Vanderbilt Law Review

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In the second decade of the twentieth century, the Supreme Court decided four prominent (groups of) cases involving race. On each occasion, the civil rights claim won in some significant sense. One set of cases involved so-called peonage legislation-laws that coerced (primarily) black labor. In Bailey v. Alabama, the Court invalidated under the federal Peonage Act of 18672 and the Thirteenth Amendment an Alabama law making it a crime to enter, with fraudulent intent, into a labor contract that provided for advance payment of wages; the law made breach of the contract prima facie evidence of fraudulent intent, and Alabama evidence law did not permit laborers to rebut that presumption with their own testimony. Similarly, in United States v. Reynolds the Court struck down under the Thirteenth Amendment and the 1867 Peonage Act an Alabama law that criminalized breach of surety agreements under which private parties paid the costs and fines necessary to liberate convicted criminals from jail in exchange for promises to labor for a specified time.

Second, the Court in McCabe v. Atchison, Topekhz & Santa Fe Railway Co. ruled that an Oklahoma law permitting railroads to exclude blacks from first class accommodations, rather than providing separate but equal facilities, violated the Fourteenth Amendment, notwithstanding the disparate per capita demand for such accommodations among the races. Third, the Court in Guinn v. Oklahoma and Myers v. Anderson6 invalidated under the Fifteenth Amendment grandfather clauses which had protected illiterate whites from disfranchisement by exempting from literacy tests those persons who were enfranchised in the mid-1860s (before southern blacks received the right to vote) or who were descended from such persons. Finally, in Buchanan v. Warley the Court invalidated a Louisville, Kentucky, ordinance that segregated neighborhood blocks by race.

My goal in this Article is to "contextualize" these Progressive era race cases. That is, I seek to situate these decisions within the broader social, political, economic, and ideological context within which the Supreme Court Justices operated. This effort is part of a larger project of mine, which has been to contextualize twentieth- century constitutional history. In previous articles I have endeavored to understand both Brown v. Board of Education specifically and the post-War civil rights and civil liberties revolutions generally in terms of the background extralegal forces that rendered those decisions possible. Here I shall simply sketch the contours of this approach to constitutional history.