By Joe Mathewson
It seems incongruous. No, unbelievable. After the terrible carnage of the Civil War and the three post-war Constitutional amendments apparently settled once and for all the rights of Negroes as free citizens, the ultimate enforcer of those historic decisions denied them.
For several decades, well into the twentieth century, the U.S. Supreme Court shamelessly abrogated the amendments, ruling against Negroes’ claims of Constitutional voting rights and equal treatment before the law. Not to discriminate, the Court also turned down the Constitution-based claims of Chinese immigrants, working men and women, and residents of U.S. territories. In its ultimate affront to individual rights, the Court stared down the Fourteenth Amendment’s guarantee of equal protection to declare “separate but equal” the law of the land.
A principal perpetrator of this a history was a Chicagoan. He was chief justice of the United States from 1888 to 1910, the only Chicago resident ever to reach that pinnacle. His name, now conveniently buried in the sands of time, was Melville Weston Fuller.
A migrant from Maine, Fuller married into a prominent Chicago business family and established a comfortable law practice representing the owners of property and the managers of corporations. On many occasions he traveled by train to Washington to argue for his clients before the U.S. Supreme Court. As a young man Fuller had political interests if not ambitions, twice supporting Stephen A. Douglas against Abraham Lincoln, for the U.S. Senate in 1858 and for the presidency two years later. He served briefly in the Illinois legislature as a Democrat.
So it was that some years later, in 1888, when President Grover Cleveland, a Democrat, sought to curry favor in the Midwest for his re-election bid, he selected as chief justice of the United States 55-year-old Melville Fuller, who shared the president’s belief in sound money and his opposition to protective tariffs. Fuller succeeded Morrison Waite, who had already cast the Supreme Court as a spoiler of the postwar amendments and individual rights generally. (Although he narrowly won the popular vote, Cleveland lost Illinois, the Midwest and the election, only to rebound to a second term four years later.)
Ironically, some of Fuller’s fellow Chicagoans were among the first to feel his bite. They worked at the Pullman Palace Car Company on the South Side. Their wages drastically slashed in the depression of the early 1890s, they walked off the job. Their cause was promptly embraced by Eugene Debs, head of the American Railway Union. He called a strike of other railroads handling Pullman cars, triggering a massive tie-up and unprecedented reaction by the federal government.
The U.S. attorney general petitioned the federal court in Chicago to grant an extraordinary remedy, an injunction ordering the strikers back to work. There was no Taft-Hartley law authorizing such legal force, but the attorney general got his order. Debs ignored it. He told the workers to stand fast. The attorney general pressed ahead, asking the court to hold Debs in contempt of court. Again the court complied, ordering Debs jailed. He resisted all the way to the Supreme Court, but it unanimously upheld both his contempt citation and his jail sentence. It was the first time the Court authorized the use of an injunction against a labor union.
The Debs case was just one of many Fuller Court rulings against workers, black and white. In other actions the Court--
Upheld a federal statute that authorized U.S. marshals to enforce seamen’s contracts by physically delivering them to their ships;
Reversed the conviction of a creditor in Georgia for violating a federal statute against forcibly returning a person to peonage, meaning forced labor to work off his debt, on the ground that there was no proof offered that the debtor had been in peonage previously;
Overturned the federal convictions of three Arkansas white men for frightening and coercing eight African-Americans to abandon their job contracts, reasoning that the Thirteenth Amendment abolishing slavery did not give the government authority to criminalize such an offense;
Affirmed the conviction under a state statute, although it was criticized by the U.S. attorney general as an unconstitutional attempt to maintain a system of peonage, of an Alabama man for accepting $15 for work with intent to defraud, i.e., to not work;
Threw out federal statutes holding railroads liable for employees’ work accidents and barring discrimination against a railroad employee because he was a union member;
Applied the Sherman Antitrust Act, intended to curb anticompetitive restraints of trade by businesses, against a labor union’s organizing effort at a Danbury, Connecticut, hat factory, and a secondary boycott that grew out of it, with damages assessed against several union leaders personally;
Voided a New York statute limiting the hours of bakery workers to 10 a day and 60 a week, on the grounds that it violated a pro-employer concept called “freedom of contract,” nowhere stated in the Constitution. Strong dissents were registered by influential Justices Oliver Wendell Holmes and John Marshall Harlan, whose reputations have long outlasted Fuller’s. With this historic exercise in judicial activism, Lochner v. New York, the Supreme Court made itself the ultimate decider of the wisdom of state regulatory policies, establishing a precedent for similar rejections of other state social and economic measures by both the Supreme Court and lower courts for many years to come.
In glaring contrast to its expansive reading of the Sherman Antitrust Act in regard to a labor dispute, the Fuller Court took a very narrow view of that same statute when dealing with what the act specifically forbade, a business monopoly.
The American Sugar Refining Company created what was indisputably a monopoly by buying all its remaining competitors. Not surprisingly, the U. S. Justice Department brought suit against the combination to break it up. But the Supreme Court rejected the government’s plea, reasoning narrowly that the Sherman Act did not extend to manufacturing, only interstate commerce. Writing for the Court, Chief Justice Fuller declared,
"Doubtless the power to control the manufacture of a given thing involves in a certain sense the control of its disposition, but this is a secondary and not the primary sense; and although the exercise of that power may result in bringing the operation of commerce into play, it does not control it, and affects it only incidentally and indirectly. Commerce succeeds to manufacture, and is not a part of it."
United States v. E. C. Knight Co., 156 U.S. 1, 12 (1895).
Further denigrating individual rights, the Fuller Court handed down more than a dozen rulings, known as the Insular Cases, holding that the Constitution and therefore the Bill of Rights did not apply in U. S. territories, notably the islands acquired in the Spanish-American War of 1898. In one decision the Court explicitly made light of both the Fifth Amendment (due process of law) and the Sixth Amendment (fair trial) by declining to require a jury trial in the case of two Manila newspaper editors, both native-born U.S. citizens, convicted of criminal libel.
Still, the decision for which the Fuller Court will always be remembered is Plessy v. Ferguson, in 1896, upholding Louisiana’s requirement that rail passengers be separated by race. The Court declared that the statute did not suggest one race was inferior, it was just that one race chose to see it that way. And so from that day forward “separate but equal” was legally acceptable in public transportation, schools, restaurants, hotels, drinking fountains and throughout American life until it was finally undone by Brown v. Board of Education in 1954 and the federal civil rights statutes of the 1960s.
Curiously, the Chicago Daily Tribune did not even mention the historic Plessy decision. However, the paper was hardly ignoring Mr. Fuller’s court that day in May. It reported a number of other Supreme Court rulings and gave effusive prominence to a local case. The Court said it had no jurisdiction to hear a challenge to a Chicago land title, covering 460 acres along Western Avenue from 51st Street to 61st Street and valued at $3 million, held by one Mrs. Hetty R. Green, described by the Tribune as “America’s Richest Woman.” Once again the Fuller Court’s affinity for the haves prevailed.
Still in office, Melville Fuller died of a heart attack at age 77 in 1910. He was buried in Graceland Cemetery. His work lived on.
Joe Mathewson teaches journalism at Northwestern University’s Medill School. He previously covered the U.S. Supreme Court for The Wall Street Journal and practiced law in Chicago. This article is adapted from his book, The Supreme Court and the Press: The Indispensable Conflict, to be published in fall 2010 by the Northwestern University Press in the Medill School’s “Visions of the American Press” series edited by David Abrahamson.
The Rise and Fall of Jim Crow: Plessy v. Ferguson (PBS)
Plessy v. Ferguson (Wikipedia)
Modern America: The South Under Jim Crow