Wisconsin
Lawyer
Vol. 81, No. 12, December
2008
Abraham Lincoln’s Legacy to Wisconsin Law, Part
1:
A New Birth of Freedom: Civil Rights Law in Wisconsin
February 12, 2009, is the 200th
anniversary
of Abraham Lincoln’s birth. Lincoln arguably
did more than any other individual to shape America. He influenced and
was influenced by powerful legal and political currents that continue
to play a vital role in shaping American law, including the law of
Wisconsin. This is the first of
three articles that will examine the legal
connections between Lincoln and Wisconsin.
by Joseph A.
Ranney
braham Lincoln is popularly thought
of as a champion of racial equality far ahead of his time. It does no
dishonor to Lincoln to point out that this is an exaggeration. Lincoln
grew up in an era when virtually all white Americans, even opponents of
slavery, considered black men and women inherently inferior to whites.
Traces of this sentiment made their way into Lincoln’s political
thought. In his 1858 debates with U.S. Senator Stephen Douglas,
Lincoln stated: “I am not, nor ever have been in favor of bringing
about in any way the social and political equality of the white and
black races … [T]here is a physical difference between the white
and black races which I believe will forever forbid the two races living
together on terms of social and political equality.”1 Lincoln viewed emancipation primarily as a
war measure and rejected the call of Radical Republicans for rapid
amendment of federal and state laws to give blacks full civil and
political equality.2
But Lincoln in his heart never accepted the premise of black
inferiority. He consistently expressed his racial views in tentative
terms and altered those views when the crucible of war and emancipation
showed that alteration was warranted. Lincoln worked hard to bridge the
divide between himself and the Radicals. They were “the unhandiest
devils in the world to deal with,” said Lincoln, “but after
all their faces are set Zionwards.”3
In the last major speech of his life, Lincoln left the door open for
black suffrage at a time when Wisconsin and most other northern states
had rejected it.4
One of Lincoln’s most brilliant insights was that great
social movements, once launched, often spill beyond their original
borders: that the Civil War would trigger an equal-rights revolution
that would not be limited to black Americans. In the Gettysburg Address
he described this as “a new birth of freedom” advancing the
ideal of “government of the people, by the people, for the
people” – all of the people.5
Civil Rights in Wisconsin During the Emancipation Era
How have these cross-currents affected Wisconsin law? At first,
Wisconsin, like the Radical Republicans, seemed to be on the cutting
edge of civil rights law. Nearly all Wisconsinites vehemently opposed
slavery during the years before the Civil War, and in 1854 Wisconsin
became the first and only state to openly defy the federal Fugitive
Slave Act of 1850.
The 1850 Act, which Congress had passed in an effort to avoid
Southern secession, was hugely unpopular in the northern states because
it required local law enforcement officials to assist in the capture and
return of fugitive slaves. The U.S. Supreme Court had rejected
constitutional challenges to a predecessor fugitive law, and the
Massachusetts and Ohio supreme courts reluctantly held that despite
doubts that the high Court was correct they must defer to its decisions
and enforce the 1850 Act.6 But when Sherman
Booth, a Waukesha abolitionist, was prosecuted under the 1850 Act for
his role in helping Joshua Glover, a fugitive slave, break out of a
Milwaukee jail and escape to freedom in Canada, Booth’s lawyer,
Byron Paine, tried a new constitutional attack on the 1850 Act. Paine
invoked the doctrine of states’ rights, arguing that Wisconsin was
not bound by the U.S. Supreme Court’s decisions and could make an
independent determination of the Act’s constitutionality. Justice
Abram Smith of the Wisconsin Supreme Court accepted Paine’s
argument and ordered federal officials to release Booth.7
Smith’s opinion was an unusual mix of close legal reasoning
and vigorous antislavery rhetoric. Smith denounced the 1850 Act as
“a wicked and cruel enactment” and warned that until the
federal government “return[ed] to the exercise of the just powers
conferred by the Constitution … agitation, acrimony and hostility
will mark our progress, even if we escape a more dread calamity, which I
will not even mention.”8
Smith’s colleagues later affirmed his opinion, but in 1859 the
U.S. Supreme Court, speaking through Chief Justice Roger Taney, reversed
the Wisconsin court.9
Wisconsinites were in no mood to accede to Taney, the author of
the infamous Dred Scott decision. The Wisconsin Legislature
passed a resolution stating that “a positive defiance … is
the right remedy,” and one newspaper, alluding to Taney’s
statement in Dred Scott that black people “had no rights
which the white man was bound to respect,” argued that
Taney’s new decision meant “the free states have no rights
which kidnappers are bound to respect!”10
States’ rights sentiment peaked in 1859 when the Wisconsin
Supreme Court refused to accept and file Taney’s decision.
Recently appointed Chief Justice Luther Dixon was the lone dissenter.
Dixon explained that although he personally agreed the 1850 Act was
unconstitutional, Wisconsin must defer to the federal high court and
look to the ballot box rather than the courts for an end to slavery.
Dixon pointed out that Booth and Justice Smith would “place it in
the power of any one state, beyond all peaceful remedy, to arrest the
execution of the laws of the entire union, and to break down and destroy
at pleasure every barrier and right given by the constitution.”
Wisconsin Republicans responded by denying Dixon renomination to the
court in 1860. Dixon then ran as an independent and narrowly won. His
victory, coupled with the Republicans’ national victory in the
fall of that year, caused states’ rights sentiment to recede.11
Joseph A. Ranney, Yale 1978, is a trial lawyer
with DeWitt Ross & Stevens S.C., Madison and Brookfield. He is the
author of Trusting Nothing to Providence: A History of
Wisconsin’s Legal System (1999) and In the Wake of Slavery:
Civil War, Civil Rights and the Reconstruction of Southern Law
(2006). He also is an adjunct professor at Marquette University Law
School and a member of the Wisconsin Abraham Lincoln Bicentennial
Commission.
The Booth cases were the last time Wisconsin took a civil
rights leadership role on the national stage. As Lincoln prophesied, the
end of the Civil War brought a new birth of freedom not just to the
emancipated slaves of the South but to the North as well. All Midwestern
states except Wisconsin had established “black codes” before
the war, severely restricting black immigration and civil rights; those
codes were promptly repealed after the war ended.12 Before the war, black men were allowed to
vote only in a handful of New England states; after 1865, some
Midwestern states followed suit, and in 1870 the 15th amendment to the
U.S. Constitution nationalized suffrage for black men.
Wisconsin adopted male black suffrage in a highly unusual manner.
In 1849 a suffrage referendum was held as required by the state’s
new constitution and a majority of the people voting on black suffrage
approved it, but Wisconsinites universally believed that suffrage had
failed because the constitution required approval by a majority of all
individuals voting at the election, not just those voting on the
suffrage question. In 1866 Ezekiel Gillespie, a leader of
Milwaukee’s black community – again represented by Byron
Paine – persuaded the supreme court that a majority of those
voting on the suffrage issue sufficed. The court ruled that legally,
black Wisconsin men had been entitled to vote since 1849.13
Wisconsin and the Struggle to
Implement Civil Rights
During the century after the Civil War, civil rights progress was
painfully slow in Wisconsin as reformers gradually shifted their
attention from de jure to de facto equality. As one Wisconsin historian
has stated, “Benevolent paternalism and street-nodding familiarity
that … once seemed to characterize relations between blacks and
whites … [gave] way to a cold and formalized pattern of race
relations. Negroes were amusing – in their place – was the
message.”14 Wisconsin never enacted
discriminatory laws – for example, it consistently refused to
enact antimiscegenation laws, which were universal in the post-Civil War
South and common even in the North – but neither did it take an
affirmative stand against discrimination. After the U.S. Supreme Court
struck down in 1883 a federal law guaranteeing equal access to places of
public accommodation, many northern states quickly passed laws to take
the place of the federal law. But Wisconsin waited until 1895 to do so
and it enacted an employment antidiscrimination law only in 1945, well
after the federal government had enacted such regulations to meet the
pressing need for defense workers of any race in World War II. The
legislature did not give black Wisconsinites a private right of action
under the employment law until 1957.15
During recent decades advances in civil rights law have taken
place largely at the federal level. Those advances have triggered a
national debate over the extent to which racial disparity is linked to
poverty and the extent to which law should be used to remedy past racial
and economic discrimination. Wisconsin’s contribution to this
debate has come mainly out of the struggle to reduce residential and
school segregation in Milwaukee.
Wisconsin has had a long tradition of neighborhood schools and
local control over education.16 When
Milwaukee first acquired a numerically significant (and very segregated)
black population in the 1940s and 1950s, the local-schools tradition
resulted in a severely segregated school system. In 1964, state
representative Lloyd Barbee filed a desegregation suit against the
Milwaukee Public Schools (MPS) to eliminate school segregation. Barbee,
reflecting prevalent attitudes of civil rights supporters in the
mid-20th century, argued that black Wisconsinites could enjoy their
constitutional right to equal protection only if a racial balance was
struck in the schools. Equal opportunity and facilities were not enough,
said Barbee, and MPS must be held responsible even though it had not
caused the residential segregation that resulted in school segregation.
Federal judge John Reynolds agreed. “The Constitution,” said
Reynolds, “does not guarantee one a quality education; it
guarantees one an equal education, and the law in this country is that a
segregated education that is mandated by school authorities is
inherently unequal.”17
But Barbee’s and Reynolds’s hopes for
thorough-going integration were not realized. Despite efforts by local
officials and the legislature to enact desegregation measures with
teeth, during the 1980s many Milwaukee whites migrated to the suburbs,
and MPS became a heavily minority school district burdened by an
increasingly shaky tax base. Sentiment for integration dropped, and
Americans both black and white increasingly came to view liberty and
justice in terms of the right to individual self-fulfillment rather than
promotion of a common good.18 These forces
gave rise to the school voucher movement.
In 1990, Wisconsin became the first state in the nation to enact
a voucher law. The law provided that up to 1,000 MPS students could
attend nonsectarian private schools of their choice, and money from the
MPS budget would be set aside to pay their expenses up to $2,500 per
year.19 Opponents challenged the law but in
Davis v. Grover (1992), a deeply divided Wisconsin Supreme Court
upheld it.20
Justice William Callow, speaking for the majority, expressed a
view of equal protection almost diametrically opposite to Judge
Reynolds’s view. The Wisconsin Constitution, said Callow,
“does not require the legislature to ensure that all the children
in Wisconsin receive a free uniform basic education” but only
requires the legislature “to provide the opportunity for
all children in Wisconsin to receive a free uniform basic
education.”21 Justice Shirley
Abrahamson, dissenting, charged that the voucher law “subvert[s]
the unifying, democratizing purpose of public education by using public
funds to substitute private education for public education without the
concomitant controls exerted over public education.”22 The tide continued against traditionalists:
In 1995 the legislature expanded the voucher program dramatically and
allowed sectarian schools to participate for the first time, and the
supreme court also upheld this law.23 The
debate over the proper balance between public and private schools,
between communal and individualized education, continues.
The New Birth of Freedom for
Wisconsin Women
The “new birth of freedom” Lincoln prophesied extended to
women as well as black Americans. The years following the Civil War were
an important period in the history of women’s rights, both
nationally and in Wisconsin. Lincoln paid little attention to
women’s rights: His only public commentary was a hint at the
beginning of his political career that he might favor suffrage for
women, and he never followed up on the hint.24 But Congressional debate over extension of
basic civil rights and of suffrage to black men through the 14th and
15th amendments prompted Susan B. Anthony and other leaders of the
national women’s movement to demand that those rights be extended
to women as well. Some legislators agreed, but most did not. In 1869
Olympia Brown and her colleagues founded the Wisconsin Women’s
Suffrage Association (WWSA). They would meet with mixed success over the
next 50 years.
Before the Civil War, in 1850, Wisconsin struck a modest blow for
women’s rights by enacting one of the nation’s first married
women’s property acts, giving married women for the first time the
right to control property they brought to the marriage and sharply
modifying the common-law “marital unity” doctrine that had
given husbands virtually complete control of their wives’ assets
and wages.25 But the supreme court
consistently interpreted the 1850 law in a narrow manner, refusing to
construe it to give women control of their wages and business profits.
In 1872, shortly after the WWSA was founded, the legislature passed an
amended property act that unequivocally gave married women control over
their wages and business profits.26 In 1879
Wisconsin became one of the earliest states to admit women to the
practice of law – but only after Chief Justice Edward Ryan had
rejected an admission application from Lavinia Goodell of Janesville.
Ryan declaimed that “callings … inconsistent with [the]
radical and sacred duties of their sex … for the bearing and
nurture of the children of our race and for the custody of the homes of
the world … are departures from the order of nature and …
treason against it,” but the legislature and Ryan’s
colleagues on the court overrode him.27
In 1884 the WWSA persuaded the legislature to enact a limited
suffrage law allowing women to vote in school elections (that is,
elections for superintendent of public instruction and local educational
offices). But in 1888 the supreme court again interpreted the law in a
pinched manner, ruling that women could vote only if special ballots
limited to such offices were provided. The legislature did not provide
for such ballots until the dawn of the Progressive era in 1901.28 The WWSA and its allies persuaded the
legislature to allow a referendum on full women’s suffrage in
1912, but the measure went down to defeat. Wisconsin women did not gain
the vote until the 19th Amendment to the U.S. Constitution, providing
for national suffrage, was ratified in 1919.29 Wisconsin was not alone in its reluctance
to embrace full women’s rights during the decades following the
Civil War, but it certainly was not a leader in the movement for such
rights.
Conclusion
There is a distinctly Lincolnesque element in Wisconsin’s
approach to new births of freedom for its black and women citizens.
Lincoln was seldom radical and always pragmatic and cautious about
reform, but he viewed expansion of rights as a never-ending process and
always kept an open mind as to new rights. With the notable exception of
the Booth controversy, Wisconsinites have seldom been in the
forefront of civil rights reform; but they have never closed their minds
to reform either, and as a result, Wisconsin, like the nation, has
gradually come to match and even exceed the fondest hopes of
Lincoln’s radical allies. Lincoln might well view the controversy
over school choice as merely one chapter in a long evolutionary process,
and it is certain that he would welcome the debate as necessary to that
process.
Endnotes
Wisconsin Lawyer