Williams, Diary of a Mad Law Professor

THE NATION
diary of a mad law professor
Economic Bad Boys
Patricia J. Williams

When the "scrawny boy from Austria" delivered his peroration against faint-hearted "economic girlie men," it was an unusually seductive, even witty, appeal to a notion of free enterprise that is not just flexible but musclebound, not just robust but smackdown and not just strong but hypersteroidal. But the American free enterprise system, particularly since the Depression, has always rested on an assumption that the marketplace would be bounded by notions of fairness, reasonableness, rationality as well as efficiency. Recently, libertarian clichés and Republican oversimplifications seem to have left many people with the impression that commerce should be utterly unbounded by any kind of regulation whatsoever. This kind of thinking is littered with references to survival of the fittest, dogs eating dogs and snarling consumption of large quantities of red meat still bloody enough to spatter impressively.

But the government's role used to mean insuring that the market was free of transactions posing great risks to life, limb or cultural capital. In such ideal circumstances, parties might bargain as wisely or foolishly as they please as long as they are capable actors, the terms are reasonable rather than unconscionable and no undue force, either public or private, is brought to bear. Where such circumstances did not exist, it was understood that public willingness to participate in the market would be affected and that participants could not be pacified by monetary damages alone but might rather be motivated by pain, fear, vengeance or fury.
Two things have happened in the years it has taken to convert Arnold Schwarzenegger into a political philosopher. One is that the pricing of risk has overtaken all other categories of analysis. From the high-flying executives at Enron to the mercenary soldiers of Executive Outcomes, every jot of daily life, from the highest ideal to the most basic principle, seems to have its price tag. Our political discourse is configured much more by models of hasta la vista baby commercialism than guided by civil libertarian or humanitarian ethics. The second thing that has happened is that the notion of the state as a monopoly of power has been under attack by antigovernment ideologues, who think the only function of government is policing a narrow range of business interests. This has resulted in broad suspicion of the judiciary as well as Congress, and an increased tendency to reduce the executive function to that of a military-minded CEO. But the degree to which this theoretical decentralization of government power also results in an unchecked aggregation of corporate power is ironic.

I guess I bother to go through this rather academic rendition because I worry that the notion of free enterprise driving the he-man model of capitalism is dangerously flawed. Let me give a bottom-line example of what's bothering me. A few months ago, National Public Radio's Talk of the Nation did a program about a Dutch physician working for Médecins Sans Frontières who was kidnapped and held for nearly two years in southern Russia. The Dutch government paid the ransom, but then sued Médecins Sans Frontières for reimbursement of about $1 million. The questions asked during the radio discussion were revealing: Did the Netherlands violate a presumably public policy principle of "not negotiating with terrorists"? Or was it simply lending Médecins Sans Frontières money under stress of a deadline, with the implicit assumption that it would be repaid? And what do corporations, if not governments, do when their employees are kidnapped?

In response to this last question, there was an interview with a man from an outfit called Corporate Risk, a service that handles the negotiation, delivery of ransom, coordination of law enforcement and communication with family. Callers seemed to relate to the mission of Corporate Risk. One listener described the world as a dangerous place generally; it was only natural to put a price on that danger. The guiding light for many seemed to be a corporation's--and ultimately a government's--willingness to absorb or dismiss beheading as the cost of doing business.

To me, there are a couple of fundamental moral mistakes here. The first is that governments, in their policy of "no negotiation" despite risk to human life, seem to be treating criminal or battlefield behavior as though it were an economic transaction--as though it were a usurious or extortive system of raising capital. Your money or your life, says the terrorist. No deal, says the wise, if short-lived, free marketeer. But if we view our bodies as beyond price, we might move heaven and earth to save a life--consider how different the Lindbergh case or the desperate negotiations for Daniel Pearl. Loss of life disorders much more than the marketplace, and that should guide our response. The second mistake is that private corporations are not really "undercutting" public policy--they are underwriting it. Politicians get to stand firm, while private companies hire desperately poor men from Nepal, Turkey, Bangladesh, to work in the line of fire--people whose lack of options become recast as "choice" or "freely assumed risk"--people whose lives are easily bought, and whose loss or injury is a transaction cost invisible to the voting public in powerful polities. In this model, neither the individual nor the state can lay claim to a value beyond price. Rather, the stock in the business enterprise itself is the prime interest to be protected.

Recently, Médecins Sans Frontières withdrew all its doctors from Afghanistan after the government there failed to investigate or prosecute the murderers of five of its doctors. As I flipped the dial through talk-radio rather farther to the right on the dial from NPR (I was driving from Boston to New York and could not identify all the voices or stations), I heard several discussions describing the decision as an unfortunate "cost of doing business," and that you can't "whine" if you put yourself "in harm's way."

The characterization of Médecins Sans Frontières, a neutral charitable organization operating in war zones around the world, as just another risk-calculating "business," is just one example of how much of what we used to think of as humanitarianism has been negotiated away in the politics of testosterone.

Cynthia McKinney Apologizes

McKinney apologizes for scuffle with officer
Grand jury to hear testimony on incident, sources say


Thursday, April 6, 2006; Posted: 2:20 p.m. EDT

WASHINGTON (CNN) -- Rep. Cynthia McKinney apologized on the House floor Thursday for a confrontation with a Capitol Police officer last week.

"There should not have been any physical contact in this incident," McKinney said.

"I am sorry that this misunderstanding happened at all, and I regret its escalation and I apologize," she said surrounded by colleagues on the House floor.

She said she would vote for a resolution expressing support for the efforts of Capitol Police. (Watch McKinney express her regret Thursday -- :43)

McKinney's apology came as a District of Columbia grand jury began hearing testimony Thursday related to the confrontation, sources said.

A decision on whether the Georgia congresswoman will be charged could come as early as next week, federal law enforcement sources said.

Senior congressional sources said that two House staff members -- Troy Phillips, an aide to Rep. Sam Farr, D-California, and Lisa Subrize, executive assistant to Rep. Thaddeus McCotter, R-Michigan -- have been subpoenaed to testify.

Legal sources familiar with the case said the investigation into the incident is continuing and that is it unclear what impact McKinney's apology will have.

Police say McKinney struck a Capitol Police officer last week when the officer did not recognize her as a member of Congress and tried to stop her from entering a House office building when she did not present identification.

McKinney accuses the officer of "inappropriate touching" and racial profiling in the incident.
James Myart, an attorney representing McKinney, said he wouldn't be surprised if his client were indicted.

"Grand juries do what grand juries do," Myart said. "However, I would think that they would recognize that there simply is not enough evidence here to even bring an indictment."

Members of the Congressional Black Caucus, which has declined to comment because the facts of the case are in dispute, met Wednesday evening to discuss the incident. McKinney was in attendance.

Also Wednesday, McKinney deflected questions about the confrontation, while the Capitol Police chief said the lawmaker should have known better. (Watch McKinney deflect questions -- 10:46)

Capitol Police Chief Terrance Gainer said McKinney didn't stop at an officer's request, then turned around and hit him after he grabbed her when she passed a security checkpoint.
"Any time an officer does not know who the person is coming in the building, I direct them to stop that person. And even if you're stopped, you're not supposed to hit a police officer. It's very simple," he said. "Even the high and the haughty should be able to stop and say, 'I'm a congressman,' and then everybody moves on."

But Myart said that Gainer and other officers went to McKinney's office after the dispute and apologized for the officer's conduct. Myart also questioned why McKinney wasn't arrested on the spot for assaulting an officer, if that is in fact what happened.

Citing potential criminal charges against McKinney, another of her attorneys, Mike Raffauf, said Wednesday his client would not discuss specifics of the case.

McKinney has acknowledged that when she was stopped she was not wearing the lapel pin given to lawmakers. The lawmaker said the identification pin is irrelevant.

"It doesn't have a face or a photo ID on it, and quite frankly it can be duplicated," she said.
McKinney and her attorneys insist that Capitol Police officers should be trained to recognize all 535 members of Congress on sight.

But while Myart has said McKinney was "assaulted" and that her reaction to the officer was appropriate, Gainer argued that McKinney has turned an officer's failure to recognize her into a criminal matter.

Gainer said race was not an issue and that he has seen officers stop and question white, black and Latino members of Congress. He added that officers are given photos of new members of Congress, but with 30,000 employees in the Capitol complex and more than 9 million visitors a year, officers have "to make sure we know who is coming in the building."

Republicans have seized the opportunity to take shots at the legislator. Rep. Tom DeLay, R-Texas, called McKinney a "racist" on Fox News Channel and House Speaker Dennis Hastert, R-Illinois, downplayed the Georgia lawmaker's allegation of racial profiling.

"This is not about personalities. It's not about somebody's ego. It's not about racial profiling," Hastert said. "It's trying to make this place safer and working with the people that try to make it safer."

Also, two Republican members introduced a resolution Tuesday commending the Capitol Police for their "continued courage and professionalism." (Full story)

McKinney, 51, represents Georgia's 4th Congressional District, a majority-black, Democratic district on the east side of metro Atlanta.

First elected in 1992, she was defeated in a 2002 Democratic primary but made a comeback in 2004, winning her old seat after the candidate who had defeated her two years earlier decided to run for the U.S. Senate.

Plessy v Ferguson

U.S. Supreme Court
PLESSY v. FERGUSON, 163 U.S. 537 (1896)
163 U.S. 537
PLESSY v. FERGUSON. No. 210.
May 18, 1896. [163 U.S. 537, 538] This was a petition for writs of prohibition and certiorari originally filed in the supreme court of the state by Plessy, the plaintiff in error, against the Hon. John H. Ferguson, judge of the criminal district court for the parish of Orleans, and setting forth, in substance, the following facts:

That petitioner was a citizen of the United States and a resident of the state of Louisiana, of mixed descent, in the proportion of seven-e ghths Caucasian and one-eighth African blood; that the mixture of colored blood was not discernible in him, and that he was entitled to every recognition, right, privilege, and immunity secured to the citizens of the United States of the white race by its constitution and laws; that on June 7, 1892, he engaged and paid for a first-class passage on the East Louisiana Railway, from New Orleans to Covington, in the same state, and thereupon entered a passenger train, and took possession of a vacant seat in a coach where passengers of the white race were accommodated; that such railroad company was incorporated by the laws of Louisiana as a common carrier, and was not authorized to distinguish between citizens according to their race, but, notwithstanding this, petitioner was required by the conductor, under penalty of ejection from said train and imprisonment, to vacate said coach, and occupy another seat, in a coach assigned by said company for persons not of the white race, and for no other reason than that petitioner was of the colored race; that, upon petitioner's refusal to comply with such order, he was, with the aid of a police officer, forcibly ejected from said coach, and hurried off to, and imprisoned in, the parish jail of [163 U.S. 537, 539] New Orleans, and there held to answer a charge made by such officer to the effect that he was guilty of having criminally violated an act of the general assembly of the state, approved July 10, 1890, in such case made and provided.

The petitioner was subsequently brought before the recorder of the city for preliminary examination, and committed for trial to the criminal district court for the parish of Orleans, where an information was filed against him in the matter above set forth, for a violation of the above act, which act the petitioner affirmed to be null and void, because in conflict with the constitution of the United States; that petitioner interposed a plea to such information, based upon the unconstitutionality of the act of the general assembly, to which the district attorney, on behalf of the state, filed a demurrer; that, upon issue being joined upon such demurrer and plea, the court sustained the demurrer, overruled the plea, and ordered petitioner to plead over to the facts set forth in the information, and that, unless the judge of the said court be enjoined by a writ of prohibition from further proceeding in such case, the court will proceed to fine and sentence petitioner to imprisonment, and thus deprive him of his constitutional rights set forth in his said plea, notwithstanding the unconstitutionality of the act under which he was being prosecuted; that no appeal lay from such sentence, and petitioner was without relief or remedy except by writs of prohibition and certiorari. Copies of the information and other proceedings in the criminal district court were annexed to the petition as an exhibit.

. . .

The case coming on for hearing before the supreme court, that court was of opinion that the law under which the prosecution was had was constitutional and denied the relief prayed for by the petitioner (Ex parte Plessy, 45 La. Ann. 80, 11 South. 948); whereupon petitioner prayed for a writ of error from this court, which was allowed by the chief justice of the supreme court of Louisiana.

Mr. Justice Harlan dissenting.
A. W. Tourgee and S. F. Phillips, for plaintiff in error.
Alex. Porter Morse, for defendant in error.
Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.
This case turns upon the constitutionality of an act of the general assembly of the state of Louisiana, passed in 1890, providing for separate railway carriages for the white and colored races. Acts 1890, No. 111, p. 152.

The first section of the statute enacts 'that all railway companies carrying passengers in their coaches in this state, shall provide equal but separate accommodations for the white, and colored races, by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations: provided, that this section shall not be construed to apply to street railroads. No person or persons shall be permitted to occupy seats in coaches, other than the ones assigned to them, on account of the race they belong to.'

By the second section it was enacted 'that the officers of such passenger trains shall have power and are hereby required [163 U.S. 537, 541] to assign each passenger to the coach or compartment used for the race to which such passenger belongs; any passenger insisting on going into a coach or compartment to which by race he does not belong, shall be liable to a fine of twenty-five dollars, or in lieu thereof to imprisonment for a period of not more than twenty days in the parish prison, and any officer of any railroad insisting on assigning a passenger to a coach or compartment other than the one set aside for the race to which said passenger belongs, shall be liable to a fine of twenty-five dollars, or in lieu thereof to imprisonment for a period of not more than twenty days in the parish prison; and should any passenger refuse to occupy the coach or compartment to which he or she is assigned by the officer of such railway, said officer shall have power to refuse to carry such passenger on his train, and for such refusal neither he nor the railway company which he represents shall be liable for damages in any of the courts of this state.'

. . .

The information filed in the criminal district court charged, in substance, that Plessy, being a passenger between two stations within the state of Louisiana, was assigned by officers of the company to the coach used for the race to which he belonged, but he insisted upon going into a coach used by the race to which he did not belong. Neither in the information nor plea was his particular race or color averred.

The petition for the writ of prohibition averred that petitioner was seven-eights Caucasian and one-eighth African blood; that the mixture of colored blood was not discernible in him; and that he was entitled to every right, privilege, and immunity secured to citizens of the United States of the white race; and that, upon such theory, he took possession of a vacant seat in a coach where passengers of the white race were accommodated, and was ordered by the conductor to vacate [163 U.S. 537, 542] said coach, and take a seat in another, assigned to persons of the colored race, and, having refused to comply with such demand, he was forcibly ejected, with the aid of a police officer, and imprisoned in the parish jail to answer a charge of having violated the above act.

The constitutionality of this act is attacked upon the ground that it conflicts both with the thirteenth amendment of the constitution, abolishing slavery, and the fourteenth amendment, which prohibits certain restrictive legislation on the part of the states.

1. That it does not conflict with the thirteenth amendment, which abolished slavery and involuntary servitude, except a punishment for crime, is too clear for argument. Slavery implies involuntary servitude,-a state of bondage; the ownership of mankind as a chattel, or, at least, the control of the labor and services of one man for the benefit of another, and the absence of a legal right to the disposal of his own person, property, and services. This amendment was said in the Slaughter-House Cases, 16 Wall. 36, to have been intended primarily to abolish slavery, as it had been previously known in this country, and that it equally forbade Mexican peonage or the Chinese coolie trade, when they amounted to slavery or involuntary servitude, and that the use of the word 'servitude' was intended to prohibit the use of all forms of involuntary slavery, of whatever class or name. It was intimated, however, in that case, that this amendment was regarded by the statesmen of that day as insufficient to protect the colored race from certain laws which had been enacted in the Southern states, imposing upon the colored race onerous disabilities and burdens, and curtailing their rights in the pursuit of life, liberty, and property to such an extent that their freedom was of little value; and that the fourteenth amendment was devised to meet this exigency.

So, too, in the Civil Rights Cases, 109 U.S. 3 , 3 Sup. Ct. 18, it was said that the act of a mere individual, the owner of an inn, a public conveyance or place of amusement, refusing accommodations to colored people, cannot be justly regarded as imposing any badge of slavery or servitude upon the applicant, but [163 U.S. 537, 543] only as involving an ordinary civil injury, properly cognizable by the laws of the state, and presumably subject to redress by those laws until the contrary appears. 'It would be running the slavery question into the ground,' said Mr. Justice Bradley, 'to make it apply to every act of discrimination which a person may see fit to make as to the guests he will entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theater, or deal with in other matters of intercourse or business.'
A statute which implies merely a legal distinction between the white and colored races-a distinction which is founded in the color of the two races, and which must always exist so long as white men are distinguished from the other race by color-has no tendency to destroy the legal equality of the two races, or re-establish a state of involuntary servitude. Indeed, we do not understand that the thirteenth amendment is strenuously relied upon by the plaintiff in error in this connection.

2. By the fourteenth amendment, all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are made citizens of the United States and of the state wherein they reside; and the states are forbidden from making or enforcing any law which shall abridge the privileges or immunities of citizens of the United States, or shall deprive any person of life, liberty, or property without due process of law, or deny to any person within their jurisdiction the equal protection of the laws.

The proper construction of this amendment was first called to the attention of this court in the Slaughter-House Cases, 16 Wall. 36, which involved, however, not a question of race, but one of exclusive privileges. The case did not call for any expression of opinion as to the exact rights it was intended to secure to the colored race, but it was said generally that its main purpose was to establish the citizenship of the negro, to give definitions of citizenship of the United States and of the states, and to protect from the hostile legislation of the states the privileges and immunities of citizens of the United States, as distinguished from those of citizens of the states. [163 U.S. 537, 544] The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguish d from political, equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation, in places where they are liable to be brought into contact, do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for white and colored children, which have been held to be a valid exercise of the legislative power even by courts of states where the political rights of the colored race have been longest and most earnestly enforced.

One of the earliest of these cases is that of Roberts v. City of Boston, 5 Cush. 198, in which the supreme judicial court of Massachusetts held that the general school committee of Boston had power to make provision for the instruction of colored children in separate schools established exclusively for them, and to prohibit their attendance upon the other schools. 'The great principle,' said Chief Justice Shaw, 'advanced by the learned and eloquent advocate for the plaintiff [Mr. Charles Sumner], is that, by the constitution and laws of Massachusetts, all persons, without distinction of age or sex, birth or color, origin or condition, are equal before the law. ... But, when this great principle comes to be applied to the actual and various conditions of persons in society, it will not warrant the assertion that men and women are legally clothed with the same civil and political powers, and that children and adults are legally to have the same functions and be subject to the same treatment; but only that the rights of all, as they are settled and regulated by law, are equally entitled to the paternal consideration and protection of the law for their maintenance and security.' It was held that the powers of the committee extended to the establish- [163 U.S. 537, 545] ment of separate schools for children of different ages, sexes and colors, and that they might also establish special schools for poor and neglected children, who have become too old to attend the primary school, and yet have not acquired the rudiments of learning, to enable them to enter the ordinary schools. Similar laws have been enacted by congress under its general power of legislation over the District of Columbia (sections 281- 283, 310, 319, Rev. St. D. C.), as well as by the legislatures of many of the states, and have been generally, if not uniformly, sustained by the courts. State v. McCann, 21 Ohio St. 210; Lehew v. Brummell (Mo. Sup.) 15 S. W. 765; Ward v. Flood, 48 Cal. 36; Bertonneau v. Directors of City Schools, 3 Woods, 177, Fed. Cas. No. 1,361; People v. Gallagher, 93 N. Y. 438; Cory v. Carter, 48 Ind. 337; Dawson v. Lee, 83 Ky. 49.

Laws forbidding the intermarriage of the two races may be said in a technical sense to interfere with the freedom of contract, and yet have been universally recognized as within the police power of the state. State v. Gibson, 36 Ind. 389.

The distinction between laws interfering with the political equality of the negro and those requiring the separation of the two races in schools, theaters, and railway carriages has been frequently drawn by this court. Thus, in Strauder v. West Virginia, 100 U.S. 303 , it was held that a law of West Virginia limiting to white male persons 21 years of age, and citizens of the state, the right to sit upon juries, was a discrimination which implied a legal inferiority in civil society, which lessened the security of the right of the colored race, and was a step towards reducing them to a condition of servility. Indeed, the right of a colored man that, in the selection of jurors to pass upon his life, liberty, and property, there shall be no exclusion of his race, and no discrimination against them because of color, has been asserted in a number of cases. Virginia v. Rivers, 100 U.S. 313 ; Neal v. Delaware, 103 U.S. 370 ; ush v. Com., 107 U.S. 110 , 1 Sup. Ct. 625; Gibson v. Mississippi, 162 U.S. 565 , 16 Sup. Ct. 904. So, where the laws of a particular locality or the charter of a particular railway corporation has provided that no person shall be excluded from the cars on account of [163 U.S. 537, 546] color, we have held that this meant that persons of color should travel in the same car as white ones, and that the enactment was not satisfied by the company providing cars assigned exclusively to people of color, though they were as good as those which they assigned exclusively to white persons. Railroad Co. v. Brown, 17 Wall. 445.

Upon the other hand, where a statute of Louisiana required those engaged in the transportation of passengers among the states to give to all persons traveling within that state, upon vessels employed in that business, equal rights and privileges in all parts of the vessel, without distinction on account of race or color, and subjected to an action for damages the owner of such a vessel who excluded colored passengers on account of their color from the cabin set aside by him for the use of whites, it was held to be, so far as it applied to interstate commerce, unconstitutional and void. Hall v. De Cuir, 95 U.S. 485 . The court in this case, however, expressly disclaimed that it had anything whatever to do with the statute as a regulation of internal commerce, or affecting anything else than commerce among the states.

In the Civil Rights Cases, 109 U.S. 3 , 3 Sup. Ct. 18, it was held that an act of congress entitling all persons within the jurisdiction of the United States to the 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, and made applicable to citizens of every race and color, regardless of any previous condition of servitude, was unconstitutional and void, upon the ground that the fourteenth amendment was prohibitory upon the states only, and the legislation authorized to be adopted by congress for enforcing it was not direct legislation on matters respecting which the states were prohibited from making or enforcing certain laws, or doing certain acts, but was corrective legislation, such as might be necessary or proper for counter-acting and redressing the effect of such laws or acts. In delivering the opinion of the court, Mr. Justice Bradley observed that the fourteenth amendment 'does not invest congress with power to legislate upon subjects that are within the [163 U.S. 537, 547] domain of state legislation, but to provide modes of relief against state legislation or state action of the kind referred to. It does not authorize congress to create a code of municipal law for the regulation of private rights, but to provide modes of redress against the operation of state laws, and the action of state officers, executive or judicial, when these are subversive of the fundamental rights specified in the amendment. Positive rights and privileges are undoubtedly secured by the fourteenth amendment; but they are secured by way of prohibition against state laws and state proceedings affecting those rights and privileges, and by power given to congress to legislate for the purpose of carrying such prohibition into effect; and such legislation must necessarily be predicated upon such supposed state laws or state proceedings, and be directed to the correction of their operation and effect.'

Much nearer, and, indeed, almost directly in point, is the case of the Louisville, N. O. & T. Ry. Co. v. State, 133 U.S. 587 , 10 Sup. Ct. 348, wherein the railway company was indicted for a violation of a statute of Mississippi, enacting that all railroads carrying passengers should provide equal, but separate, accommodations for the white and colored races, by providing two or more passenger cars for each passenger train, or by dividing the passenger cars by a partition, so as to secure separate accommodations. The case was presented in a different aspe t from the one under consideration, inasmuch as it was an indictment against the railway company for failing to provide the separate accommodations, but the question considered was the constitutionality of the law. In that case, the supreme court of Mississippi (66 Miss. 662, 6 South. 203) had held that the statute applied solely to commerce within the state, and, that being the construction of the state statute by its highest court, was accepted as conclusive. 'If it be a matter,' said the court (page 591, 133 U. S., and page 348, 10 Sup. Ct.), 'respecting commerce wholly within a state, and not interfering with commerce between the states, then, obviously, there is no violation of the commerce clause of the federal constitution. ... No question arises under this section as to the power of the state to separate in different compartments interstate pas- [163 U.S. 537, 548] sengers, or affect, in any manner, the privileges and rights of such passengers. All that we can consider is whether the state has the power to require that railroad trains within her limits shall have separate accommodations for the two races. That affecting only commerce within the state is no invasion of the power given to congress by the
commerce clause.'

A like course of reasoning applies to the case under consideration, since the supreme court of Louisiana, in the case of State v. Judge, 44 La. Ann. 770, 11 South. 74, held that the statute in question did not apply to interstate passengers, but was confined in its application to passengers traveling exclusively within the borders of the state. The case was decided largely upon the authority of Louisville, N. O. & T. Ry. Co. v. State, 66 Miss. 662, 6 South, 203, and affirmed by this court in 133 U.S. 587 , 10 Sup. Ct. 348. In the present case no question of interference with interstate commerce can possibly arise, since the East Louisiana Railway appears to have been purely a local line, with both its termini within the state of Louisiana. Similar statutes for the separation of the two races upon public conveyances were held to be constitutional in Railroad v. Miles, 55 Pa. St. 209; Day v. Owen 5 Mich. 520; Railway Co. v. Williams, 55 Ill. 185; Railroad Co. v. Wells, 85 Tenn. 613; 4 S. W. 5; Railroad Co. v. Benson, 85 Tenn. 627, 4 S. W. 5; The Sue, 22 Fed. 843; Logwood v. Railroad Co., 23 Fed. 318; McGuinn v. Forbes, 37 Fed. 639; People v. King ( N. Y. App.) 18 N. E. 245; Houck v. Railway Co., 38 Fed. 226; Heard v. Railroad Co., 3 Inter St. Commerce Com. R. 111, 1 Inter St. Commerce Com. R. 428.

While we think the enforced separation of the races, as applied to the internal commerce of the state, neither abridges the privileges or immunities of the colored man, deprives him of his property without due process of law, nor denies him the equal protection of the laws, within the meaning of the fourteenth amendment, we are not prepared to say that the conductor, in assigning passengers to the coaches according to their race, does not act at his peril, or that the provision of the second section of the act that denies to the passenger compensa- [163 U.S. 537, 549] tion in damages for a refusal to receive him into the coach in which he properly belongs is a valid exercise of the legislative power. Indeed, we understand it to be conceded by the state's attorney that such part of the act as exempts from liability the railway company and its officers is unconstitutional. The power to assign to a particular coach obviously implies the power to determine to which race the passenger belongs, as well as the power to determine who, under the laws of the particular state, is to be deemed a white, and who a colored, person. This question, though indicated in the brief of the plaintiff in error, does not properly arise upon the record in this case, since the only issue made is as to the unconstitutionality of the act, so far as it requires the railway to provide separate accommodations, and the conductor to assign passengers according to their race.

It is claimed by the plaintiff in error that, in an mixed community, the reputation of belonging to the dominant race, in this instance the white race, is 'property,' in the same sense that a right of action or of inheritance is property. Conceding this to be so, for the purposes of this case, we are unable to see how this statute deprives him of, or in any way affects his right to, such property. If he be a white man, and assigned to a colored coach, he may have his action for damages against the company for being deprived of his so-called 'property.' Upon the other hand, if he be a colored man, and be so assigned, he has been deprived of no property, since he is not lawfully entitled to the reputation of being a white man.

In this connection, it is also suggested by the learned counsel for the plaintiff in error that the same argument that will justify the state legislature in requiring railways to provide separate accommodations for the two races will also authorize them to require separate cars to be provided for people whose hair is of a certain color, or who are aliens, or who belong to certain nationalities, or to enact laws requiring colored people to walk upon one side of the street, and white people upon the other, or requiring white men's houses to be painted white, and colored men's black, or their vehicles or business signs to be of different colors, upon the theory that one side [163 U.S. 537, 550] of the street is as good as the other, or that a house or vehicle of one color is as good as one of another color. The reply to all this is that every exercise of the police power must be reasonable, and extend only to such laws as are enacted in good faith for the promotion of the public good, and not for the annoyance or oppression of a particular class. Thus, in Yick Wo v. Hopkins, 118 U.S. 356 , 6 Sup. Ct. 1064, it was held by this court that a municipal ordinance of the city of San Francisco, to regulate the carrying on of public laundries within the limits of the municipality, violated the provisions of the constitution of the United States, if it conferred upon the municipal authorities arbitrary power, at their own will, and without regard to discretion, in the legal sense of the term, to give or withhold consent as to persons or places, without regard to the competency of the persons applying or the propriety of the places selected for the carrying on of the business. It was held to be a covert attempt on the part of the municipality to make an arbitrary and unjust discrimination against the Chinese race. While this was the case of a municipal ordinance, a like principle has been held to apply to acts of a state legislature passed in the exercise of the police power. Railroad Co. v. Husen, 95 U.S. 465 ; Louisville & N. R. Co. v. Kentucky, 161 U.S. 677 , 16 Sup. Ct. 714, and cases cited on page 700, 161 U. S., and page 714, 16 Sup. Ct.; Daggett v. Hudson, 43 Ohio St. 548, 3 N. E. 538; Capen v. Foster, 12 Pick. 485; State v. Baker, 38 Wis. 71; Monroe v. Collins, 17 Ohio St. 665; Hulseman v. Rems, 41 Pa. St. 396; Osman v. Riley, 15 Cal. 48.

So far, then, as a conflict with the fourteenth amendment is concerned, the case reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and with respect to this there must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness, it is at liberty to act with reference to the established usages, customs, and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order. Gauged by this standard, we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances [163 U.S. 537, 551] is unreasonable, or more obnoxious to the fourteenth amendment than the acts of congress requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned, or the corresponding acts of state legislatures.

We consider the u derlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. The argument necessarily assumes that if, as has been more than once the case, and is not unlikely to be so again, the colored race should become the dominant power in the state legislature, and should enact a law in precisely similar terms, it would thereby relegate the white race to an inferior position. We imagine that the white race, at least, would not acquiesce in this assumption. The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other's merits, and a voluntary consent of individuals. As was said by the court of appeals of New York in People v. Gallagher, 93 N. Y. 438, 448: 'This end can neither be accomplished nor promoted by laws which conflict with the general sentiment of the community upon whom they are designed to operate. When the government, therefore, has secured to each of its citizens equal rights before the law, and equal opportunities for improvement and progress, it has accomplished the end for which it was organized, and performed all of the functions respecting social advantages with which it is endowed.' Legislation is powerless to eradicate racial instincts, or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal, one cannot be inferior to the other civilly [163 U.S. 537, 552] or politically. If one race be inferior to the other socially, the constitution of the United States cannot put them upon the same plane.

It is true that the question of the proportion of colored blood necessary to constitute a colored person, as distinguished from a white person, is one upon which there is a difference of opinion in the different states; some holding that any visible admixture of black blood stamps the person as belonging to the colored race (State v. Chavers, 5 Jones [N. C.] 1); others, that it depends upon the preponderance of blood ( Gray v. State, 4 Ohio, 354; Monroe v. Collins, 17 Ohio St. 665); and still others, that the predominance of white blood must only be in the proportion of three-fourths (People v. Dean, 14 Mich. 406; Jones v. Com., 80 Va. 544). But these are questions to be determined under the laws of each state, and are not properly put in issue in this case. Under the allegations of his petition, it may undoubtedly become a question of importance whether, under the laws of Louisiana, the petitioner belongs to the white or colored race.

The judgment of the court below is therefore affirmed.

Booker T. Washington--Atlanta Exposition

Booker T. Washington (1856–1915). Up from Slavery: An Autobiography. 1901.
XIV. The Atlanta Exposition Address

THE ATLANTA EXPOSITION, at which I had been asked to make an address as a representative of the Negro race, as stated in the last chapter, was opened with a short address from Governor Bullock. After other interesting exercises, including an invocation from Bishop Nelson, of Georgia, a dedicatory ode by Albert Howell, Jr., and addresses by the President of the Exposition and Mrs. Joseph Thompson, the President of the Woman’s Board, Governor Bullock introduced me with the words, “We have with us to-day a representative of Negro enterprise and Negro civilization.”
1
When I arose to speak, there was considerable cheering, especially from the coloured people. As I remember it now, the thing that was uppermost in my mind was the desire to say something that would cement the friendship of the races and bring about hearty cooperation between them. So far as my outward surroundings were concerned, the only thing that I recall distinctly now is that when I got up, I saw thousands of eyes looking intently into my face. The following is the address which I delivered:—
2
MR. PRESIDENT AND GENTLEMEN OF THE BOARD OF DIRECTORS AND CITIZENS. One-third of the population of the South is of the Negro race. No enterprise seeking the material, civil, or moral welfare of this section can disregard this element of our population and reach the highest success. I but convey to you, Mr. President and Directors, the sentiment of the masses of my race when I say that in no way have the value and manhood of the American Negro been more fittingly and generously recognized than by the managers of this magnificent Exposition at every stage of its progress. It is a recognition that will do more to cement the friendship of the two races than any occurrence since the dawn of our freedom.
3
Not only this, but the opportunity here afforded will awaken among us a new era of industrial progress. Ignorant and inexperienced, it is not strange that in the first years of our new life we began at the top instead of at the bottom; that a seat in Congress or the state legislature was more sought than real estate or industrial skill; that the political convention of stump speaking had more attraction than starting a dairy farm or truck garden.
4
A ship lost at sea for many days suddenly sighted a friendly vessel. From the mast of the unfortunate vessel was seen a signal, “Water, water; we die of thirst!” The answer from the friendly vessel at once came back, “Cast down your bucket where you are.” A second time the signal, “Water, water; send us water!” ran up from the distressed vessel, and was answered, “Cast down your bucket where you are.” And a third and fourth signal for water was answered, “Cast down your bucket where you are.” The captain of the distressed vessel, at last heeding the injunction, cast down his bucket, and it came up full of fresh, sparkling water from the mouth of the Amazon River. To those of my race who depend on bettering their condition in a foreign land or who underestimate the importance of cultivating friendly relations with the Southern white man, who is their next-door neighbour, I would say: “Cast down your bucket where you are”—cast it down in making friends in every manly way of the people of all races by whom we are surrounded.
5
Cast it down in agriculture, mechanics, in commerce, in domestic service, and in the professions. And in this connection it is well to bear in mind that whatever other sins the South may be called to bear, when it comes to business, pure and simple, it is in the South that the Negro is given a man’s chance in the commercial world, and in nothing is this Exposition more eloquent than in emphasizing this chance. Our greatest danger is that in the great leap from slavery to freedom we may overlook the fact that the masses of us are to live by the productions of our hands, and fail to keep in mind that we shall prosper in proportion as we learn to dignify and glorify common labour and put brains and skill into the common occupations of life; shall prosper in proportion as we learn to draw the line between the superficial and the substantial, the ornamental gewgaws of life and the useful. No race can prosper till it learns that there is as much dignity in tilling a field as in writing a poem. It is at the bottom of life we must begin, and not at the top. Nor should we permit our grievances to overshadow our opportunities.
6
To those of the white race who look to the incoming of those of foreign birth and strange tongue and habits for the prosperity of the South, were I permitted I would repeat what I say to my own race, “Cast down your bucket where you are.” Cast it down among the eight millions of Negroes whose habits you know, whose fidelity and love you have tested in days when to have proved treacherous meant the ruin of your firesides. Cast down your bucket among these people who have, without strikes and labour wars, tilled your fields, cleared your forests, builded your railroads and cities, and brought forth treasures from the bowels of the earth, and helped make possible this magnificent representation of the progress of the South. Casting down your bucket among my people, helping and encouraging them as you are doing on these grounds, and to education of head, hand, and heart, you will find that they will buy your surplus land, make blossom the waste places in your fields, and run your factories. While doing this, you can be sure in the future, as in the past, that you and your families will be surrounded by the most patient, faithful, law-abiding, and unresentful people that the world has seen. As we have proved our loyalty to you in the past, in nursing your children, watching by the sick-bed of your mothers and fathers, and often following them with tear-dimmed eyes to their graves, so in the future, in our humble way, we shall stand by you with a devotion that no foreigner can approach, ready to lay down our lives, if need be, in defence of yours, interlacing our industrial, commercial, civil, and religious life with yours in a way that shall make the interests of both races one. In all things that are purely social we can be as separate as the fingers, yet one as the hand in all things essential to mutual progress.
7
There is no defence or security for any of us except in the highest intelligence and development of all. If anywhere there are efforts tending to curtail the fullest growth of the Negro, let these efforts be turned into stimulating, encouraging, and making him the most useful and intelligent citizen. Effort or means so invested will pay a thousand per cent. interest. These efforts will be twice blessed—“blessing him that gives and him that takes.”
8
There is no escape through law of man or God from the inevitable:—

The laws of changeless justice bind
Oppressor with oppressed;
And close as sin and suffering joined
We march to fate abreast.
9
Nearly sixteen millions of hands will aid you in pulling the load upward, or they will pull against you the load downward. We shall constitute one-third and more of the ignorance and crime of the South, or one-third its intelligence and progress; we shall contribute one-third to the business and industrial prosperity of the South, or we shall prove a veritable body of death, stagnating, depressing, retarding every effort to advance the body politic.
10
Gentlemen of the Exposition, as we present to you our humble effort at an exhibition of our progress, you must not expect overmuch. Starting thirty years ago with ownership here and there in a few quilts and pumpkins and chickens (gathered from miscellaneous sources), remember the path that has led from these to the inventions and production of agricultural implements, buggies, steam-engines, newspapers, books, statuary, carving, paintings, the management of drug-stores and banks, has not been trodden without contact with thorns and thistles. While we take pride in what we exhibit as a result of our independent efforts, we do not for a moment forget that our part in this exhibition would fall far short of your expectations but for the constant help that has come to our educational life, not only from the Southern states, but especially from Northern philanthropists, who have made their gifts a constant stream of blessing and encouragement.
11
The wisest among my race understand that the agitation of questions of social equality is the extremest folly, and that progress in the enjoyment of all the privileges that will come to us must be the result of severe and constant struggle rather than of artificial forcing. No race that has anything to contribute to the markets of the world is long in any degree ostracized. It is important and right that all privileges of the law be ours, but it is vastly more important that we be prepared for the exercises of these privileges. The opportunity to earn a dollar in a factory just now is worth infinitely more than the opportunity to spend a dollar in an opera-house.
12
In conclusion, may I repeat that nothing in thirty years has given us more hope and encouragement, and drawn us so near to you of the white race, as this opportunity offered by the Exposition; and here bending, as it were, over the altar that represents the results of the struggles of your race and mine, both starting practically empty-handed three decades ago, I pledge that in your effort to work out the great and intricate problem which God has laid at the doors of the South, you shall have at all times the patient, sympathetic help of my race; only let this be constantly in mind, that, while from representations in these buildings of the product of field, of forest, of mine, of factory, letters, and art, much good will come, yet far above and beyond material benefits will be that higher good, that, let us pray God, will come, in a blotting out of sectional differences and racial animosities and suspicions, in a determination to administer absolute justice, in a willing obedience among all classes to the mandates of law. This, this, coupled with our material prosperity, will bring into our beloved South a new heaven and a new earth.
13

The first thing that I remember, after I had finished speaking, was that Governor Bullock rushed across the platform and took me by the hand, and that others did the same. I received so many and such hearty congratulations that I found it difficult to get out of the building. I did not appreciate to any degree, however, the impression which my address seemed to have made, until the next morning, when I went into the business part of the city. As soon as I was recognized, I was surprised to find myself pointed out and surrounded by a crowd of men who wished to shake hands with me. This was kept up on every street on to which I went, to an extent which embarrassed me so much that I went back to my boarding-place. The next morning I returned to Tuskegee. At the station in Atlanta, and at almost all of the stations at which the train stopped between that city and Tuskegee, I found a crowd of people anxious to shake hands with me.

Frederick Douglass, July 4th Speech

"The Meaning of July Fourth for the Negro"
Fellow Citizens, I am not wanting in respect for the fathers of this republic. The signers of the Declaration of Independence were brave men. They were great men, too ‹ great enough to give frame to a great age. It does not often happen to a nation to raise, at one time, such a number of truly great men. The point from which I am compelled to view them is not, certainly, the most favorable; and yet I cannot contemplate their great deeds with less than admiration. They were statesmen, patriots and heroes, and for the good they did, and the principles they contended for, I will unite with you to honor their memory.... ...

Fellow-citizens, pardon me, allow me to ask, why am I called upon to speak here to-day? What have I, or those I represent, to do with your national independence? Are the great principles of political freedom and of natural justice, embodied in that Declaration of Independence, extended to us? and am I, therefore, called upon to bring our humble offering to the national altar, and to confess the benefits and express devout gratitude for the blessings resulting from your independence to us?

Would to God, both for your sakes and ours, that an affirmative answer could be truthfully returned to these questions! Then would my task be light, and my burden easy and delightful. For who is there so cold, that a nation's sympathy could not warm him? Who so obdurate and dead to the claims of gratitude, that would not thankfully acknowledge such priceless benefits? Who so stolid and selfish, that would not give his voice to swell the hallelujahs of a nation's jubilee, when the chains of servitude had been torn from his limbs? I am not that man. In a case like that, the dumb might eloquently speak, and the "lame man leap as an hart."

But such is not the state of the case. I say it with a sad sense of the disparity between us. I am not included within the pale of glorious anniversary! Your high independence only reveals the immeasurable distance between us. The blessings in which you, this day, rejoice, are not enjoyed in common.‹The rich inheritance of justice, liberty, prosperity and independence, bequeathed by your fathers, is shared by you, not by me. The sunlight that brought light and healing to you, has brought stripes and death to me. This Fourth July is yours, not mine. You may rejoice, I must mourn. To drag a man in fetters into the grand illuminated temple of liberty, and call upon him to join you in joyous anthems, were inhuman mockery and sacrilegious irony. Do you mean, citizens, to mock me, by asking me to speak to-day? If so, there is a parallel to your conduct. And let me warn you that it is dangerous to copy the example of a nation whose crimes, towering up to heaven, were thrown down by the breath of the Almighty, burying that nation in irrevocable ruin! I can to-day take up the plaintive lament of a peeled and woe-smitten people!

"By the rivers of Babylon, there we sat down. Yea! we wept when we remembered Zion. We hanged our harps upon the willows in the midst thereof. For there, they that carried us away captive, required of us a song; and they who wasted us required of us mirth, saying, Sing us one of the songs of Zion. How can we sing the Lord's song in a strange land? If I forget thee, 0 Jerusalem, let my right hand forget her cunning. If I do not remember thee, let my tongue cleave to the roof of my mouth." Fellow-citizens, above your national, tumultuous joy, I hear the mournful wail of millions! whose chains, heavy and grievous yesterday, are, to-day, rendered more intolerable by the jubilee shouts that reach them. If I do forget, if I do not faithfully remember those bleeding children of sorrow this day, "may my right hand forget her cunning, and may my tongue cleave to the roof of my mouth!"

To forget them, to pass lightly over their wrongs, and to chime in with the popular theme, would be treason most scandalous and shocking, and would make me a reproach before God and the world. My subject, then, fellow-citizens, is American slavery. I shall see this day and its popular characteristics from the slave's point of view. Standing there identified with the American bondman, making his wrongs mine, I do not hesitate to declare, with all my soul, that the character and conduct of this nation never looked blacker to me than on this 4th of July! Whether we turn to the declarations of the past, or to the professions of the present, the conduct of the nation seems equally hideous and revolting. America.is false to the past, false to the present, and solemnly binds herself to be false to the future. Standing with God and the crushed and bleeding slave on this occasion, I will, in the name of humanity which is outraged, in the name of liberty which is fettered, in the name of the constitution and the Bible which are disregarded and trampled upon, dare to call in question and to denounce, with all the emphasis I can command, everything that serves to perpetuate slavery ‹ the great sin and shame of America! "I will not equivocate; I will not excuse"; I will use the severest language I can command; and yet not one word shall escape me that any man, whose judgment is not blinded by prejudice, or who is not at heart a slaveholder, shall not confess to be right and just.

But I fancy I hear some one of my audience say, "It is just in this circumstance that you and your brother abolitionists fail to make a favorable impression on the public mind. Would you argue more, an denounce less; would you persuade more, and rebuke less; your cause would be much more likely to succeed." But, I submit, where all is plain there is nothing to be argued. What point in the anti-slavery creed would you have me argue? On what branch of the subject do the people of this country need light? Must I undertake to prove that the slave is a man? That point is conceded already. Nobody doubts it. The slaveholders themselves acknowledge it in the enactment of laws for their government. They acknowledge it when they punish disobedience on the part of the slave. There are seventy-two crimes in the State of Virginia which, if committed by a black man (no matter how ignorant he be), subject him to the punishment of death; while only two of the same crimes will subject a white man to the like punishment. What is this but the acknowledgment that the slave is a moral, intellectual, and responsible being? The manhood of the slave is conceded. It is admitted in the fact that Southern statute books are covered with enactments forbidding, under severe fines and penalties, the teaching of the slave to read or to write. When you can point to any such laws in reference to the beasts of the field, then I may consent to argue the manhood of the slave. When the dogs in your streets, when the fowls of the air, when the cattle on your hills, when the fish of the sea, and the reptiles that crawl, shall be unable to distinguish the slave from a brute, then will I argue with you that the slave is a man!

For the present, it is enough to affirm the equal manhood of the Negro race. Is it not astonishing that, while we are ploughing, planting, and reaping, using all kinds of mechanical tools, erecting houses, constructing bridges, building ships, working in metals of brass, iron, copper, silver and gold; that, while we are reading, writing and ciphering, acting as clerks, merchants and secretaries, having among us lawyers, doctors, ministers, poets, authors, editors, orators and teachers; that, while we are engaged in all manner of enterprises common to other men, digging gold in California, capturing the whale in the Pacific, feeding sheep and cattle on the hill-side, living, moving, acting, thinking, planning, living in families as husbands, wives and children, and, above all, confessing and worshipping the Christian's God, and looking hopefully for life and immortality beyond the grave, we are called upon to prove that we are men!

Would you have me argue that man is entitled to liberty? that he is the rightful owner of his own body? You have already declared it. Must I argue the wrongfulness of slavery? Is that a question for Republicans? Is it to be settled by the rules of logic and argumentation, as a matter beset with great difficulty, involving a doubtful application of the principle of justice, hard to be understood? How should I look to-day, in the presence of Amercans, dividing, and subdividing a discourse, to show that men have a natural right to freedom? speaking of it relatively and positively, negatively and affirmatively. To do so, would be to make myself ridiculous, and to offer an insult to your understanding. There is not a man beneath the canopy of heaven that does not know that slavery is wrong for him.

What, am I to argue that it is wrong to make men brutes, to rob them of their liberty, to work them without wages, to keep them ignorant of their relations to their fellow men, to beat them with sticks, to flay their flesh with the lash, to load their limbs with irons, to hunt them with dogs, to sell them at auction, to sunder their families, to knock out their teeth, to burn their flesh, to starve them into obedience and submission to their mastcrs? Must I argue that a system thus marked with blood, and stained with pollution, is wrong? No! I will not. I have better employment for my time and strength than such arguments would imply.

What, then, remains to be argued? Is it that slavery is not divine; that God did not establish it; that our doctors of divinity are mistaken? There is blasphemy in the thought. That which is inhuman, cannot be divine! Who can reason on such a proposition? They that can, may; I cannot. The time for such argument is passed.

At a time like this, scorching irony, not convincing argument, is needed. O! had I the ability, and could reach the nation's ear, I would, to-day, pour out a fiery stream of biting ridicule, blasting reproach, withering sarcasm, and stern rebuke. For it is not light that is needed, but fire; it is not the gentle shower, but thunder. We need the storm, the whirlwind, and the earthquake. The feeling of the nation must be quickened; the conscience of the nation must be roused; the propriety of the nation must be startled; the hypocrisy of the nation must be exposed; and its crimes against God and man must be proclaimed and denounced.

What, to the American slave, is your 4th of July? I answer; a day that reveals to him, more than all other days in the year, the gross injustice and cruelty to which he is the constant victim. To him, your celebration is a sham; your boasted liberty, an unholy license; your national greatness, swelling vanity; your sounds of rejoicing are empty and heartless; your denunciation of tyrants, brass fronted impudence; your shouts of liberty and equality, hollow mockery; your prayers and hymns, your sermons and thanksgivings, with all your religious parade and solemnity, are, to Him, mere bombast, fraud, deception, impiety, and hypocrisy -- a thin veil to cover up crimes which would disgrace a nation of savages.There is not a nation on the earth guilty of practices more shocking and bloody than are the people of the United States, at this very hour.

Go where you may, search where you will, roam through all the monarchies and despotisms of the Old World, travel through South America, search out every abuse, and when you have found the last, lay your facts by the side of the everyday practices of this nation, and you will say with me, that, for revolting barbarity and shameless hypocrisy, America reigns without a rival....

...Allow me to say, in conclusion, notwithstanding the dark picture I have this day presented, of the state of the nation, I do not despair of this country. There are forces in operation which must inevitably work the downfall of slavery. "The arm of the Lord is not shortened," and the doom of slavery is certain. I, therefore, leave off where I began, with hope. While drawing encouragement from "the Declaration of Independence," the great principles it contains, and the genius of American Institutions, my spirit is also cheered by the obvious tendencies of the age. Nations do not now stand in the same relation to each other that they did ages ago. No nation can now shut itself up from the surrounding world and trot round in the same old path of its fathers without interference. The time was when such could be done. Long established customs of hurtful character could formerly fence themselves in, and do their evil work with social impunity. Knowledge was then confined and enjoyed by the privileged few, and the multitude walked on in mental darkness. But a change has now come over the affairs of mankind. Walled cities and empires have become unfashionable. The arm of commerce has borne away the gates of the strong city. Intelligence is penetrating the darkest corners of the globe. It makes its pathway over and under the sea, as well as on the earth. Wind, steam, and lightning are its chartered agents. Oceans no longer divide, but link nations together. From Boston to London is now a holiday excursion. Space is comparatively annihilated. -- Thoughts expressed on one side of the Atlantic are distinctly heard on the other.

The far off and almost fabulous Pacific rolls in grandeur at our feet. The Celestial Empire, the mystery of ages, is being solved. The fiat of the Almighty, "Let there be Light," has not yet spent its force. No abuse, no outrage whether in taste, sport or avarice, can now hide itself from the all-pervading light. The iron shoe, and crippled foot of China must be seen in contrast with nature. Africa must rise and put on her yet unwoven garment. 'Ethiopia, shall, stretch. out her hand unto Ood." In the fervent aspirations of William Lloyd Garrison, I say, and let every heart join in saying it:

God speed the year of jubilee The wide world o'er! When from their galling chains set free, Th' oppress'd shall vilely bend the knee, And wear the yoke of tyranny Like brutes no more. That year will come, and freedom's reign, To man his plundered rights again Restore. God speed the day when human blood Shall cease to flow! In every clime be understood, The claims of human brotherhood, And each return for evil, good, Not blow for blow; That day will come all feuds to end, And change into a faithful friend Each foe. God speed the hour, the glorious hour, When none on earth Shall exercise a lordly power, Nor in a tyrant's presence cower; But to all manhood's stature tower, By equal birth! That hour will come, to each, to all, And from his Prison-house, to thrall Go forth. Until that year, day, hour, arrive, With head, and heart, and hand I'll strive, To break the rod, and rend the gyve, The spoiler of his prey deprive -- So witness Heaven! And never from my chosen post, Whate'er the peril or the cost, Be driven.

William Lowndes Yancey, Confederate Fire Eater

The World’s Famous Orations.America: II. (1818–1865). 1906.

His Speech of Protest in the Charleston Convention William Lowndes Yancey (1814–63) (1860) Born in 1814, died in 1863; after being active against Nullification in South Carolina, he removed to Alabama in 1836; prominent as an Antiwhig orator in the Presidential campaign of 1840; elected to Congress in 1844; fought a bloodless duel with Congressman Clingman in 1845; author of the “Alabama Platform” of 1847; vigorously opposed the Clay Compromise of 1850; became famous as a secession orator before the Civil War; led the seceders from the Charleston Convention in 1860; went to Europe seeking recognition from England and France of the Southern Confederacy; thereafter until his death a member of the Confederate Senate.

IT 1 has been charged, in order to demoralize whatever influence we might be entitled to, either from our personal or political characteristics or as representatives of the State of Alabama, that we are disruptionists, disunionists per se; that we desire to break up the party in the State of Alabama, to break up the party in the Union, and to dissolve the Union itself. Each and all of these allegations, come from what quarter they may, I pronounce to be false. There is no disunionist, that I know of, in the delegation from the State of Alabama. There is no disruptionist that I know of, and if there are factionists in our delegation they could not have got in there with the knowledge upon the part of our State Convention that they were of so unenviable a character.

1 We have come here, with the twofold purpose of saving the country and of saving the Democracy; and if the Democracy will not lend itself to that high, holy and elevated purpose; if it can not elevate itself above the mere question of how perfect shall be its mere personal organization and how widespread shall be its mere voting success, then we say to you, gentlemen, mournfully and regretfully, that, in the opinion of the State of Alabama, and I believe, of the whole South, you have failed in your mission, and it will be our duty to go forth and make an appeal to the loyalty of the country to stand by that Constitution which party organizations have deliberately rejected.

2 The South is in a minority, we have been tauntingly told to-day. In the progress of events and the march of civilization and emigration, the Northwest has grown up, from a mere infant in swaddling clothes, at the formation of the Constitution, into the form and proportions of a giant people; and owing to its institutions and demand for white labor, and the peculiar nature of our institutions, tho advancing side by side with us in parallel lines, but never necessarily in conflict, it has surpassed us greatly in numbers. We are, therefore, in a numerical minority. But we do not murmur at this; we cheerfully accept the result; but we as firmly claim the right of the minority—and what is that? We claim the benefit of the Constitution that was made for the protection of minorities.

3 In the march of events, feeling conscious of your numerical power, you have aggressed upon us. We hold up between us and your advancing columns of numbers that written instrument which your and our fathers made, and by the compact of which, you with your power were to respect as to us and our rights. Our and your fathers made it that they and their children should for ever observe it; that, upon all questions affecting the rights of the minority, the majority should not rely upon their voting numbers, but should look, in restraint upon passion, avarice and lust for power, to the written compact, to see in what the minority was to be respected, and how it was to be protected, and to yield an implicit obedience to that compact. Constitutions are made solely for the protection of the minorities in government, and for the guidance of majorities.

4 Ours are now the institutions which are at stake; ours is the peace that is to be destroyed; ours is the property that is to be destroyed; ours is the honor at stake—the honor of children, the honor of families, the lives, perhaps, of all of us. It all rests upon what your course may ultimately make out of a great heaving volcano of passion. Bear with us then, while we stand sternly upon what is yet a dormant volcano, and say that we can yield no position until we are convinced that we are wrong. We are in a position to ask you to yield. What right of yours, gentlemen of the North, have we of the South ever invaded? What institution of yours have we ever assailed, directly or indirectly? What laws have we ever passed that have invaded, or induced others to invade, the sanctity of your homes, or to put your lives in jeopardy, or that were likely to destroy the fundamental institutions of your States? The wisest, the most learned and the best among you remain silent, because you can not say that we have done this thing.

5 If your view is right and ours is not one strictly supported by the compact, still the consequence, in a remote degree, of your proposition, may bring a dreaded result upon us all. If you have no domestic, no municipal peace at stake, and no property at stake, and no fundamental institutions of your liberties at stake, are we asking any too much of you to-day when we ask you to yield to us in this matter as brothers, in order to quiet our doubts? For in yielding you lose nothing that is essentially right. Do I state that proposition, gentlemen, any stronger than your own intellects and your own judgment will thoroughly endorse? If I do, I am unconscious of it.

6 Turn the pages of the recent past as regards the possessions acquired in the Mexican War, in which, gentlemen, it is but modestly stating the fact when I say that Southern chivalry was equal to Northern chivalry—that Southern blood was poured out in equal quantities with Northern blood—and Southern genius shone as bright upon the battle-field as Northern genius; and yet. when the battle was done, and the glittering spoil was brought forward, a vast and disproportionate quantity was given to the North, while the South was made to take the portion of an almost portionless son.

7 In the Northern States the Democratic party was once overwhelmingly in the ascendent. Why are they not so now? And why is the South more unitedly Democratic? The answer is ready. Antislavery sentiment is dominant in the North—slavery sentiment is dominant in the South. And, gentlemen, let me tell you, if it is not presumption in me to tell you, why you have grown weaker and weaker. It is my belief, from some observation and reflection upon this subject, that you are not now in the ascendent in the North, because you have tampered with the antislavery feeling of that section. I do not mean that you have tampered with it, or yielded to it, as a matter of choice. I do not mean that you are wilful traitors to your convictions of duty; but this is what I do mean: Finding an overwhelming preponderance of power in that antislavery sentiment, believing it to be the common will of your people, you hesitated before it; you trembled at its march. You did not triumph over the young Hercules in his cradle, because you made no direct effort to do so.

8 There is a conviction in our minds that we can not be safe in the Union, unless we obtain your unequivocal pledge to an administration of this government upon plainly avowed constitutional, congressional, as well as executive and judicial, protection of our rights. You have objected that this is a new feature in Democracy. But I say you have taken jurisdiction of this question in years past. In 1844 you took jurisdiction of the slavery question, to protect it from assaults. In 1848 you again took jurisdiction of the slavery question, tho to a limited extent. In 1852 you did the same; and in 1856 when the Territorial issues were forced upon the country by the Freesoilers, you demanded that the Democratic party should take one step farther in advance, in order to be up with the progress of the times, and with the march of aggression. You then added to these former platforms another plank, which it was then deemed would be sufficient to meet the issues urged.

9 And what was that plank? It was that Congress should not intervene to establish or abolish slavery in State or Territory. What is the fair and just meaning of this proposition? Lawyers and statesmen who are in the habit of construing laws and constitutions by the light of experience and by the rules which the great jurists of all ages have laid down for their construction, know that in order to decide what a law of doubtful import means, you must look at the subject matter, at the cause of its enactment; you must look at the evils it was designed to correct, and the remedy it was designed to give.

10 Gentlemen of the Convention, that venerable, that able, that revered jurist, the honorable chief justice of the United States, trembling upon the very verge of the grave, for years kept merely alive by the pure spirit of patriotic duty that burns within his breast—a spirit that will not permit him to succumb to the gnawings of disease and to the weaknesses of mortality—which hold him, as it were, suspended between two worlds, with his spotless ermine around him, standing upon the very altar of justice, has given to us the utterance of the Supreme Court of the United States upon this very question.

11 Let the murmur of the hustings be stilled—let the voices of individual citizens, no matter how great and respected in their appropriate spheres, be hushed, while the law, as expounded by the constituted authority of the country, emotionless, passionless and just, rolls in its silvery cadence over the entire realm, from the Atlantic to the Pacific, and from the ice-bound regions of the North to the glittering waters of the Gulf. What says that decision? That decision tells you, gentlemen, that the Territorial Legislature has no power to interfere with the rights of the slave-owner in the Territory while in a Territorial condition. That decision tells you that this government is a union of sovereign States; which States are coequal, and in trust for which coequal States the government holds the Territories. It tells you that the people of those coequal States have a right to go into these Territories, thus held in trust, with every species of property which is recognized as property by the States in which they live, or by the Constitution of the United States.

12 But, we are met right here with this assertion: we are told by the distinguished advocate of this doctrine of popular sovereignty that this opinion is not a decision of the Supreme Court, but merely the opinion of citizen Taney. He does not tell you, my countrymen, that it is not the opinion of the great majority of the Supreme Court bench. Oh, no! but he tells you that it is a matter that is obiter dicta, outside the jurisdiction of the Court; in other words, extra-judicial—that it is simply the opinion of Chief Justice Taney, as an individual, and not the decision of the Court because it was not the subject-matter before the Court.

13 Now, Mr. Douglas and all others who make that assertion and undertake to get rid of the. moral, the constitutional, the intellectual power of the argument, put themselves directly in conflict with the venerable chief justice of the Supreme Court of the United States, and with the recorded decision of the Court itself; because Chief Justice Taney, after disposing of the demurrer in that case, undertook to go on and to decide the question upon the facts and the merits of the case; and, said he, in doing that we are met with the objection, “That anything we may say upon that part of the case will be extrajudicial and mere obiter dicta. This is a manifest mistake,” etc.; and the Court—not Chief Justice Taney, but the whole Court, with but two dissenting voices—decided that it was not obiter dicta; that it was exactly in point, within the jurisdiction of the Court, and that it was the duty of the Court to decide it.

14 Now then, who shall the Democracy recognize as authority on this point—a statesman, no matter how brilliant and able and powerful in intellect, in the very meridian of life, animated by an ardent and consuming ambition, struggling as no other man has ever done for the high and brilliant position of candidate for the presidency of the United States, at the hand of this great party; or that old and venerable jurist, who, having filled his years with honor, leaves you his last great decision before stepping from the high place of earthly power into the grave, to appear before his Maker, in whose presence deception is impossible, and earthly position is as dust in the balance?

15 We simply claim that we, being coequal with you in the Territories, we having property which is as sacred to us as yours is to you, that is recognized as such by the Constitution of our common country—shall enjoy, unmolested, the rights to go into the Territories, and to remain there, and enjoy those rights as citizens of the United States, as long as our common government holds those Territories in trust for the States of which we are citizens. That is all.

16 We shall go to the wall upon this issue if events shall demand it, and accept defeat upon it. Let the threatened thunders roll and the lightning flash through the sky, and let the dark cloud now resting on the Southern horizon be pointed out by you. Let the world know that our people are in earnest. In accepting defeat upon that issue, my countrymen, we are bound to rise, if there is virtue in the Constitution. But if we accept your policy, where shall we be? We shall then have assented to the great fact involved in adopting your platform, that the government is a failure so far as the protection of the South in the Territories is concerned. We should be estopped for ever from asserting our principle simply by your pointing to the record that we had assented to the fact that the government could not be administered on a clear assertion of our rights. Is it true, gentlemen of the Northwest? Is it true, gentlemen of the whole country, that our government is a failure so far as the plain and unequivocal rights of the South are concerned? If it be a failure, we are not patriots unless we go to work at the very foundation stone of this error and reconstruct this party on a proper basis.

17 To my countrymen of the South I have a few words here to say. Be true to your constitutional duties and rights. Be true to your own sense of right. Accept of defeat here, if defeat is to attend the assertion of the right, in order that you may secure a permanent victory in whatever contest you carry a constitutional banner. Yield nothing of principle for mere party success—else you will die by the hands of your associates as surely as by the hand of your avowed enemy.

18 A party, in its noblest sense, is an organized body that pledges itself to the people to administer the government on a constitutional basis. The people have no interest in parties, except to have them pledged to administer the government for the protection of their rights. The leaders of the masses, brilliant men, great statesmen, may, by ever ignoring the people’s rights, still have a brilliant destiny in the rewards of office and the distribution of eighty millions annually; but when those leaders, those statesmen, become untrue to the people, and ask the people to vote for a party that ignores their rights, and dares not acknowledge them, in order to put and keep them in office, they ought to be strung upon a political gallows higher than that ever erected for Haman.

19 Note 1. From his speech in the National Democratic Convention at Charleston, April 28, 1860, in support of the protest of the Alabama delegation. Printed here from a rare pamphlet report of the proceedings of the convention, found in the New York Public Library. Yancey in this convention was the leader of the seceders, who afterward met in Baltimore and nominated Breckenridge. Woodrow Wilson says of Yancey’s work at this time: “It was he more than any other, who taught the South what Douglas really meant; he more than any other, who split the ranks of the Democratic party at Charleston, made the election of Douglas impossible, and brought Lincoln in.”

Declaration of Rights and Sentiments

Seneca Falls Declaration (1848)

One of the reform movements that arose during the "freedom's ferment" of the early nineteenth century was a drive for greater rights for women, especially in the political area. Women were heavily involved in many of the reform movements of this time, but they discovered that while they did much of the drudge work, with few exceptions (such as Dorothea Dix) they could not take leadership roles or lobby openly for their goals. Politically, women were to be neither seen nor heard. The drudgery of daily housework and its deadening impact on the mind also struck some women as unfair.

The convention at Seneca Falls, New York, in July 1848, was organized by Lucretia Mott and Elizabeth Cady Stanton, two Quakers whose concern for women's rights was aroused when Mott, as a woman, was denied a seat at an international antislavery meeting in London. The Seneca Falls meeting attracted 240 sympathizers, including forty men, among them the famed former slave and abolitionist leader, Frederick Douglass. The delegates adopted a statement, deliberately modeled on the Declaration of Inde-pendence, as well as a series of resolu-tions calling for women's suffrage and the reform of marital and property laws that kept women in an inferior status.

Very little in the way of progress came from the Seneca Falls Declaration, although it would serve for the next seventy years as the goal for which the suffrage movement strove. Women's suffrage and nearly all of the other reforms of this era were swallowed up by the single issue of slavery and its abolition, and women did not receive the right to vote until the adoption of the Nineteenth Amendment to the Constitution in 1920.

For further reading: Ellen C. DuBois, Feminism and Suffrage (1978); Eleanor Flexner, Century of Struggle (rev. ed. 1975); and Lois W. Banner, Elizabeth Cady Stanton (1980).

Seneca Falls Declaration

When, in the course of human events, it becomes necessary for one portion of the family of man to assume among the people of the earth a position different from that which they have hitherto occupied, but one to which the laws of nature and of nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes that impel them to such a course.

We hold these truths to be self-evident: that all men and women are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; that to secure these rights governments are instituted, deriving their just powers from the consent of the governed. Whenever any form of government becomes destructive of these ends, it is the right of those who suffer from it to refuse allegiance to it, and to insist upon the institution of a new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they were accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce them under absolute despotism, it is their duty to throw off such government, and to provide new guards for their future security. Such has been the patient sufferance of the women under this government, and such is now the necessity which constrains them to demand the equal station to which they are entitled.

The history of mankind is a history of repeated injuries and usurpations on the part of man toward woman, having in direct object the establishment of an absolute tyranny over her. To prove this, let facts be submitted to a candid world.

He has never permitted her to exercise her inalienable right to the elective franchise.

He has compelled her to submit to laws, in the formation of which she had no voice.

He has withheld from her rights which are given to the most ignorant and degraded men--both natives and foreigners.

Having deprived her of this first right of a citizen, the elective franchise, thereby leaving her without representation in the halls of legislation, he has oppressed her on all sides.

He has made her, if married, in the eye of the law, civilly dead.

He has taken from her all right in property, even to the wages she earns.

He has made her, morally, an irresponsible being, as she can commit many crimes with impunity, provided they be done in the presence of her husband. In the covenant of marriage, she is compelled to promise obedience to her husband, he becoming to all intents and purposes, her master--the law giving him power to deprive her of her liberty, and to administer chastisement.

He has so framed the laws of divorce, as to what shall be the proper causes, and in case of separation, to whom the guardianship of the children shall be given, as to be wholly regardless of the happiness of women--the law, in all cases, going upon a false supposition of the supremacy of man, and giving all power into his hands.

After depriving her of all rights as a married woman, if single, and the owner of property, he has taxed her to support a government which recognizes her only when her property can be made profitable to it.

He has monopolized nearly all the profitable employments, and from those she is permitted to follow, she receives but a scanty remuneration. He closes against her all the avenues to wealth and distinction which he considers most honorable to himself. As a teacher of theology, medicine, or law, she is not known.

He has denied her the facilities for obtaining a thorough education, all colleges being closed against her.

He allows her in Church, as well as State, but a subordinate position, claiming Apostolic authority for her exclusion from the ministry, and, with some exceptions, from any public participation in the affairs of the Church.

He has created a false public sentiment by giving to the world a different code of morals for men and women, by which moral delinquencies which exclude women from society, are not only tolerated, but deemed of little account in man.

He has usurped the prerogative of Jehovah himself, claiming it as his right to assign for her a sphere of action, when that belongs to her conscience and to her God.

He has endeavored, in every way that he could, to destroy her confidence in her own powers, to lessen her self-respect, and to make her willing to lead a dependent and abject life.

Now, in view of this entire disfranchisement of one-half the people of this country, their social and religious degradation--in view of the unjust laws above mentioned, and because women do feel themselves aggrieved, oppressed, and fraudulently deprived of their most sacred rights, we insist that they have immediate admission to all the rights and privileges which belong to them as citizens of the United States.

In entering upon the great work before us, we anticipate no small amount of misconception, misrepresentation, and ridicule; but we shall use every instrumentality within our power to effect our object. We shall employ agents, circulate tracts, petition the State and National legislatures, and endeavor to enlist the pulpit and the press in our behalf. We hope this Convention will be followed by a series of Conventions embracing every part of the country.

Source: E.C. Stanton, S.B. Anthony and M.J. Gage, eds., History of Women's Suffrage, vol. 1 (1887), 70.