Rolling Back Civil Rights

After the passage of the Civil Rights Act of 1875, Congress enacted no further civil rights legislation for more than 80 years. The weakened law also proved difficult to enforce in the short eight years in which it was in effect. Although the law broadened federal power to enforce the equal treatment, it required that the aggrieved party take the initial step of filing a lawsuit—a legal and financial hurdle for many African Americans. The government lacked the power to initiate civil rights lawsuits on its own. The constant threat of violence, intimidation, or job loss in the South deterred many from ever taking legal action under the law.144

Yet it was an important marker in the history of civil rights legislation. Debating the Civil Rights Act of 1875, African-American lawmakers for the first time stood on the House Floor, as Members of Congress, and defended the rights of millions of African Americans. But the bill’s passage in weakened form also laid bare the precipitous decline of Radical Republican power in Congress and signaled that their idealistic experiment had come to an end. Moreover, though Republicans made gains in the House in the 1876 elections, the political battle that erupted over disputed presidential returns (and its resolution) effectively ended Reconstruction.

The 1876 presidential contest between Republican candidate Rutherford B. Hayes and Democratic candidate Samuel Tilden caused an electoral crisis when South Carolina, Florida, and Louisiana submitted a set of electoral votes for each candidate. On January 29, 1877, the House adopted an independent 15-member Electoral Commission consisting of Representatives, Senators, and Supreme Court Justices to investigate the disputed electoral returns. The six black Representatives who served in the House during the discussion of the disputed election—including three from two of the contested states—were among the minority opposing the establishment of the Electoral Commission. John Lynch made two speeches opposing the commission and later observed in his autobiography that the office of the presidency was too important to be placed in “a game or scheme of luck and chance.”145 Joseph Rainey noted the constitutional quandary of establishing the commission, since the framers had never contemplated such a mechanism. “Once permit the Constitution to be made a mere piece of pottery to fashion as party exigencies seem to demand,” he warned his colleagues, “and that moment we are cut adrift from safe moorings and carried beyond rescue upon tossing billows of the political sea.”146

Harper's Weekly/tiles/non-collection/b/baic_cont_1_harpers_democratic_voter_-dec_8_1877_LC-USZ62-80414.xml Image courtesy of the Library of Congress This Thomas Nast sketch from an 1877 Harper’s Weekly made note of an African-American man voting for a Democrat. In the years following the Civil War, African Americans overwhelmingly supported the Republican Party.
The Electoral Commission ruled eight to seven in favor of electing Hayes by one electoral vote over Tilden. Though no African-American Representative was afforded time to speak on the subject, all voted in favor of the commission’s conclusion, supporting the election of a Republican candidate over a Democrat, despite their reservations about the commission’s legitimacy.147 Hayes’s victory, however, came at the cost of the progressive policies of Congressional Reconstruction. The new administration pulled federal troops out of the South, allowing southern Democrats to roll back the decade-long experiment in fostering racial equality. The new Republican President did little for black civil rights. A disillusioned John Lynch noted that “the Hayes administration not only completed the destruction of what had been thus accomplished, but made any further progress . . . absolutely impossible.”148

Without federal protection for southern blacks, the next decade marked a period of “redemption” in the former Confederacy as white supremacists captured and controlled local and state governments across the South. As historian C. Vann Woodward once noted, the interaction between white and black Southerners was already “strained” during Reconstruction. “It was also temporary, and it was usually self-conscious. It was a product of contrived circumstances.”149

African-American politicians examined anew their loyalty to the Republican Party. From his home in Macon, Georgia, Jefferson Long began encouraging black voters to vote for Independent Democrats if Republican candidates proved unsatisfactory. Long himself campaigned for several independent candidates in the 1870s and 1880s.150Robert De Large, who served in the House from 1871 to 1873, noted during his congressional service, “I hold that my race has always been Republican for necessity only.” After leaving Congress, he and fellow South Carolinians Richard Cain and Alonzo Ransier allied with Martin Delany—a disillusioned former Republican who had abandoned the party for the Democrats and talked of a third party for African Americans in the South.151

A series of Supreme Court decisions during the last three decades of the 19th century negated the gains of the civil rights acts and of the Fourteenth and Fifteenth Amendments passed during Reconstruction. The Supreme Court rejected the 1873 Slaughterhouse Cases—a set of three lawsuits initiated by Louisiana butchers challenging a state law that centralized the state’s slaughterhouses into one private company. The butchers claimed protection under the Fourteenth Amendment against state incursion on “privileges or immunities.” The effect of the decision limited the ability of the federal government to protect African Americans by confining its power to influence the states on behalf of individual rights. The United States v. Cruikshank and United States v. Reese decisions also weakened the Fifteenth Amendment’s voting rights protections. Cruikshank initiated an erosion of the Civil Rights Act of 1875, as the high court ruled the act did not guarantee First Amendment rights. In the Reese case, the Supreme Court opened a Pandora’s box with its finding that the Fifteenth Amendment did not confer upon any individual the right to vote, but merely forbade states to give any citizen preferential treatment. In this interpretation, the right to vote derived from states, rather than the federal government—leaving state governments to determine how voters were qualified and under what circumstances voting would be allowed. In 1883, in the case United States v. Harris, the court determined that federal laws did not apply to private persons, which erased the protections provided in the Force Acts (the Ku Klux Klan Acts). That finding unleashed white supremacists to attack any African American seeking to exercise his political rights.152

On October 15, 1883, the rollback of civil rights continued when the Supreme Court struck down the weak provisions in the Civil Rights Act of 1875. Ruling 8 to 1, the court declared the law unconstitutional in the Civil Rights Cases. The majority opinion asserted that individuals were relegated to appealing to state governments—which proved unfriendly to black Americans in the South—to stop such discrimination.153 The two black Representatives serving at the time the ruling was handed down, James O’Hara and Robert Smalls, attempted unsuccessfully to revive portions of the Civil Rights Act. In December 1884, O’Hara offered an amendment to an interstate commerce bill prohibiting discrimination on railroad cars. Joined by Representative Smalls on December 17, the two made arguments echoing those of their predecessors who fought for the civil rights bill. O’Hara and Smalls, however, served in a minority party in an era when even many congressional Republicans viewed racial equality as an irreconcilable division between the North and South that should be ignored rather than discussed.

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144Wilson, The Reconstruction Desegregation Debate: 42.

145Lynch, Reminiscences of an Active Life: 195.

146Congressional Record, Appendix, 44th Cong., 2nd sess. (25 January 1877): A60.

147Congressional Record, House, 44th Cong., 2nd sess. (28 February 1877): 2019–2020.

148Lynch, Reminiscences of an Active Life: 201.

149C. Vann Woodward, The Strange Career of Jim Crow (1955; repr., New York: Oxford University Press, 2002): 29.

150John M. Matthews, “Long, Jefferson Franklin,” American National Biography 13 (New York: Oxford University Press, 1999): 875–876.

151Quoted in Timothy P. McCarthy, “DeLarge, Robert Carlos,” American National Biography 6 (New York: Oxford University Press, 1999): 383–384; Joel Williamson, After Slavery: 359.

152For more information, see Slaughterhouse Cases, 83 U.S. 36 (1873); United States v. Cruikshank, 92 U.S. 542 (1876); United States v. Reese, 92 U.S. 214 (1876), United States v. Harris, 106 U.S. 629 (1883); and Civil Rights Cases, 109 U.S. 3 (1883). The various cases are discussed in detail in Kermit L. Hall, ed., The Oxford Companion to the Supreme Court of the United States (New York: Oxford University Press, 2002).

153Robert J. Cottrol, “Civil Rights Cases,” in The Oxford Companion to the Supreme Court of the United States: 149.