By Shelley A. Sackett
The Dormant Commerce Clause doctrine is aptly named. Known to induce temporary dormancy among even the most avid first year law students, its post-bar review practical value outside academia is, essentially, nil.
And yet, Jack Beermann, a Boston University School of Law professor of Constitutional Law, Civil Rights and Administrative Law, has just published a book, “The Journey to Separate But Equal,” based on a little-known but pivotal Supreme Court case that hung its hat on this arcane and crucial constitutional construct that prevents both discrimination against, and excessive burdens on, interstate commerce
Moreover, he turned out a narrative that is as accessible to lay readers as to legal scholars.
It all started when Beermann, who grew up in Skokie, Illinois and lives in Swampscott with his wife, Debbie Korman, read a law review article that cited Hall v. Decuir, an 1877 Supreme Court decision that struck down a Louisiana state antidiscrimination statute and, for the first time after the Civil War, actually approved race-based segregation.
He had never heard of the case.
His curiosity piqued, he began a ten-year journey of trips to Louisiana, research, writing and re-writing, fueled by a drive to document the Court’s first step towards validating segregation in US society. The end result, “The Journey to Separate But Equal,” while exhaustively researched and painstakingly scholarly, is also immensely readable, owing to the compelling human story at its center.
Josephine Decuir, a mixed-race, privileged and wealthy woman whose free family owned slaves that worked their Louisiana plantations, had, as was her custom, booked a first-class ticket in the ladies’ cabin aboard the interstate riverboat, The Governor Allen. Instead of honoring her prepaid ticket, the boat’s stringent segregation policy relegated her to the “colored-only” section of the riverboat, where all non-White passengers, regardless of sex or social status, slept in common areas.
Madame Decuir sued the riverboat owner, citing Louisiana’s nondiscrimination statute, a state law passed during Reconstruction. State courts ruled in her favor, and the owner appealed. The case wound its way to the Supreme Court as Hall v. Decuir. That court ruled against Madame Decuir, citing the US Constitution’s Dormant Commerce Clause doctrine, which is used to prohibit state legislation that discriminates against interstate or international commerce.
Essentially, the Court accepted the owner’s argument that, despite violating state law, segregation was both customary on riverboats and necessary to keep Whites as customers; i.e., integration had the potential to negatively impact his business.
Beermann, who already knew the Supreme Court had prevented the federal government from enforcing Congress’s civil rights program for Reconstruction, wasn’t aware it had also prevented states from enforcing liberal civil rights laws. “I would have written the book regardless of what was happening in the world, but it feels like this subject gets more timely every day,” he said by email.
There are many parallels between the Courts of 1877 and today, Beermann said. “One thing courts are very good at is justifying terrible decisions with bland, benign language. The Justices in 1877 were good people, well-trained in the law; and yet, without flinching, they doomed millions of their fellow citizens to terrible lives of oppression and injustice.”
During his research, Beermann experienced two “aha” moments. One was when he realized the scope and implications of the story he had uncovered. Decuir, as a “person of color”, was used to the treatment and privilege her wealth, status and lighter skin afforded her. Suddenly, she felt the sting of prejudice and exclusion almost as strongly as the darker-skinned people at the bottom of the social ladder.
The other was when he recognized, after repeated attempts, that he couldn’t address the complicated issue that Madame Decuir and her family were themselves slaveowners before the Civil War. “I decided to focus on her dignity harms and leave that issue to the reader, or perhaps to another project,” he said.
As a teenager, the protests against the Vietnam War and Martin Luther King’s activism awakened Beermann’s interest in civil rights. He remembers his father as “a bit involved in politics. I knew we were a very liberally oriented family, even when I was a small child.” He has taught in Israel numerous times and, “although I don’t agree with all of its policies,” he is a strong supporter. His family (including three sons and a daughter, when they are home) attends Chabad House and Temple Sinai in Marblehead. “Our Jewish identity is very important to us,” he said.
Beermann hopes his readers will gain a better sense of the racial politics of the Reconstruction era, opening their eyes to how laws and courts contributed — and continue to contribute — to racial segregation. In the end, though, he admits he doesn’t know the moral of the Decuir legacy.
“It’s too simplistic to say that race discrimination is wrong; my sense, maybe what I was trying to communicate, is that race discrimination, and white supremacy in particular, are woven into the fabric of our country and have resisted unraveling at every turn,” he said.
Join Beermann at a free Zoom author event on May 27 from 7-8 pm. To register, visit jccns.org.