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 Abstract

Excerpted From: Aderson Bellegarde François, A Lost World: Sallie Robinson, The Civil Rights Cases, and Missing Narratives of Slavery in the Supreme Court's Reconstruction Jurisprudence, 109 Georgetown Law Journal 1015 (April, 2021) (471 Footnotes) (Full Document)

The Supreme Court tells stories about who and what we are--the sort of “knowledge about [the] past that is shared, mutually acknowledged and reinforced by a collectivity.” The Court is uniquely suited for this role: not just because of the moral authority it brings to the task of adjudication, and not just because of the rituals it uses for its decisionmaking, but also because the very act of telling and retelling in issuing decisions results in layers of these stories being deposited on and shaping constitutional doctrine. In time, and with each iteration--like sandy water flowing over sedimentary rock--these stories settle, gather together, harden, and become part of constitutional topography--sheer repetition makes them reified. These stories, a mix of fact and aspiration, a mingling of doctrine and metaphors, rubbed smooth of contradictions, translated for public consumption, even when hotly contested in the caverns of academia, keep us bound to a “conscious community of memory,” pact about the larger lessons to be derived from our past. There is a federalism story about how the Founders' experience with a distant, indifferent king led them to set up a government with defined limited federal power; a free-speech story about how our collective ability to think and speak freely contributes to an open marketplace of ideas; and a right-to-bear-arms story about how the Second Amendment serves as a bulwark against government tyranny. There is no equivalent story--at least none that the Court itself has had a role in telling--about how slavery and white supremacy shaped the American identity.

To the contrary, the singular effect--if not purpose--of the Supreme Court's jurisprudence on the experience, status, and place of Black people in America has been to erase slavery from the constitutional stories the Court tells about American democracy. The Court has managed this feat so successfully that the main role slavery plays in the collective constitutional imagination today is as remembrance of how its abolition affirmed the genius of the Framers' vision and redeemed the righteousness of the country's Founding. This act of willful forgetting began in earnest during Reconstruction, when, even as Black people roamed the countryside and searched newspaper ads for mothers, fathers, sons, and daughters sold away to distant plantations before the war, the Court explained that the Thirteenth Amendment abolished nothing more than involuntary servitude, that neither the Thirteenth nor the Fourteenth Amendment imposed an obligation upon the federal government to protect Black people from white violence, and that Black people's invocation of the Fourteenth Amendment's equality principle was akin to their wanting to become a special favorite of the law.

This Article is an attempt at digging up one story of slavery and trying to input it into the collective constitutional imagination. The Article uses one decision to tell the story--the Civil Rights Cases. It also uses one person--a woman named Sallie Robinson. Apart from those she loved and who loved her in return, Sallie lived out her days in relative obscurity, but that life-- at least the pieces and fragments of it we can gather--is as legitimate a part of our constitutional myth making as the lives of the men on the Court whose writings hardly ever acknowledged that people like Sallie existed and mattered.

This is a story in which the central character stays mostly hidden and silent, never showing her full face, never speaking in her own voice. Her name is Sallie. She was born into slavery in Tennessee in or about 1851. She survived the Civil War, got married, and had a son. In the early morning hours of May 22, 1879, she boarded a train at Grand Junction, Tennessee; her final stop: Lynchburg, Virginia. Though Sallie held a ticket for the first-class ladies' car, the train conductor directed her to the second-class smoking car because he believed that other first-class passengers would object to her presence. But soon after the train left Grand Junction, the conductor reconsidered, and when the train pulled into the next stop at Salisbury, Tennessee, Sallie transferred to the first-class car. She sat in the smoking car for only one stop--barely six miles and no more than fifteen minutes. When she returned home from Lynchburg, however, Sallie sued the railroad for violation of the Civil Rights Act of 1875, which made it a criminal offense to deny a person equal accommodation in public conveyances, inns, theaters, and other places of public amusement on account of their race, color, or previous condition of servitude. The Act also created a private right of action for such a violation.

Sallie's suit against the railroad, Robinson v. Memphis & Charleston Railroad Co., is one of the few cases under the Civil Rights Act of 1875 to go to a jury trial and for which a more or less complete record of the proceedings survive. Her case is also one of the six cases the United States Supreme Court originally joined under the rubric the Civil Rights Cases to decide that Congress lacked power under Section 2 of the Thirteenth Amendment and Section 5 of the Fourteenth Amendment to outlaw race-based discrimination by private actors in places of public accommodation. Sallie's story does not feature prominently in the Court's opinion; the events of her night on the train are sketched out in no more than five sentences at the start of the opinion, not referred to again in the majority opinion, and mentioned only in passing in the dissent. In fact, Sallie's name does not appear anywhere in the published opinion, not even in the caption, which was styled as “Robinson and wife” in reference to Sallie's husband, Richard, who joined her as a plaintiff in her suit, though he was not her companion on the trip from Grand Junction to Lynchburg.

The conventional take on the Court's race jurisprudence in the Reconstruction Era is that it sought to answer two fundamental questions: first, whether and in what form the Reconstruction Amendments created new federally protected rights benefitting citizens and newly freed Black people in particular, and second, whether and to what extent the Amendments recalibrated the balance of power between the states and the federal government in general and Congress in particular. Whether one thinks the Court got these questions basically right or badly wrong depends a great deal on whether one believes that the Reconstruction Court was hostile to the cause of racial liberation and abandoned “the freed slaves to the prejudices of their former owners,” or whether one thinks that the Reconstruction Court has been unfairly maligned and that, in fact, its jurisprudence “supplied broad possibilities for the federal protection of black physical safety and voting rights.”

However, my view is that these two questions, framed as they are, at best elide and at worst obscure the far more basic and preliminary question: whether and to what extent the Reconstruction Amendments rewrote the 1787 Constitution from a social contract grounded in racial slavery to one based in civil freedom. In one form or another, every single race case that came before the Court during the Reconstruction Era was about slavery. Even when, as in Blyew v. United States, the question was one of a statutory interpretation rather than constitutional meaning, slavery remained the one constant. As Justice Harlan would recognize in his dissent in the Civil Rights Cases, the central challenge in each of these cases was whether the Reconstruction Amendments simply prohibited race-based slavery as an institution or established a new universal right to civil freedom throughout the United States.

Yet slavery--both the historical facts of it, as well as the present and future “badges and incidents” of it registered in the Court's jurisprudence at a time when one would have expected it to have been a central character in the Court's race narrative. This was neither an oversight nor an accident, but rather the natural--if not, inevitable--consequence of the restorative arc that the law in general and courts in particular always bend toward when telling stories.

The stories we tell only have two possible endings: things go back to the way they used to be, or things will never be the same; all's well that ends well, or the world as we knew it is no more; Dorothy clicks her heels and is back in Kansas, or Neo masters the code for the Matrix and goes to war against the machines; restoration, or transformation. Either ending is capable of accommodating innumerable genres and countless plots. In restorative plots with happy endings, the superhero saves the city from destruction, the monster dies, love redeems, all is forgiven. Restorative plots with tragic codas are existential meditations about how “the earth turns and the sun inexorably rises and sets, and one day, for each of us, the sun will go down for the last, last time.” Gatsby dies, never having reached the green light, while Daisy and Tom go on with their careless lives; Anna Karenina does not rise from the train tracks; Madame Bovary swallows arsenic. Transformative plots with new beginnings are every story of paradise gained and love found: the light turns on the world in Genesis; Mr. Darcy and Elizabeth Bennet settle down into Derbyshire; “[E]verything's all right,” Shane tells Joey, “[a]nd there aren't any more guns in the valley.” Transformative dystopian plots are always variations of humans cast out of paradise, victims of their own hubris or worst instincts: Adam and Eve condemned to a life of suffering and sorrow; the last natural baby born in The Children of Men; the young clones dying after their last organs are harvested for older donors in Never Let Me Go.

But while fiction and real life move easily between restorative and transformative endings, courts are most at home telling restorative stories. Even when--particularly when--courts confront transformative social moments, they inevitably translate them, however awkwardly, into restorative narratives. Brown v. Board of Education, arguably the most transformative decision the Supreme Court has ever rendered, tells a restorative story, in which racial segregation took root after Reconstruction because we misunderstood the true meaning of the Fourteenth Amendment. As such, holding “separate but equal” unconstitutional was not a transformation of American society but a restoration of the Equal Protection Clause to its rightful place in constitutional law.

There are, admittedly, methodological, institutional, cultural, and philosophical reasons for the law's default to restorative narratives. Methodologically, stare decisis, the engine that drives the machine of judicial reasoning, is by nature restorative--in that it looks back to past cases to supply authoritative precedent for present cases. Institutionally, as an allegedly nonpolitical branch, it is arguably the Court's role not to bring about transformation but merely to provide constitutional imprimatur to change once it has already become a fact of social life and once the political branches have validated it through legislation. Culturally, the law's “distinguishing commitments ... to authority, hierarchy, [and] intellectual unity” render it, at bottom, a conservative institution that resists change and seeks to preserve what already exists. And, philosophically, originalism and its adherents have turned constitutional interpretation into an Orpheus-like exercise, always turning for a backwards glance at something fated to vanish the very moment one's eyes fall upon it.

But whatever the reasons for law's restorative narrative default, it does come at a particular cost: a restorative ending--in fiction, in life, in law--is a way of wiping the slate clean, of going home again, of regaining innocence, of forgetting. This forgetting is powerful and lasting because it uses the same tools by which law makes remembering powerful and lasting. Law is “an especially powerful institution for the creation of collective memory” because the ritual processes that courts employ to decide cases, the iterative methods that law uses to turn precedent into a virtual “mnemonic” device, and the coercive power with which the state enforces laws-- such that, in a quite literal sense, “legal interpretation takes place in a field of pain and death” serve to stamp law narratives unto our collective memory. These very same ritual processes, mnemonic methods, and coercive apparatuses that harden collective memory into a national story also serve as equally effective tools for shared forgetting because what the law leaves out serves as a sign and symbol of the memories that are not worth cataloguing and storing in our collective imagination.

Perhaps it is not surprising that Sallie's story is absent from Reconstruction. Sallie, like two of the other four plaintiffs included in the Civil Rights Cases--and indeed, like the vast majority of Black litigants during Reconstruction--was born into slavery. Narrative theoretician and linguist James E. Young writes that the challenge of collective memory is how a nation “incorporate[s] its crimes against others into its national memorial landscape,” when “state-sponsored memory of a national past aims to affirm the righteousness of a nation's birth.”

Little by little, time after time, case by case, as it developed its Reconstruction jurisprudence, the Court cut away, shed, and left behind, like limbs thrown on the altar as a sacrifice, bits and pieces of the slavery story, such that today, slavery--again, both its historical facts and its badges and incidents--does not play a meaningful role in the constitutional stories we tell, except when remembrance of its abolition serves to reaffirm the righteousness of the nation's rebirth after the Civil War. Finding these pieces, stitching them together--grafting them back unto the collective memory--is not some polemical jeremiad about the need to atone for the sins of slavery but rather a necessary examination of how our postbellum collective constitutional memory might have turned out differently had slavery played as central a role in constitutional narrative as the colonists' rebellion against a distant tyrannical king played--and to this day, continues to play--in the collective memory of the Founding.

My purpose here is to begin reincorporating Sallie's story into the national jurisprudential landscape. Collecting these pieces is not straightforward, and so I will not offer, as an author would ordinarily be expected to do at this point, a conventional roadmap. There is no Part I that closely previews a Part II, conveniently leading to a Part III, before satisfyingly closing with a normative coda. Instead, this Article tells a discursive--even digressive--story; it jumps from past to present, from history to law, from Congress to the Supreme Court, from Sallie to railroad tycoons to barbecue restauranteurs, and back again. But like the Court's own penchant for restorative narratives, the story will find its way back to where it began, even if, unlike the Court's stories, it will not provide a resolution with all loose ends neatly tied up.

The story begins on a train.

[. . .]

It is probably safe to say that legal scholarship on the Supreme Court's race jurisprudence during Reconstruction will always vacillate between opposing poles: a Court openly hostile to the cause of Black liberation and a Court unfairly denied credit for protecting Black physical safety and voting rights. I, for one, do not find particularly interesting the question of whether the Court was a foe or a friend of Reconstruction; whatever the justices may have intended, the precedent they set, for better or for worse, speaks for itself. And I will not here pretend to stake some vague common ground of the Court being both the destroyer and savior of Reconstruction. At the end of the day, it seems to me that the Court's failure--both during Reconstruction and to this day--comes down to its inability or unwillingness to place slavery at the center of the stories it told--and tells--about the Constitution. For me, this is indeed a failure, though I imagine for others, it might be deemed a success, given that the removal of slavery from the collective constitutional memory leaves the field wide open for telling stories of the Constitution with happy restorative endings.

As I tried telling Sallie's story, a recurring image of the Court and slavery formed in my mind: It seemed as if, through Blyew v. United States, and United States v. Cruikshank, and United States v. Reese, and the Civil Rights Cases, the Court treated slavery as something to be slowly but inexorably sloughed off, cast aside, and left behind like unclean detritus--until by the end of Reconstruction, almost nothing of it remained in the Court's jurisprudence and even less in our collective constitutional memory. I imagined then that in telling Sallie's story, I would turn around, walk back, track down the pieces, and put them back together. In this metaphor, of course, I would find Sallie around a corner somewhere back at the start. That did not quite happen. I was, as they say, starting so late and from so far back.

That Sallie remains a mystery is--in a strictly legal, if not scholarly, sense--an immaterial fact. Are there any facts about Sallie's life before or after her action against the Memphis and Charleston that would radically change our understanding of the Civil Rights Cases if we somehow found them buried in some private trove of family letters? Perhaps not. And yet, if I am being honest, while Sallie may not have been the material inspiration for this Article, at some point, and for reasons that are difficult to put into words, she became the only character in the story I truly cared about. And again, if I am being honest, I spent an incalculable amount of time thinking about her, trying to find her, trying to imagine her--probably far more than the time that I spent thinking about the route of the Memphis and Charleston Railroad, or the fortunes of Charles McGhee's descendants, or indeed even Justice Harlan's dissent. Little by little, Sallie became the repository of all that has always been--at least to me--indecipherable about the Civil Rights Cases, as if unearthing and retelling the details of her life would somehow say something, even if only metaphorically, about the Court's race jurisprudence during Reconstruction.

I wondered what business she had in Lynchburg, Virginia, or if indeed Lynchburg was her final destination in Virginia; why her nephew Joseph, rather than her husband Richard, was her companion on the trip; whether she had made the trip before, or whether it was something akin to a once-in-a-lifetime journey; whether it was her idea or Joseph's to go see McGhee; what it was about her background that led her to demand that the vice president of the railroad personally address her complaint; why she brought suit after being denied access to the first-class car for a mere fifteen-minute interval in what was no doubt a days-long journey; how she came to hire one of the most prominent attorneys in Memphis; how much, if anything, it must have cost her to do so; what it must have felt like to sit in court and listen to the conductor tell the jurors that he took her for a prostitute; why she did not let the matter rest after losing in the district court but kept going all the way to the Supreme Court.

But beyond her case, I wondered too about Sallie's life: whether her father had been her first master; whether she had grown up with any siblings; whether she had been sold away from her mother; how she had fared during the war; whether buried in some newspaper somewhere was an advertisement from her, like from so many formerly enslaved people, that read: “Help me to find my people.” I wondered where and how she came to marry Richard. I wondered whether their son, like Joseph, could have passed for white; whether he did, in fact, pass, becoming fully American, marrying away all traces of his Black past, perhaps eventually turning into as much of an American success story as the white McGhees--his descendants becoming governors, senators, captains of industry, university presidents, their names on libraries, museums, and hospital wings; or whether the family stayed Black even though, as generations passed, it became ever more difficult to tell. I wondered whether Sallie lived long enough to learn in 1896, when she would have been forty-five, about Plessy v. Ferguson, constitutionalizing the doctrine of “separate but equal.” Perhaps she even lived until 1954--she would have been 103 years old--long enough to see the Supreme Court change course in Brown v. Board of Education and hold that “separate but equal” violated the Equal Protection Clause of the Fourteenth Amendment. I wondered whether, as she grew older, she passed on her story to her grandchildren and great-grandchildren about how their grandmother and great-grandmother, almost a century before Rosa Parks, stood up against segregation; or whether the genetic line begun by Richard and Sallie Robinson, like the one begun by Abraham and Sarah McGhee on the John A. Walker farm in northern Mississippi, ended with their son Richard Jr. and disappeared without a trace after just one generation.

I do not know in which of SchrÖdinger's parallel universes Sallie lived to old age or died young, had a long line of descendants or was one of the last of her line, passed for white or stayed Black, saw the beginning of the end of Jim Crow or died under racial segregation, stayed in Mississippi or moved North to look for the warmth of other suns. No matter how long I searched for her, she remained a phantom, faint and tenuous, always walking away, turning this way, then that way, never showing her face, except for brief moments, when I would catch a quick but unmistakable glimpse. There she is in 1870, living with her husband in Tippah County, Mississippi; she is a homemaker, and he is listed as a carpenter; they have a son, nine-years-old at the time, who goes by Dick and attends school; Joseph, their nephew, lives with them and is also in school. The family is doing well: they all can read and write; they do not own any real property but report $1,000 in personal assets, the equivalent of about $18,000 in present-day dollars. There she is again ten years later in 1880, in Benton County, Mississippi; by 1880, part of Tippah County had been reorganized and incorporated into Benton, and so it is likely the family had not moved. She is still a homemaker, but Richard is now a farmer; she and Richard have no other children; their son's full name is actually Richard, not Dick, no doubt after his father; Joseph still lives with them and is a teacher now.

And then, she disappears. A fire destroyed much of the records of the 1890 census; fragments remain, but none contain any trace of Sallie. Sallie was a common first name for Black women during slavery; Robinson, an equally common family name. From the 1900 census forward, a number of Sallie Robinsons appear--many of the same approximate age and, some, like Sallie, even born in Tennessee--but none quite match her. Richard Sr., Richard Jr., and Joseph--her husband, son, and nephew--also disappear; their names were similarly common. In the 1900 census, one Sallie Robinson comes close to matching her: a widow, born in Mississippi, running a boarding house in Greenville, Mississippi, who has one living child and six children who were not. The 1870 and 1880 censuses did not record the number of nonsurviving children, if any; it is possible that Richard Jr. was not Sallie's only child, but other distinguishing characteristics do not match, and it is unlikely that the boarding house widow is Sallie.

In the end--and for now--what I believe I know is that Sallie returned home to Michigan City, Mississippi, after her trip to Virginia. She makes the return journey on the Virginia-Tennessee Railroad from Lynchburg, Virginia, to Chattanooga, Tennessee. At Chattanooga, she transfers to the Memphis and Charleston. She sits in the ladies' first-class car, this time unmolested by the conductor. At Grand Junction, Tennessee, she takes the Mississippi Central Railroad bound for Michigan City where she began. Richard is there to meet her; she walks off the train, out of the station, heading home. The train travels on; the sound of wheels on rail-tracks vanishing, playing itself into silence.

Anne Fleming Research Professor; Professor of Law; and Director, Institute for Public Representation Civil Rights Law Clinic, Georgetown University Law Center. © 2021, Aderson Bellegarde François.

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