Reflections on Albion Tourgee's 1896 View of the Supreme Court a Consistent Enemy of Personal Liberty and Equal Right

Abstract

In an 1896 Memorial Day lecture shortly after his loss in Plessy v. Ferguson, Albion Tourgee argued that the Supreme Court had “always been the consistent enemy of personal liberty and equal right.” Was Tourgee merely ventilating after a frustrating defeat, or did his thesis accurately represent the Supreme Court’s performance over time? In this article I will briefly introduce Tourgee, explain how he might have come to his bleak view of the Court, and finally consider his views of Reconstruction and of its failure — and the failure (in his time) of his constitutional vision.The Supreme Court was not a consistent enemy of personal liberty and equal right in Tourgee’s lifetime. It was just usually an enemy of liberty and equality. (Naturally, Tourgee’s Plessy brief cited some favorable precedents.) A review of relevant Supreme Court cases will show this qualified version of Tourgee’s thesis to be historically accurate. While it is true that Reconstruction-era Court decisions did not foreclose protection of blacks against private violence motivated purely by race, Cruikshank and subsequent cases required a racial motive for such prosecutions. As a result, white and black Republicans were effectively abandoned to politically motivated Klan violence at a time when the national government grew weary of protecting Reconstruction state governments through military force. Were Tourgee to return, he would be greatly impressed by what progress has been made since his death in 1905, but he would also be distressed by modern legal and economic threats to the more egalitarian democracy he envisioned.Note: This article grew out of an invitation to participate in a conference on the life of Albion Tourgee held in Raleigh, North Carolina. The conference was co-sponsored by the UNC Center for the Study of the American South. This and other papers from the conference will be published in the Elon Law Review.