Capitol Men (57 page)

On the morning of April 7, 1880, Whittaker failed to appear at roll call. When a cadet was sent to check his lodgings, he came upon a gruesome sight: Whittaker lay unconscious, trussed to his bed, with wounds to his ears and to his left hand. Someone had chopped off hunks of his hair, and there were streaks of blood on the floor. Whittaker, when brought around, gave a bizarre account of what happened: in the middle of the night, three disguised men had entered his room and attacked him with a knife, then bound him to the bed and smashed him in the face with a mirror. "Let's mark him as we mark hogs down South," he recalled one of his assailants saying. The trio, as they left, warned Whittaker not to report the incident. Two days earlier, he explained to his superiors, he had received a note: "Mr. Whittaker, You will be fixed. Better keep awake..." [Signed] A friend." But since he had received similar threats before, he had not mentioned this one to anyone.

"This thing has passed beyond the dignified charge of 'hazing,'" one faculty member admitted to reporters, who had hastened upriver to cover the story. "It was an offense equaled only by acts of masked burglars and robbers from the slums of New York City." But the next day, April 8, an investigating officer announced his startling conclusion: what had happened to Whittaker was not the work of "masked burglars," but rather a tall tale fabricated by Whittaker to avoid an upcoming exam.

Senator Bruce, who headed a congressional inquiry into the affair, knew too much of the recent history of West Point's ignoble treatment of black cadets to accept the notion that Whittaker had faked the incident. He told his Senate colleagues that such an outrageous event was
unacceptable even if, as some suggested, it could be shown to be an act of hazing with no taint of race hostility. Whittaker himself had by now demanded an official investigation, and President Hayes responded to the hubbub in the press by appointing Martin Townsend, the U.S. district attorney for the northern district of New York, to look into the matter.

Townsend, from his own preliminary inquiries, concluded that Whittaker had been the victim of a real attack and proposed that the boy's long isolation at West Point had inhibited him from defending himself. Townsend's suggestion offended General John M. Schofield, the school's supervisor. "If you think the rule is taught at West Point that a cadet is to tamely submit to a blow without returning it or defending himself you are greatly mistaken," Schofield insisted. "That rule may perhaps be taught in the Bible, but it is not taught here." The general seemed less concerned about a racial assault on campus than the suggestion that his cadets did not know how to stand up for themselves. He also had little patience for the intervention of Townsend, Bruce, or even President Hayes; he viewed their meddling as chiefly a political charade to impress blacks and sentimental Republicans.

Townsend's inquiry came to focus on the warning note Whittaker said he had received. According to handwriting experts, the black cadet had himself penned the note, and one authority even claimed to have matched the piece of paper it was written on with another that Whittaker had used. On May 29, 1880, Townsend's panel concluded that Whittaker had staged the entire incident, writing the warning note and then mutilating himself. The white cadets under suspicion were exonerated, but the controversy lingered, encouraged by extensive second-guessing in the nation's press.

In August, President Hayes summoned General Schofield to Washington and, expressing concern that a spirit of intolerance permeated West Point, informed him he was to be replaced as the school's head. Schofield was stunned. A war hero who, over the years, had handled a number of sensitive diplomatic chores for Presidents Johnson and Grant (including the arrangements for a naval base to be established in the Hawaiian Islands at Pearl Harbor), he vehemently defended the school by placing the recent trouble in a societal context: if racial equality was not yet accepted in American society at large, why should the U.S. Military Academy have to be the exception? Why should black and white cadets, who were, after all, made to live, study, and work in very close
quarters, be expected to practice mutual acceptance and tolerance when such courtesies were not observed by other Americans?

Hayes heard Schofield out but was determined to set a new tone at West Point, so he went ahead and replaced Schofield with a man whose very name had come to imply fair-mindedness and a balanced approach to racial justice: the former Freedmen's Bureau chief General O. O. Howard. In explaining his new job to Howard, the army commander, William T. Sherman, said, "I am willing to go as far as the furthest in this question, but I do not believe West Point is the place to try the experiment of social equality...[it] must be admitted in civil life, in Congress, the Cabinet, and the Supreme Court before it is enforced at West Point."

Whittaker, meanwhile, insisting that the academy's inquiry had been biased, asked for a full court-martial in order to clear himself. This trial began in New York City in February 1881. The prosecutor, Asa Bird Gardiner, a veteran military attorney, accused Whittaker of faking the attack "with the design and intention to excite public sympathy, to bring discredit upon [West Point], to obtain notoriety, and further to avoid and escape an approaching public examination." He also charged the cadet with having lied during the original inquiry. Whittaker's counsel was none other than Daniel H. Chamberlain, the former governor of South Carolina, who was now in private practice in New York. Chamberlain went to work raising questions about the methods used in the official inquiry. He cast doubt on the handwriting experts, the initial medical analysis of Whittaker's injuries, and the general atmosphere of prejudice at West Point, which had made it impossible for Whittaker to get a fair hearing. The ever-meticulous Chamberlain, in a three-hundred-page summation, carefully impeached almost all of the evidence used by the prosecution and concluded that the institution lacked the proof to convict Whittaker of any wrongdoing.

The nation followed the trial closely, cognizant of its implications for the larger debate over civil rights. Had Whittaker been treated as a pariah because he was black or because he lacked admirable qualities? Could whites, in their personal lives or in their business, be made to associate with blacks? And, as it was human nature to discriminate among those one wished to befriend, wouldn't blacks, who were, after all, a stigmatized minority, always complain of exclusion?

Gardiner, in response to Chamberlain, acknowledged that the black cadet had been made unwelcome, "but whether this occurred because
he made himself unpopular ... or because of certain disagreeable personal peculiarities ... or whether it was on account of his colored skin merely, or all combined, is something difficult to determine." Whittaker conceded he was not well liked, and some of the cadets who knew him explained to the court that they found certain of his grooming habits, such as putting grease in his hair, offensive; they also testified that Whittaker possessed an evasive quality that made them uneasy. Gardiner charged that this ostracism, which Whittaker likely deserved, led him to seek revenge on the institution and his fellow cadets by shamming an attack. Invoking some of the pseudo-scientific hokum on race then prevalent in the nation's magazines, the prosecutor explained, "Negroes are noted for their ability to sham and feign. 'Playing Possum' is an Africanism that has come to be generally adopted, and the colored person is—according to all anthropologists—endowed with cunning and the power of mimicry."

Leaving no stone unturned, Gardiner then adopted a version of Schofield's view: Whittaker was a liar who had made up the tale of the assault; but even worse, he was a coward—and clearly unsuited for the academy—because he did not have the presence of mind to punish his attackers with his fists. Whittaker was, the prosecutor concluded, "a person born to obey far more than to command"—a pointed attempt to defame Whittaker, since it was well known that the purpose of the cadets' training was to make them leaders of men. The charge was hardly fair to Whittaker: in standing alone to defend his honor, insisting on his innocence, and enduring endless accusations and inquiries, he was, if nothing else, showing considerable strength of character.

On June 10, 1881, Whittaker was judged guilty, and the court recommended that he be spared harsh punishment and simply thrown out of the academy. Chamberlain and Richard Greener quickly raised technical issues concerning the conviction to D. G. Swaim, the judge advocate general of the army, who in December dismissed the court-martial's findings on the grounds that the introduction of Whittaker's private letters as evidence had been inappropriate and that the prosecution had not proved satisfactorily that Whittaker's own version of the event was untrue. On March 22, 1882, President Chester Arthur, who thirty years before, as a brash twenty-one-year-old attorney, had successfully defended the civil rights of Elizabeth Jennings, a black woman beaten by a conductor and ejected from a New York City streetcar, formally vacated Whittaker's sentence. Theoretically, Whittaker should then have been allowed to return to West Point, but the school that same day discharged him permanently for his poor performance on examinations held in June 1880, at the height of the affair.

When in late 1883 the Supreme Court at last took up
Civil Rights Cases,
the five claims that had piled up under the Civil Rights Act of 1875, the court acted as many observers had anticipated and applied a narrow focus to the wording of the Thirteenth and Fourteenth Amendments, setting aside their possible link to related legislation as well as the intent of the amendments' framers. Justice Joseph P. Bradley, in the majority 8-1 opinion, attacked the Thirteenth Amendment as insufficient to support the law, finding that there was no "badge of slavery" in the denial of a public accommodation. The Illinois senator Lyman Trumbull had used the term "badge of servitude" in proposing the Civil Rights Act of 1866, suggesting that the Thirteenth Amendment could be interpreted to address not only slavery but related discrimination. The Supreme Court appeared to agree in several cases in the late 1860s, but it changed course in
Blyew v. U.S.
(1872), when it ruled that denying black witnesses the right to testify against a white person in court did not constitute a "badge of slavery" under the Thirteenth Amendment. The following year, in the
Slaughterhouse Cases,
the high court specifically limited the amendment's relevance to the condition of chattel slavery.

Bradley, curiously, had argued for a broader definition of "badges of slavery" in
Blyew,
but now he came down firmly against such an expanded interpretation. "It would be running the slavery argument into the ground," said he, "to make it apply to every act of discrimination which a person may see fit to make as to the guests he will entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theatre, or deal with in other matters of intercourse or business." Bradley went so far as to propose, as an example, that the antebellum practice whereby inns and conveyances turned away blacks for fear they could be runaway slaves was not a "badge of slavery," since the act "was merely a means of preventing such escapes, and was no part of the servitude itself." With the court willing to slice the interpretation of "badges of slavery" that thin, the concept's application to the broader issues at stake in
Civil Rights Cases
had little chance.

As for the Fourteenth Amendment, Bradley declared that

[the Civil Rights Law of 1875] proceeds
ex directo
to declare that certain acts committed by individuals shall be deemed offences, and
shall be prosecuted and punished by proceedings in the courts of the United States ... In other words, it steps into the domain of local jurisprudence, and lays down rules for the conduct of individuals in society towards each other, and imposes sanctions for the enforcement of those rules, without referring in any manner to any supposed action of the state or its authorities.

The section of the Fourteenth Amendment securing Congress's right to "adopt appropriate legislation" to adjust state laws, said Bradley, did not allow Congress to "legislate upon subjects which are within the domain of state legislation." So long as proprietors of trains and steamboats and other businesses stayed within state regulations, they could discriminate among their passengers as they saw fit. Bradley concluded, "When a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men's rights are protected."

The gist of the court's ruling, handed down on October 15, 1883, was that Congress possessed no constitutional authority to enforce equal rights in public accommodations. "Sumner's Law," so nobly intended, so ardently fought for, was after less than a decade of existence about to be lowered ignominiously into its grave.

It would, however, receive an eloquent send-off. The lone dissent in the case came from the pen of Justice John Harlan, "the Great Dissenter," as he would later be known, and it was his brief—far more than Bradley's—that would achieve immortality. Coupled with Harlan's eloquent objection to the majority in
Plessy v. Ferguson,
the Louisiana railroad case that in 1896 established the doctrine of "separate but equal," the writings sound a powerful intellectual protest to the Supreme Court's wayward drift in the post-Reconstruction era.

A son of Kentucky, John Harlan had grown up in a family that opposed secession but also looked disapprovingly on abolition, fearing that an instantaneous freeing of the slaves would rupture Southern society. The Harlans voiced support for African colonization schemes, quietly manumitted some of their own slaves, and held fast to the notion that the states should be left to deal with the issue. But in the war John Harlan served with a Union regiment and by the late 1860s had joined the Republican Party, for he accepted the Reconstruction amendments and was offended by the belligerence of "the irreconcilables," the Kentucky Democrats who refused to acknowledge the changes the war had brought. President Hayes appointed Harlan to the Supreme Court in 1877.