The Dormant Commerce Clause doctrine is aptly named. Known to induce temporary dormancy among even the most avid first-year law students, its practical value outside academia is seemingly nil.
But to Jack Beermann, a professor of Constitutional Law, Civil Rights and Administrative Law at the Boston University School of Law, the ramifications of the doctrine are anything but trivial. In his new book, “The Journey to Separate But Equal: Madame Decuir’s Quest for Racial Justice in the Reconstruction Era,” Beermann deftly unpacks a little-known but pivotal Supreme Court case that hung its hat on this arcane, crucial constitutional construct, which prevents both discrimination against, and excessive burdens on, interstate commerce.
Moreover, Beermann turned out a narrative that is as accessible to lay readers as it is to legal scholars.
It all started when Beermann 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, legally approved race-based segregation.
He had never heard of the case.
His curiosity piqued, Beermann began a 10-year odyssey of trips to Louisiana, research, writing and re-writing, fueled by a drive to document the court’s first step toward validating segregation in U.S. 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 was a mixed-race, wealthy woman whose free family owned slaves that worked their Louisiana plantations. As was her custom, Decuir 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, but the owner appealed. The case wound its way to the Supreme Court as Hall v. Decuir. The court ruled against Madame Decuir, citing the U.S. Constitution’s Dormant Commerce Clause doctrine, which prohibits state legislation that discriminates against interstate or international commerce.
Essentially, the court accepted the owner’s argument that, despite violating Louisiana state law, segregation was both customary on riverboats and necessary to keep white customers – i.e., integration had the potential to negatively impact his business.
Although Beermann already knew the Supreme Court had prevented the federal government from enforcing Congress’ civil rights program for Reconstruction, he wasn’t aware it had also prevented states from enforcing 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.
The protests against the Vietnam War and Martin Luther King’s activism awakened Beermann’s interest in civil rights when he was a teenager growing up in Skokie, Illinois. 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 said he is a strong supporter, “although I don’t agree with all of its policies.” Beermann now lives in Swampscott with his wife, Debbie Korman. 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 Reconstruction, 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 Jack Beermann at a free Zoom author event on May 27 from 7-8 pm. To register, visit jccns.org.