THE BLOG
07/06/2010 12:34 pm ET Updated May 25, 2011

The Civil Rights Act Struck Down

Yes, that's right. The Civil Rights Act of 1875, passed by both houses of Congress and signed into law by President Grant, was struck down by the Supreme Court, Chief Justice Joseph Bradley writing the majority opinion. And what was his opinion? He said it was time for blacks to assume "the rank of a mere citizen" and stop being the "special favorite of the laws." It's exactly the same argument we hear today for those who think minorities are being favored just because we have elected an African American President.

Too many Americans agree with that point of view. The result is that a reaction is setting in, a return to the days of segregation. We learned from Taylor March on this site that Rand Paul, among other candidates for public office, thinks that an owner of a private establishment open to the public has the right to refuse service to anyone he pleases.

The Civil Rights Act of 1875 was the product of long efforts for its passage by Senator Charles Sumner of Massachusetts. The law stated "That all persons... shall be entitled to full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement." Notice that it didn't make any ethnic group superior. Just "all persons" have the same right.

The Act was declared unconstitutional by the US Supreme Court a decade later. The Court reviewed five separate complaints involving acts of discrimination on a railroad and in public sites, including a theater in San Francisco and the Grand Opera House in New York. In declaring the federal law unconstitutional, Chief Justice Joseph Bradley held that the Fourteenth Amendment did not protect black people from discrimination by private businesses and individuals but only from discrimination by states.

Obviously, the effect of the law being struck down created the climate and legality of segregation throughout the American South and somewhat in the North as well. And it would take the Civil Rights Act of 1964 to formally set aside the precedent set by the Court in 1885. If the Court felt compelled to revere precedent over any other legal and moral consideration, we would still have laws enshrining segregation throughout America.

Fortunately, the Civil Rights Act of 1964 has been upheld by the courts, but we have heard recent remarks by Chief Justice Roberts that evoke Justice Bradley's of 125 years ago. Roberts recently said "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," which is a not-so-subtle hint that rather than have Congress and the courts rule on matters of race, society has to evolve instead through the slow and often agonizing process of education and tolerance.

Given the obvious evidence of current racist attitudes in America, the remarks coming from our current Chief Justice should raise the alarm not only among civil rights activists but of all Americans who value racial justice and equality of all persons before the law. We cannot afford to go backwards in our goal, stated in the Constitution, "to create a more perfect union."