘Freedom Buses’ and other demonstrations by Negroes will hurt … the Negro's chance of being integrated in the South.” Hazel Gaudet Erskine, “The Polls: Race Relations,” Public Opinion Quarterly 26 (1962): 137–48, at 145. I consider in detail the scope and nature of outside support for the students’ cause in Schmidt, Sit-Ins, ch. 3.

7. “How Whites Feel about Negroes: A Painful American Dilemma,” Newsweek, October 21, 1963, 45 (finding 79% white support for equal access to restaurants).

8. Charles Whalen and Barbara Whalen, The Longest Debate: A Legislative History of the 1964 Civil Rights Act (Cabin John, MD/Washington, DC: Seven Locks Press, 1985), 155; Louis Harris, “South Joins Opposition To Rights Bill Filibuster,” Wall Street Journal, April 27, 1964, A1; Bell v. Maryland, 378 U.S. 226, 284 (1964) (opinion of Douglas, J.) (appendix listing state public accommodations laws); and “Survey Shows Rights Laws Now Cover 65% of Nation,” Washington Post, December 26, 1963, A17.

9. Schmidt, Sit-Ins, 175–78.

10. See, for example, Garner v. Louisiana, 368 U.S. 157 (1961); Taylor v. Louisiana, 370 U.S. 154 (1962); Peterson v. Greenville, 373 U.S. 244 (1963); Shuttlesworth v. Birmingham, 373 U.S. 262 (1963); Lombard v. Louisiana, 373 U.S. 267 (1963); Gober v. City of Birmingham, 373 U.S. 374 (1963); Avent v. North Carolina, 373 U.S. 375 (1963); Barr v. City of Columbia, 378 U.S. 146 (1964); Robinson v. Florida, 378 U.S. 153 (1964); Bouie v. City of Columbia, 378 U.S. 347 (1964); and Bell v. Maryland, 379 U.S. 226 (1964).

11. See generally Schmidt, Sit-Ins, ch. 5; and Christopher W. Schmidt, “The Sit-In Cases: Explaining the Great Aberration of the Warren Court,” Journal of Supreme Court History 43 (2018): 294–320.

12. Black draft opinion for the Court, No. 12: Bell v. Maryland, March 12, 1964, reprinted in Bernard Schwartz, The Unpublished Opinions of the Warren Court (New York: Oxford University Press, 1985), 149–63, quotation at 160–61.

13. Douglas, draft dissent, No. 60: Robinson v. Florida, 1, 6, March 11, 1964, William O. Douglas Papers, Washington, DC, Library of Congress, Manuscript Division, Box 1314, Folder: “No. 12 – Bell v. Maryland: Galley Proofs-2.”

14. Bell v. Maryland, 378 U.S. 226 (1964).

15. Hamm v. City of Rock Hill, 379 U.S. 306 (1964).

16. Section One of the Fourteenth Amendment reads in relevant part: “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” (emphasis added). The seminal articulation of the state action doctrine in the Supreme Court is found in the Civil Rights Cases, 109 U.S. 3 (1883).

17. See generally Christopher W. Schmidt, “On Doctrinal Confusion: The Case of the State Action Doctrine,” BYU Law Review (2016): 575–628.

18. Smith v. Allwright, 321 U.S. 649 (1944); Shelley v. Kraemer, 334 U.S. 1 (1948); Terry v. Adams, 345 U.S. 461 (1953); Barrows v. Jackson, 346 U.S. 249 (1953); and New York Times v. Sullivan, 376 U.S. 254 (1964).

19. Albert L. Rozier, Jr., “Students Hit Woolworth's for Lunch Service,” Register (North Carolina A&T), February 5, 1960, reprinted in Reporting Civil Rights: American Journalism, 1941-1963, vol. 1 (New York: Library of America, 2003), 431.

20. Joseph William Singer, “Public Rights,” Law and History Review 38 (2020): xx–xx. See also Joseph William Singer, “No Right to Exclude: Public Accommodations and Private Property,” Northwestern University Law Review 90 (1996): 1283–1497; Joseph William Singer “We Don't Serve Your Kind Here: Public Accommodations and the Mark of Sodom,” Boston University Law Review 95 (2015): 929–50; Kate Masur, An Example for All the Land: Emancipation and the Struggle over Equality in Washington, D.C. (Chapel Hill: University of North Carolina Press, 2010); and A.K. Sandoval-Strausz, “Travelers, Strangers, and Jim Crow: Law, Public Accommodations, and Civil Rights in America,” Law and History Review 23 (2005): 53–94.

21. Singer, “No Right to Exclude,” 1345–46.

22. The seminal case in this area of law is Marsh v. Alabama, 326 U.S. 501 (1946). In his opinion for the court, Justice Hugo Black wrote: “Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.” Ibid., 506.

23. Garner v. Louisiana, 368 U.S. 157, 183 (1961) (Douglas, J., concurring). See also Bell v. Maryland, 378 U.S. 226, 247 (Douglas, J., concurring) (“We deal here with public accommodations—with the right of people to eat and travel as they like and to use facilities whose only claim to existence is serving the public”); ibid., 312 (Goldberg, J., concurring) (“The restaurant involved in this case is concededly open to a large segment of the public. Restaurants such as this daily open their doors to millions of Americans. These establishments provide a public service as necessary today as the inns and carriers of Blackstone's time”).

24. Oral Arguments, Garner v. Louisiana, 368 U.S. 157 (1961), October 18-19, 1961, https://www.oyez.org/cases/1961/26.

25. Brief on Behalf of Respondent State of Louisiana (October 4, 1961), Garner v. Louisiana, 368 U.S. 157 (1961) (October Term 1961, Nos. 26–28), 50.

26. On this creative, perverse, and ultimately unsuccessful use of the Thirteenth Amendment, see Schmidt, Sit-Ins, 172–73. For a historical analysis of “right to discriminate” claims, see Christopher W. Schmidt, “Defending the Right to Discriminate: The Libertarian Challenge to the Civil Rights Movement,” in Signposts: New Directions in Southern Legal History, ed. Sally Hadden and Patricia Minter (Athens: University of Georgia Press, 2013), 417–46.

27. William J. Kenealy, “The Legality of the Sit-Ins,” in The New Negro, ed. Mathew H. Ahmann (Notre Dame, IN: Fides, 1961), 63–86, at 85.

28. Brief for Petitioners, August 25, 1961, Garner v. Louisiana, 368 U.S. 157 (1961) (October Term 1961, Nos. 26–28).

29. See Schmidt, “On Doctrinal Confusion,” 589–93.

30. Garner v. Louisiana, 368 U.S. 157, 184 (1961) (Douglas, J., concurring).

31. Diane Nash, “Inside the Sit-ins and Freedom Rides: Testimony of a Southern Student,” in The New Negro, ed. Mathew H. Ahmann (Notre Dame, IN: Fides, 1961), 43–60, at 57.

32. “An Appeal for Human Rights,” Atlanta Constitution, March 9, 1960, 13.

33. Clarence H. Patrick, Lunch Counter Desegregation in Winston-Salem, North Carolina (Southern Regional Council Pamphlet, 1960), 5.

34. Martin Luther King, Jr., “The Burning Truth in the South,” Progressive 24 (1960): 8, reprinted in Clayborne Carson, ed., The Papers of Martin Luther King, Jr., vol. 5 (Berkeley: University of California Press, 1992), 449.

35. Brown v. Board of Education, 347 U.S. 483, 494 (1954).

36. Prominent criticisms include Edmond Cahn, “Jurisprudence,” New York University Law Review 30 (1955): 150–69, at 157–68; and Herbert Wechsler, “Toward Neutral Principles of Constitutional Law,” Harvard Law Review 73 (1959): 1–35, at 32–33. In a series of terse, unsigned “per curiam” decisions following Brown, the court extended the constitutional prohibition of segregation from schools to public parks (New Orleans City Park Improvement Ass'n v. Detiege, 358 U.S. 54 [1958]), buses (Gayle v. Browder, 352 U.S. 903 [1956]), golf courses (Holmes v. City of Atlanta, 350 U.S. 879 [1955]), and beaches (Mayor and City Council of Baltimore v. Dawson, 350 U.S. 877 [1955]), without ever mentioning whether Brown's psychological harm rationale applied in these contexts.

37. Brief for Petitioners, August 26, 1963, Barr v .Columbia 378 U.S. 146 (1964) (October Term, 1963: Nos. 9, 10, 12), 40.

38. Earl Warren, draft dissent in Barr v. City of Columbia, May 7, 1964, Earl Warren Papers, Library of Congress, Manuscript Division, Washington, DC, Box 510, Folder: “Sit-in cases, O.T. 1963; No. 9 – Barr v. City of Columbia.”

39. Bell v. Maryland, 378 U.S. 226 (1964).

40. The common-calling argument featured prominently in large part because it emphasized the commercial nature of public accommodations, which was necessary to justify the public accommodations provision as an exercise of congressional authority under the Constitution's commerce clause. Similarly, the licensing argument featured prominently in large part because it helped make the case that the provision could be justified under Congress's authority under the enforcement provision of the Fourteenth Amendment, which Congress relied on as a secondary constitutional basis for the law. See Schmidt, The Sit-Ins, 157–63.

41. Bruce Ackerman, The Civil Rights Revolution (Cambridge, MA: Harvard University Press, 2014), ch. 7.

42. Martin Luther King, Jr., “Letter from Birmingham City Jail,” in A Testament of Hope: The Essential Writings and Speeches of Martin Luther King, Jr., ed. James M. Washington (New York: HarperOne, 1986), 292–93.

43. John F. Kennedy, “Radio and Television Report to the American People on Civil Rights,” June 11, 1963, The American Presidency Project, https://www.presidency.ucsb.edu/node/236675.

44. Congressional Record 110 (March 24, 1964), 6091.

45. Congressional Record 110 (March 30, 1964), 6531.

46. Editorial, “Civil Rights,” Chicago Defender, March 21, 1964, 8.

47. Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964) (upholding Title II of the 1964 Civil Rights Act); Katzenbach v. McClung, 379 U.S. 294 (1964) (same); and Hamm v. City of Rock Hill, 379 U.S. 306 (1964) (holding that Title II of the 1964 Civil Rights Act abated all pending convictions of sit-in protesters).

48. Kate Masur's An Example for All the Land, a study of racial politics in Washington, DC, during the Civil War and Reconstruction, offers a particularly insightful exploration of this theme.

49. See, for example, Masur, An Example for All the Land; Pamela Brandwein, Rethinking the Judicial Settlement of Reconstruction (New York: Cambridge University Press, 2011); George Rutherglen, Civil Rights in the Shadow of Slavery: The Constitution, Common Law, and the Civil Rights Act of 1866 (New York: Oxford University Press, 2013); Laura F. Edwards, A Legal History of the Civil War and Reconstruction: A Nation of Rights (New York: Cambridge University Press, 2015); and G. Edward White, Law in American History, Volume 2: From Reconstruction Through the 1920s (New York: Oxford University Press, 2016), 6–49.

50. See Christopher W. Schmidt, Civil Rights in America: A History (New York: Cambridge University Press, forthcoming 2021).

51. Scott notes that conservatives nonetheless challenged this idea of “public rights” on the same grounds that they challenged efforts to expand the meaning of civil rights, dismissing it as a conceptually incoherent, thinly veiled demand for social rights and a violation of private property rights. Scott, “Discerning a Dignitary Offense,” 521, 547; and Singer, “Public Rights,” 788.

52. Scott, “Discerning a Dignitary Offense,” 538.

53. Ibid.

54. Ibid., 521 n.6.

55. Louisiana Constitution of 1868, title II, article 13. Singer shows that courts sometimes rejected a common-calling framework in favor of a licensing framework as a way to limit the application of public accommodations law. Singer, “No Right to Exclude,” 1392–94.

56. Scott, “Discerning a Dignitary Offense,” 519.

57. Ibid., 547–8.

58. Ibid., 522.

59. 18 Stat. 335 (March 1, 1875).

60. Schmidt, Civil Rights in America, ch. 2; Brandwein, Rethinking the Judicial Settlement, 81–84; and Michael McConnell, “Originalism and the Desegregation Decisions,” Virginia Law Review 81 (1995): 947–1140, at 1014–23.

61. Civil Rights Cases, 109 U.S. 3 (1883).

62. Ibid., 10–25.

63. Ibid., 26.

64. Ibid. 34–43, quotation at 58–59.

65. Ibid., 37–42.

66. Ibid., 39–40.

67. Gilbert Thomas Stephenson, Race Distinctions in American Law (New York: Appleton, 1910), 121; and Milton R. Konvitz and Theodore Leskes, A Century of Civil Rights (New York: Columbia University Press, 1962), 157.

68. Stephenson, Race Distinctions, 124–38; Konvitz and Leskes, Century of Civil Rights, 158–68; Riegel, Stephen J., “The Persistent Career of Jim Crow: Lower Federal Courts and the ‘Separate but Equal’ Doctrine, 1865–1896,” American Journal of Legal History 28 (1984): 17–40CrossRefGoogle Scholar; Douglas, Davidson M., Jim Crow Moves North: The Battle Over Northern School Segregation, 1865-1954 (New York: Cambridge University Press, 2005), 90–93Google Scholar; and Dale, Elizabeth, “‘Social Equality Does Not Exist Among Themselves, nor among Us’: Baylies vs. Curry and Civil Rights in Chicago, 1888,” American Historical Review 102 (1997): 311–39CrossRefGoogle Scholar.