Journal Issue Date: Jan-Feb 2021
Journal Name: Vol. 57 No. 1
The name Rosa Parks resonates deeply in the nation’s civil rights history as “the founding symbol of the Civil Rights Movement.1 She bravely refused to move to the back of a bus and started what became known as the Montgomery Bus Boycott and brought a young, 26-year-old minister named Dr. Martin Luther King, Jr. into national prominence. Others recall the name of Claudette Colvin, a 15-year-old girl who defied the segregation law on the buses in Alabama before Rosa Parks. Apparently, civil rights leaders felt that Parks, as an adult and secretary of the local NAACP branch, would be a more appropriate person to be the face of the public challenge to segregated Alabama than Colvin or other teens.2
But, precious fewer recall the woman who truly was the progenitor of these later-day heroines — Sallie J. Robinson. She was the woman who sued the Memphis & Charleston Railroad Company for refusing her a seat in the ladies section in May 1879, solely because of the color of her skin. Along with her husband, Richard A. Robinson, she sued under the Civil Rights Act of 1875, a Reconstruction-era federal law designed to prohibit discrimination on the basis of race in public accommodations.
Little is known about Sallie Robinson. Court records indicate that she was “formerly in slavery.”3 According to a census report from 1920, she was born in 1850 or 1851 and resided for a time in Palestine, Mississippi.
Her case proceeded in federal court before U.S. District Court Judge Eli Shelby Hammond, a former captain in the Confederate Army who was nominated to the federal bench by President Rutherford B. Hayes.4 Handwritten trial notes indicate that Sallie Robinson was a resident of Mississippi who purchased a train ticket with her nephew Joseph Robinson to travel from Grand Junction, Tennessee, to Lynchburg, Virginia. The trial conductor referred to Sallie Robinson as “a young good-looking mulatto woman about 28 years old” and her nephew “was a young man of light complexion, light hair and light blue eyes.”5 The conductor assumed that Joseph Robinson was “a white man traveling with a colored woman.”6 The conductor assumed that Sallie Robinson was a prostitute.
Clipping from The Chicago Tribune, Dec. 21, 1884.
They had first-class tickets but the conductor of the train refused Sallie Robinson entrance into the so-called “ladies car” because of her skin color. He grabbed her arm so forcefully that he spun her around and she suffered injuries.7 She allegedly had bruises on it for more than a week. Instead, the Robinsons had to ride in the so-called smoking car, not what they had purchased.8 A. Leon Higginbotham explained: “Neither the fact that Mrs. Robinson had purchased a first-class ticket, nor the fact that she and her nephew did not threaten any disturbance, was sufficient to overcome the inferior status the conductor accorded her.”9
Unsurprisingly given the times and composition of juries at that time, the Robinsons lost their case. Sallie Robinson and her husband appealed to the U.S. Supreme Court. Her case became one of five cases that collectively were appealed to the U.S. Supreme Court and became known as the Civil Rights Cases (1883).10 The cases came from federal courts in California, Kansas, Missouri, New York, and Tennessee. The U.S. Supreme Court ruled that Congress lacked the power to pass the Civil Rights Act of 1875.
The court majority, in an opinion by Justice Joseph Bradley, noted that the “[t]he essence of the law is … that such enjoyment [of places of public accommodation] shall not be subject to any conditions applicable only to citizens of a particular race or color, or who had been in a previous condition of servitude.”11 Bradley reasoned, however, that the Fourteenth Amendment only limited state or governmental actors, not private actors such as a railroad.
“It is State action of a particular character that is prohibited,” Bradley wrote. “Individual invasion of individual rights is not the subject-matter of the amendment.”12 He added that the Fourteenth Amendment “does not authorize Congress to create a code of municipal law for the regulation of private rights.”13
In perhaps the most oft-quoted passage of his opinion, Bradley wrote that “[w]hen a man has emerged from slavery, and by aid of beneficient legislation has shaken off the inseparable concomitants of that state, there must be some stage in the process ... [where he] … ceases to be the special favorite of the laws.”14 This passage has achieved infamy, as it seemingly downplays the pervasive discrimination faced by African-Americans.15
Justice John Marshall Harlan I, the so-called “Great Dissenter.”
Fortunately, at least one justice recognized the plight suffered by Sallie Robinson and the other civil rights plaintiffs. That was none other than Justice John Marshall Harlan I, the so-called “Great Dissenter,” who served on the court from 1877 to 1911. (He is often referred to as Harlan I, because his grandson, John Marshall Harlan II, also served on the U.S. Supreme Court from 1955 to 1971.) Harlan I criticized his colleagues in the majority for ignoring the intent of the 39th Congress in passing the Civil Rights Act of 1875.16 Harlan I reasoned that discrimination practiced by private companies in their quasi-public roles, such as a railroad company, constitutes a badge and incident of slavery forbidden by the Thirteenth Amendment.17
Harlan I also questioned the majority’s narrower reading of the Fourteenth Amendment, writing that “[t]his court has always given a broad and liberal construction to the Constitution, so as to enable Congress, by legislation, to enforce rights secured by that instrument.”18 He also questioned the idea that places of accommodation are truly private actors, explaining: “In every material sense applicable to the practical enforcement of the Fourteenth Amendment, railroad corporations, keepers of inns, and managers of places of public amusement are agents or instrumentalities of the State, because they are charged with duties to the public, and are amenable, in respect of their duties and functions, to governmental regulation.”19
Harlan I noted that his colleagues in the majority reserved the question whether Congress had the power to enact federal legislation based on its Commerce Clause powers to regulate interstate commerce. Harlan I emphasized that Robinson’s case presented an opportunity for the court to decide — not avoid — the question. After all, Harlan I noted, Ms. Robinson, a citizen of Mississippi, bought a ticket to travel across state lines from Tennessee to Virginia.20
Harlan I concluded that the majority failed to recognize that “[t]he supreme law of the land has decreed that no authority shall be exercised in this country upon the basis of discrimination, in respect of civil rights, against freemen and citizens because of their race, color, or previous condition of servitude.”21 Harlan I’s biographer Tinsley Yarbrough calls his dissent in The Civil Rights Cases “to be among his most eloquent and forceful, if not his most tightly reasoned, efforts.”22 The man known as “the Great Dissenter” dissented in many other cases, including his most famous sole dissent in Plessy v. Ferguson23 when his colleagues sanctioned the noxious doctrine of separate but equal.
Fortunately, the country eventually adopted a vision closer to that of Justice Harlan I. Congress passed the Civil Rights Act of 1964 and justified its authority under the Commerce Clause. The landmark civil rights law “hastened the end of legal Jim Crow.”24
Many remember and celebrate Justice John Marshall Harlan I as “the Great Dissenter.” Many celebrate the profound importance of Rosa Parks and in more recent years Claudette Colvin as civil rights heroines.
But, Sallie J. Robinson too often has been forgotten. We should also celebrate her courage in the face of abject racism.
DAVID L. HUDSON JR. is an assistant professor of law at Belmont University College of Law where he teaches classes in Legal Writing and Constitutional Law. He is the author, co-author, or co-editor of more than 40 books. He also teaches at the Nashville School of Law. In 2018, the Nashville School of Law awarded him its “Distinguished Faculty” award.
1. E.R. Shipp, “Rosa Parks, 92, Founding Symbol of the Civil Rights Movement, Dies,” The New York Times, Oct. 25, 2005. Accessible online at https://www.nytimes.com/2005/10/25/us/rosa-parks-92-founding-
2. Margot Adler, “Before Rosa Parks, There Was Claudette Colvin,” NPR.org, March 15, 2009. Accessible online at https://www.npr.org/2009/03/15/101719889/before-rosa-parks-there-was-claudette-colvin.
3. “Robinson v. Memphis & Charleston Railroad,” National Archives at Atlanta, accessible at https://www.archives.gov/atlanta/exhibits/item386-exh.html
4. Federal Judicial Center, “Eli Shelby Hammond,” accessible online at https://www.fjc.gov/history/courts/u.s.-district-court-western-distritennessee-judges.
5. “Robinson v. Memphis & Charleston Railroad,” National Archives at Atlanta, accessible at https://www.archives.gov/atlanta/exhibits/item386-exh.html
6. Joan R. Tarpley, “Blackwomen, Sexual Myth, and Jurisprudence,” 69 Temple L. Rev. 1343, 1362 (1996).
7. A. Leon Higginbotham, Shades of Freedom 102 (1996).
8. Robinson v. Memphis & Charleston Railroad,” National Archives at Atlanta, accessible at https://www.archives.gov/atlanta/exhibits/item386-exh.html.
9. Higginbotham at 104.
10. 109 U.S. 3 (1883).
11. Id. at 9-10
12. Id. at 11.
13. Id. at 11.
14. Id. at 25.
15. David L. Hudson Jr. Equal Protection: Documents Decoded (ABC-CLIO, 2018) at 20.
16. Civil Rights Cases, 109 U.S. at 26 (J. Harlan, dissenting).
17. Id. at 43 (J. Harlan, dissenting).
18. Id. at 50-51 (J. Harlan, dissenting).
19. Id. at 58-59 (J. Harlan, dissenting).
20. Id. at 60 (J. Harlan, dissenting).
21. Id. at 62 (J. Harlan, dissenting).
22. Tinsley E. Yarbrough, Judicial Enigma: The First Justice Harlan (Oxford University Press, 1995) at 149.
23. 136 U.S. 537 (1896).
24. Library of Congress, “The Civil Rights Act of 1964: A Long Struggle for Freedom,” accessible online at https://www.loc.gov/exhibits/civil-rights-act/epilogue.html.
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