Radically reinterpreting fundamental human rights during Reconstruction.

How a 19th-Century Fight Over Theatergoing Transformed Our Understanding of Human Rights

How a 19th-Century Fight Over Theatergoing Transformed Our Understanding of Human Rights

A Slate Academy
Dec. 21 2017 1:47 PM

A Radical Right to Happiness

The 19th-century fight over theatergoing that revolutionized human rights.

Photo illustration by Slate. Image by Library of Congress.

Photo illustration by Slate. Image by Library of Congress.

This article supplements Reconstruction, a Slate Academy. To learn more and to enroll, visit Slate.com/Reconstruction.

Adapted from “Slave Emancipation and the Revolutionizing of Human Rights” by Amy Dru Stanley, originally published in The World the Civil War Made edited by Gregory P. Downs and Kate Masur. Published by the University of North Carolina Press.

Advertisement

Did the abolition of slavery create a right to go to the theater? The question arose in the long debate over the Civil Rights Act of 1875, a measure enacted by Congress to sweep away the vestiges of chattel bondage.

The 1875 act was called the Supplementary Civil Rights Act because it was meant to supplement the 1866 Civil Rights Act, which entitled all citizens of the United States to rights of contract, property, security of the person, and equality before the law. Grounded in the 13th and 14th Amendments, the supplement was intended as a culminating decree of slave emancipation. Newly, it defined pleasurable liberties as affirmative rights. The act stated: “All persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement.”1 Emancipation would bring a fundamental right to be an amusement seeker. This conception of freedom was both sensuous and steeped in the ways of the marketplace—and nowhere found in prior declarations of the rights of man.

Abolitionism had long held that slavery violated natural law. But in the supplement lay the unprecedented conception that being human—not chattel property—included the inherent right to pursue amusement, to experience rapture in public. A former slave named John Roy Lynch, who became a Mississippi congressman, put it simply. “This bill,” he told the United States House of Representatives, “has for its object the protection of human rights.”2

Across America, on both sides of the Mason-Dixon Line, the races were kept separate at the theater. Black people sat apart in the upper galleries or were excluded entirely, by custom and, in some southern cities, by law. As hybrid places—private associations open to the public—theaters were subject to municipal authority, but property owners possessed the liberty to exclude or restrict at will. The common law recognized no right of amusement seeking.3 After emancipation, statehouses controlled by Radical Republicans banned distinctions of race and color in public conveyances and resorts. But the legislation was evaded simply by tickets stating that proprietors had discretion to exclude anyone. Nor did it carry a positive grant of rights; it regulated places rather than entitling persons.4

Advertisement

Appeals for guarantees of fundamental rights flooded into the Congress from both ex-slave and freeborn black petitioners. The supplement afforded those guarantees, vindicating amusement seeking as a right belonging to all persons by virtue of their humanity, while asserting the power of Congress to tap the ideals of the Declaration of Independence in enforcing the 13th and 14th Amendments. The legislation was “truly efficacious for human rights,” affirmed Sen. Charles Sumner of Massachusetts, the bill’s author, announcing the new proposition that seeking amusement at a theater was a human right grounded in the pursuit of happiness and owed to ex-slaves as an outcome of abolition.5 After emancipation, there was no auction block, no violation of the household, no sanctions against knowledge, no exclusion from the courtroom or the ballot box. “But this is not enough,” claimed Sumner. “The new-made citizen is called to travel for business, for health, or for pleasure … He longs, perhaps, for respite and relaxation, at some place of amusement … The denial of any right is wrong.”6

The supplement did not only efface the color line, including black persons within the community of citizens; nor did it afford simply the dignity of social exchange that money could buy. An anti-slavery amendment to the rights declarations of the Age of Revolution, it renovated the Rights of Man, codifying new freedoms defined by the destruction of chattel bondage. It would protect the volition of freed persons, whether acting out of desire or necessity, whether pursuing happiness or fulfilling duties. As a freedman named London Kurdle wrote, “I pay my money at place of public entertainment; it is as good as if a white man had paid his.”7 The ex-slave would be entitled to cross the threshold from a pain economy to a pleasure economy, from a cotton field to a city theater, a passage marking a new conception of innate rights.

Invoking The Merchant of Venice, a freeborn black anti-slavery leader named George Downing, who had been an operator of the Underground Railroad, wrote of wrongs to be eradicated by the supplement: “Shylock’s words depict the feelings that animate with great intensity the outraged colored man … I am not demanding a pound of human flesh; but I am demanding exact and even-handed justice.”8

The relation of freedom to amusement seeking had not always been a premise of anti-slavery doctrine. Indeed, in 1796, a convention of American Abolition Societies had issued an address “To the Free Africans and other free People of color” warning against vicious dissipation: “Avoid frolicking, and amusements which lead to expense and idleness.” That doctrine persisted, particularly shaping indictments of the theater as inimical to productive labor and generative of evil passions. According to an 1836 report of the Massachusetts Anti-Slavery Society, the playhouse was a place of “sin and misery.”9

Advertisement

But the deepening of sectional crisis gave new meaning to the theater as a public place. Abolitionists appreciatively noted its political influence. “The theater, bowing to its audience, has preached immediate emancipation,” declared Wendell Phillips at an 1853 meeting of the Massachusetts Anti-Slavery Society. In a column entitled “Satan Transformed,” the Liberator affirmed that the evil of the playhouse had been “exorcized by the spirit of Anti-Slavery.”10

In the eyes of congressmen opposed to the supplement, the theater clause appeared as both tragedy and farce: tragedy in violating the constitutional limits set on the sovereignty of the nation-state, but farce in equating theatergoing with the rights of life, liberty, and property. Especially abhorrent to legislators from the old slave states was the prospect of persons who had been chattel property liberated from labor to

become theatergoers. Freed slaves should not be “associates in pleasure,” said a Georgia senator. As a former Confederate leader, congressman Hiram P. Bell of Georgia, objected, entitling former slaves to pursue amusement at a playhouse would “divert the negro from the pursuit of remunerative labor and honest industry.”11

Opposition came also from anti-slavery men, who argued that the theater guarantee lacked constitutional foundation and made a travesty of both abolition and natural rights principles. Denying the authority of Congress to reach public amusements staged on private property, a Maine senator argued that the anti-slavery amendments granted Congress no power “to open the doors of the theater, owned by a corporation … in order to perfect the freedom of the former slaves!”12

Advertisement

Defenders of states’ rights scoffed that playhouses were irrelevant to newfound entitlements of national citizenship: “A man’s life does not depend on whether he can go into a theater or not; his liberty does not depend on whether he can go into a theater or not; his property does not depend on whether he can go into a theater or not.”13 The very expansiveness of the protected rights and places evoked ridicule. Was the purpose to safeguard the pursuit of happiness as a human right at all forms of theater and all places of public amusement, no matter how base? Would the legislation govern a circus, a menagerie, or a Punch and Judy show? Such a project of emancipation was again and again said to demean Congress.

In the House of Representatives, abstract claims about the supplement became personal and palpable. For there black statesmen and former slaveholders argued as equals about the nature of human rights, turning the debate on emancipation into a form of revolutionary drama.

Consider the bitter exchange on the floor of the House between a black South Carolinian, Alonzo Ransier, and a white Virginian, John Harris:

Mr. Harris: What would the elder patriots of our country think if they could come on earth and find the American Congress legislating as to how persons … should sit in the theaters … There is not one gentleman upon this floor who can honestly say he really believes that the colored man is created his equal.
Mr. Ransier: I can.
Mr. Harris: It was born in the children of the South … that the colored man was inferior to the white.
Mr. Ransier: I deny that.
Mr. Harris: I do not allow you to interrupt me. Sit down. I am talking to white men.14
Advertisement

A black congressman from Alabama, James Rapier, explained the threshold that had been crossed, using an allusion to the theater. “Most of us have seen the play of Rip Van Winkle, who was said to have slept twenty years.” That was the Southerner’s situation, said Rapier. “He seems not to know that the ideas which he so ably advanced for so many years were by the war swept away, along with the system of slavery … And worse to him than all, he finds the negro here, not only a listener but a participant in debate.”15

A decade after the end of the Civil War, Congress enacted the supplement. As the debate ended, some of the last words belonged to congressman Rapier. “This question resolves itself into this,” he said, “either I am a man or I am not a man.”16

* * *

The final act of the supplement is well-known. In 1883, in the Civil Rights Cases, the Supreme Court struck the legislation down as unconstitutional, without foundation in either the 13th Amendment or the 14th Amendment. Two of the cases before the court concerned the violation of the right to be a theatergoer. “Where does any slavery or servitude, or badge of either, arise from such an act of denial?” asked the court. “What has it to do with the question of slavery?”17

171220_Restoration_BookCivilWar

A century after the abolition of slavery, the ethos of the supplement was resurrected. Under Title II of the Civil Rights Act of 1964, Congress entitled all persons, irrespective of race, color, religion, or national origin, to the full and equal enjoyment of the theater as well as other places of public amusement—motion-picture houses, concert halls, stadiums, and arenas. Notably, the 1964 act was grounded not in the anti-slavery 13th Amendment but in the Commerce Clause, and, should state action be involved, in the 14th Amendment.18 Paradoxically, as America celebrated the centennial of slave emancipation, human rights newly came to amusement seekers by virtue of the untrammeled flow of commerce.

For the most part, the Supplementary Civil Rights Act of 1875 is remembered as a landmark defeat in the battle against Jim Crow—as evidence of the unfinished promise of Reconstruction and a lesson in the limits of the 13th Amendment and in the constraints of the state action requirement of the 14th Amendment.19

But the Supplementary Civil Rights Act of 1875 bears reconsidering as a turning point in both the death of slavery and the emergence of human rights. For a moment, until it was nullified, the act vindicated amusement seeking as a condition of free personhood, transforming the human rights tradition inherited from the Age of Revolution that associated liberty with proprietorship. The rights bearer did not figure as a possessive individual. From the revolution of slave emancipation emerged the idea of a sensuous, affective, and sociable entitlement, protected by the national state, for the purchase price of a ticket.20

Here was something new in the history of human rights: a public right to play, born of the transition from property to person—a right to nonacquisitive happiness as the negation of chattel slavery. In the next century, the Universal Declaration of Human Rights would guarantee the freedom to partake of cultural life, including the arts. That cosmopolitan guarantee—the conversion of the vexed pleasure of theatergoing into a human right—arose as an anti-slavery invention, from the overthrow of America’s peculiar institution.21

Adapted from “Slave Emancipation and the Revolutionizing of Human Rights” by Amy Dru Stanley, originally published in The World the Civil War Made, edited by Gregory P. Downs and Kate Masur. Copyright © 2015 by the University of North Carolina Press. Used by permission of the publisher. www.uncpress.unc.edu.

1. “An Act to Protect All Citizens in Their Civil and Legal Rights,” U.S. Statutes at Large, vol. 18, part 3, chap. 114 (Washington: Government Printing Office, 1875), 335–37. The 1875 act also entitled all citizens to serve on juries in all courts. It differed from early post-bellum state legislation that banned discrimination but created no positive right to seek amusement in public.

2. Congressional Record, 43rd Cong., 2nd sess., 1875, 947.

3. See Henry J. Leovy, The Laws and General Ordinances of the City of New Orleans (New Orleans: E.C. Wharton, 1857), 17; Arthur Hornblow, A History of Theatre in America From Its Beginnings to the Present Time, vol. 1 (Philadelphia: J. B. Lippincott, 1919), 343–44; McCrea v. Marsh, 78 Mass. 211 (1858); Burton v. Scherpf, 83 Mass. 133 (1861); “Places of Amusement—Rights of Ticket-Holders,” Albany Law Journal, April 12, 1873, 225–26; Rosemarie K. Bank, Theater Culture in America, 1825–1860 (Cambridge: Cambridge University Press, 1997), 50, 96–98; Leonard Curry, The Free Black in Urban America: The Shadow of the Dream, 1800–1850 (Chicago: University of Chicago Press, 1981); Shane White, Stories of Freedom in Black New York (Cambridge: Harvard University Press, 2002), chap. 2; Ira Berlin, Slaves Without Masters: The Free Negro in the Antebellum South (New York: Pantheon, 1974); August Meier and Elliot Rudwick, From Plantation to Ghetto: An Interpretive History of American Negroes (New York: Hill and Wang, 1966), 95; Max W. Turner and Frank R. Kennedy, “Exclusion and Segregation of Theater Patrons,” Iowa Law Review 32, no. 4, (1947): 625–58.

4. In declaring an affirmative entitlement, the supplement differed from state legislation that barred discrimination; see, for example, “An Act Forbidding Unjust Discrimination on Account of Color or Race,” Acts and Resolves Passed by the General Court of Massachusetts, in the Year 1865 (Boston: Wright and Potter, 1865), chap., 277, 650; “An Act in Relation to Public Places of Amusement,” Acts and Resolves Passed by the General Court of Massachusetts, in the Year 1866 (Boston: Wright and Potter, 1866), chap., 252, 242; “Civil Rights,” The Revised Statute Laws of the State of Louisiana (New Orleans: Republican Office, 1870), sec. 458, 93; “An Act to Enforce the Provisions of the Civil Rights Bill of the United States Congress, and to Secure to the People the Benefits of a Republican Government in this State,” Acts and Joint Resolutions of the General Assembly of the State of South Carolina, Part I (Columbia: John W. Denny, 1870), no. 279, 387; “An Act to Provide for the Protection of Citizens in Their Civil and Political Rights,” New York Statutes at Large, chapter 186, vol. 9 (1875), 583–84 (passed April 9, 1873). See also Rebecca J. Scott, “Public Rights and Private Commerce: A Nineteenth-Century Atlantic Creole Itinerary,” Current Anthropology 48, no. 2 (2007); Joseph William Singer, “No Right to Exclude: Public Accommodations and Private Property,” Northwestern University Law Review 90, no. 4 (1996); Kate Masur, An Example for All the Land: Emancipation and the Struggle Over Equality in Washington, D.C. (Chapel Hill: University of North Carolina Press, 2010).

5. Congressional Globe, 42nd Cong., 2nd sess., 1872, 383; Charles Sumner, The Works of Charles Sumner, vol. 14 (Boston: Lee and Shepard, 1870–83), 385.

6. Globe, 42nd Cong., 2nd sess., 1872, 381.

7. Letter of London Kurdle to Charles Sumner, Feb. 3, 1872, Papers of Charles Sumner. On the history of human rights, see Jeffrey Wasserstrom, Lynn Hunt, and Marilyn B. Young, eds., Human Rights and Revolutions (Lanham, Md.: Rowman and Littlefield, 2000); Laurent Dubois, Avengers of the New World: The Story of the Haitian Revolution (Cambridge, Mass.: Belknap Press, 2004); Lynn Hunt, Inventing Human Rights: A History (New York: W.W. Norton, 2007); ); Samuel Moyn, The Last Utopia: Human Rights in History (Cambridge: Harvard University Press, 2010); Robin Blackburn, The American Crucible: Slavery, Emancipation, and Human Rights (New York: Verso, 2011); Jenny S. Martinez, The Slave Trade and the Origins of International Human Rights Law (New York: Oxford University Press, 2012).

8. George T. Downing, “Christianity, Law, and Civil Rights,” Independent, Feb. 26, 1874.

9. The American Convention for Promoting the Abolition of Slavery, Minutes of the Proceedings of the Third Convention of Delegates From the Abolition Societies Established in Different Parts of the United States Assembled at Philadelphia, January 1, 1796 (Philadelphia: Zachariah Poulson, Jr., 1796 ), 14; Fourth Annual Report of the Board of Managers of the Massachusetts Anti-Slavery Society (Boston: Isaac Knapp, 1836), 31; Proceedings of the Fourth New-England Anti-Slavery Convention, Held in Boston, May 30, 31, and June 1 and 2, 1837 (Boston: Isaac Knapp, 1837), 46–48; Address to the Free Colored People of the United States (Philadelphia: Matthew and Gunn, 1838), 8.

10. Speech of Wendell Phillips, at the Melodeon, Thursday Evening, Jan. 27, 1853 (Boston: Printed for the American Anti-Slavery, 1853), 8, 17; “Satan Transformed,” Liberator, Nov. 4, 1853.

11. Record, 43rd Cong., 1st sess., 1874, appendix, 237; Globe, 42nd Cong., 2nd sess., 1872, appendix, 217; Record, 43rd Cong., 1st sess., 1874, appendix, 3.

12. Globe, 42nd Cong., 2nd sess., 1872, appendix, 4.

13. Globe, 42nd Cong., 2nd sess., 1872, 430, 496; Record, 43rd Cong., 2nd sess., 1875, 1861, 1868–69.

14. Record, 43rd Cong.,1st sess., 1874, 376-377.

15. Record, 43rd Cong., 1st sess., 1874, 4783–84, 409.

16. Record, 43rd Cong., 2nd sess., 1875, 1001.

17. Civil Rights Cases, 21.

18. Civil Rights Act of 1964, Pub. L. No. 88–352, 78 Stat. 241, Title II, Sec. 201(a)(3). The United States Supreme Court upheld the 1964 act only under the Commerce Clause, without addressing the 14th Amendment grounds; see Heart of Atlanta Motel Inc. v United States, 379 U.S. 241 (1964).

19. On the supplement and the limits of Reconstruction, see C. Vann Woodward, The Burden of Southern History (Baton Rouge: Louisiana State University Press, 1993), 78–87; William Gillette, Retreat From Reconstruction, 1869-1879 (Baton Rouge: Louisiana State University Press, 1982), 259-79; Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877 (New York: Harper and Row, 1988), 553–56; John Hope Franklin, “The Enforcement of the Civil Rights Act of 1875,” Prologue 6 (1974). My point is that expanding freedom’s scope to include amusement as a human right constituted a revolutionary redefinition of rights. On equal citizenship and public space, see Rebecca J. Scott, “Public Rights, Social Equality, and the Conceptual Roots of the Plessy Challenge,” Michigan Law Review 106, no. 6 (2008): 777–804; Rebecca J. Scott, Degrees of Freedom: Louisiana and Cuba After Slavery (Cambridge: Harvard University Press, 2005), 43–45; Masur, An Example.

20. On aspirations of slaves and freedpeople to assert autonomy through pleasure and amusement, see Saidiya Hartman, Scenes of Subjection: Terror, Slavery, and Self-Making in Nineteenth-Century America (New York: Oxford University Press, 1997); Stephanie M. H. Camp, “The Pleasure of Resistance: Enslaved Women and Body Politics in the Plantation South, 1830–1861,” Journal of Southern History 68, no. 3 (2002): 533–72; Tera W. Hunter, To ’Joy My Freedom: Southern Black Women’s Lives and Labors After the Civil War (Cambridge: Harvard University Press, 1997); Daphne A. Brooks, Bodies in Dissent: Spectacular Performances of Race and Freedom, 1850–1910 (Durham: Duke University Press, 2006); Bernard Camier and Laurent Dubois, “Voltaire, Zaïre, Dessalines: Le Théâtre des Lumières dans l’Atlantique franҫais,” Revue d’histoire moderne et contemporaine 54, no.4 (2007).

21. The Universal Declaration of Human Rights states, in Article 27, “Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts,” <http://www.un.org/en/documents/udhr/>.