A Lost World: Sallie Robinson, the Civil Rights Cases , and Missing Narratives of Slavery in the Supreme Court’s Reconstruction Jurisprudence

A Lost World: Sallie Robinson, the Civil Rights

Cases, and Missing Narratives of Slavery in the

Supreme Court’s Reconstruction Jurisprudence

ADERSON BELLEGARDE FRANC¸OIS*

“It is the sound of vanishing—the music as it plays itself to silence, the

train as it travels away, a voice left on magnetic tape.”

1

The Supreme Court tells stories about who and what we are—the sort of

“knowledge about [the] past that is shared, mutually acknowledged and re-

inforced by a collectivity.”

2

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 doc-

trine. In time, and with each iteration—like sandy water f‌lowing over sedi-

mentary 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 meta-

phors, 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,”

3

—a 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 col-

lective 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 peo-

ple in America has been to erase slavery from the constitutional stories

* Anne Fleming Research Professor; Professor of Law; and Director, Institute for Public

Representation Civil Rights Law Clinic, Georgetown University Law Center. © 2021, Aderson

Bellegarde Franc¸ois. I am thankful to the librarians at Georgetown University Law Center, particularly

Barbara Monroe, who provided much of the initial research before she retired; Andrea Muto, who had

the patience of a saint no matter how unreasonable my random requests; and Leah Prescott, who

patiently tutored me on genealogy research. And, as always, I’m grateful to Parisa, Kian, and Zadie for

making time for me to write.

1. JOHN BERGER & ANNE MICHAELS, RAILTRACKS 5 (2012).

2. See Joachim J. Savelsberg & Ryan D. King, Law and Collective Memory, 3 ANN. REV. L. & SOC.

SCI. 189, 191 (2007) (def‌ining collective memory).

3. See ORLANDO PATTERSON, SLAVERY AND SOCIAL DEATH: A COMPARATIVE STUDY 5 (1982).

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the Court tells about American democracy. The Court has managed this

feat so successfully that the main role slavery plays in the collective con-

stitutional imagination today is as remembrance of how its abolition

aff‌irmed the genius of the Framers’ vision and redeemed the righteous-

ness 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 pro-

tect Black people from white violence, and that Black people’s invocation

of the Fourteenth Amendment’s equality principle was akin to their want-

ing 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 obscu-

rity, 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 peo-

ple like Sallie existed and mattered.

TABLE OF CONTENTS

I. SALLIE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1017

II. A “GOOD-LOOKING MULATTO WOMAN” . . . . . . . . . . . . . . . . . . . . . 1025

III. A FORTUNE TO LAST GENERATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032

IV. THE “QUINTESSENCE OF ABOMINATION” . . . . . . . . . . . . . . . . . . . . . 1038

V. “NO LAW CAN SAY ALL MEN SHALL BE EQUAL SOCIALLY”. . . . . . . 1045

VI. SINGING WITH “WONDERFUL PATHOS” THE “QUAINT, WEIRD,

TOUCHING SONGS OF THE SLAVE CABIN” . . . . . . . . . . . . . . . . . . . . . 1048

VII. “WHY DID YOU CALL [HER] GIRL?” . . . . . . . . . . . . . . . . . . . . . . . 1052

VIII. “A MERE CITIZEN” AND NOT “THE SPECIAL FAVORITE OF THE LAWS” 1056

IX. THE RIGHTS OF FREEDOM AND AMERICAN CITIZENSHIP . . . . . . . . . . . . . 1059

1016 THE GEORGETOWN LAW JOURNAL [Vol. 109:1015

X. LOCOMOTION BECAME RUNNING AWAY AND ENTERTAINMENT BECAME

HARBORING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1064

XI. THREE MCCLUNG BROTHERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1071

XII. SALLIE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1074

I. SALLIE

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.

4

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, thea-

ters, and other places of public amusement on account of their race, color, or pre-

vious condition of servitude.

5

The Act also created a private right of action for

such a violation.

6

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.

7

Her

case is also one of the six cases the United States Supreme Court originally joined

under the rubric the Civil Rights Cases

8

to decide that Congress lacked power

4. The details of what is known about Sallie Robinson’s life and suit are discussed extensively later

in the Article. See infra Parts III, VII, XII.

5. Civil Rights Act of 1875, ch. 114, §§ 1–2, 18 Stat. 335, 335–36.

6. Id. § 3.

7. See Transcript of Record, Robinson v. Memphis & Charleston R.R. Co. (The Civil Rights Cases),

109 U.S. 3 (1883) (No. 28).

8. 109 U.S. at 3. The f‌inal opinion reports f‌ive cases instead of six, as do most books and articles on

the topic: United States v. Stanley, United States v. Ryan, United States v. Nichols, United States v.

Singleton, and Robinson v. Memphis & Charleston Railroad Company. Id. The Court initially accepted a

sixth case, United States v. Hamilton, for review, docketing it as one of the cases to be joined with Ryan,

Stanley, and Nichols. Brief for the United States at 1–2, The Civil Rights Cases, 109 U.S. 3 (Nos. 1, 2, 3

& 204). Indeed, during the October 1882 Term, the United States included Hamilton as part of the

caption of its brief and discussed the facts of the case in body of the brief. See id. On the same day that

the Court decided the f‌ive cases that make up the Civil Rights Cases, however, it dismissed Hamilton as

outside of its jurisdiction. See United States v. Hamilton, 109 U.S. 63, 63 (1883). These six cases were

certainly not the only ones to seek review of the Civil Rights Act of 1875.

2021] A LOST WORLD 1017