Uphill All the Way: The Fortunes of Progressivism, 1919-1929
By Kevin C. Murphy, Copyright 2013. All Rights Reserved.

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Chapter Six: Legacies of the Scare
Progressives, Civil Liberties, and Labor

V. The Shame of America

I. The Education of Jane Addams.
II. Prisoners of Conscience.
III. The Laws and the Court.
IV. Shoemaker and Fish-Peddler.
V. The Shame of America.
VI. The Right to Organize.
VII. Professional Patriots.

One progressive dismayed -- but not at all surprised -- by the Sacco and Vanzetti verdict was Crisis editor W.E.B. Du Bois. "We who are black can sympathize with Sacco and Vanzetti and their friends more than other Americans," he wrote soon after the executions. "We are used to being convicted because of our race and opinions regardless of our proven guilt. We are used to seeing judge, jury, and public opinion lay down the rule: 'Better ten innocent Negroes lynched, than one guilty go free.'"1

Throughout the Twenties, Du Bois and the NAACP had been fighting to end the scourge of lynching in American life. While not much was expected from the new administration coming to power in March 1921 on this front, the overwhelming Republican majorities in both House of Congress, as well as the recent victories of Prohibition and Suffrage, suggested there may be some opportunity for progressive change for African Americans under Warren Harding. "If the American people can stop long enough to change the Constitution to decide whether the American people shall drink or not, or 6,000,000 people shall vote," argued The Crisis, "they can at least stop long enough to change the Constitution to say whether 12,000,000 people can live in safety."2

And, indeed at first, it seemed there might be cause for hope. Much more than his predecessor, who had openly admired Birth of a Nation and went out of his way to re-segregate the White House, President Harding, in his first year in office, took his opportunities to speak out against lynching and on behalf of civil rights. In his April 1921 address to Congress, as noted previously, he urged House and Senate "to wipe the stain of barbaric lynching from the banners of a free and orderly representative democracy." In June 1921, the president wrote the NAACP's James Weldon Johnson endorsing the idea of "a commission embracing representatives of both races" to "bring about the most satisfactory adjustment of relations between the races." (In the end both Harding and Coolidge endorsed this commission plan, but nothing came of it.) And in October 1921, while receiving an honorary law degree at the University of Alabama, Harding became the first president since the Civil War to address the issue of civil rights -- and to condemn lynching -- in a Southern state.3

To a segregated Birmingham crowd of 30,000 -- 20,000 whites and 10,000 blacks -- Harding gave a speech on race relations that, for the most part, echoed the conditions laid down in Booker T. Washington's Atlanta Compromise of 1895. Condemning the practice of lynching, the president argued that there should be "no occasion for great and permanent differentiation" on political and economic matters between the races, but everyone should recognize "the absolute divergence in things social and racial." "When I suggest the possibility of economic equality between the races, I mean it in precisely the same way and to the same extent that I would mean it if I spoke of equality of economic opportunity as between members of the same race," argued Harding. "Whether you like it or not," the president told a crowd of cheering African-Americans and sullen Southern whites, "unless our democracy is a lie, you must stand for that equality."4

That being said, Harding thought "it would be helpful to have the word 'equality' eliminated from this consideration; to have it accepted on both sides that this is not a question of social equality, but a question of recognizing a fundamental, eternal, and inescapable difference":
Let the black man vote when he is fit to vote, prohibit the white man voting when he is unfit to vote…Especially I would appeal to the self-respect of the colored race. I would inculcate in it the wish to improve itself as a distinct race, with a heredity, a set of traditions, an array of aspirations all its own. Out of such racial ambitions and pride will come natural segregations, without narrowing any rights… [A] black man cannot be a white man, and that he does not need and should not aspire to be much like a white man as possible in order to accomplish the best that is possible for him. He should seek to be, and he should be encourage to be, the best possible black man, and not the best possible imitation of a white man.5
Possibly as a show of good intentions and magnanimity, Harding also argued that African-Americans should begin to look outside the Republican Party for leadership. "Just as I do not wish the South to be politically entirely of one party," he told the Birmingham audience, "so I do not want the colored people to be entirely one party. I wish that both the tradition of a solid Democratic South and the tradition of a solidly Republican black race might be broken up. Neither political sectionalism nor any system of rigid groupings of the people will in the long run prosper our country."6

Instead Harding called for an America where "black men will regard themselves as full participants in the benefits and duties of American citizenship, when they will vote for Democratic candidates, if they prefer the Democratic policy on tariff or taxation, or foreign relations, or what-not; and when they will vote for the Republican ticket only for like reasons. We cannot go on, as we have gone one for more than half a century, with one great section of our population, numbering as many people as the entire population of some significant countries of Europe, set off from real contribution to solving our national issues, because of a division on race lines."7

In retrospect, this seems like rather tepid messaging, and by even as early as the following May -- when Harding gave a speech dedicating the Lincoln Memorial -- the president then avoided making any further pronouncements on race relations to a segregated crowd. But, at the time, having presidents address issues of race before a mixed Southern crowd was not considered normalcy. "It has taken sixty years for a President of the United States - a Republican President - to pick up the broken threads of understanding as they fell from the cold hand of the martyred Lincoln," gushed the Birmingham News, who thought Harding's statement was "was a message of vital importance to the South, the nation, and the world." The New York Globe called Harding's Birmingham address "the most important and the most intelligent statement of the right approach to the negro problem sponsored by any public man in a generation."8

Nor did opponents of the speech take it as tepid. "[T]o encourage the negro, who in some States, as in my own, exceeds the white population, to strive through every political avenue to be placed upon an equality with the whites," suggested Senator Pat Harrison of Mississippi, "is a blow to the white civilization of the country that will take years to combat." Similarly, Senator Tom Heflin of Alabama thought "God Almighty has fixt limits and boundary lines between the races, and no Republican living can improve upon His handiwork." The Nashville Banner reminded Harding that "[i]t irritates the South to be lectured on its alleged ill-treatment of the Negro," while the Montgomery Journal, in an editorial entitled "The President's Mistake," pointed out that "the South resents intermeddling, whether that intermeddling comes from high or low."9

While the Birmingham address was mostly lauded in the African-American press, one of the harshest critics of Harding's words -- perhaps because he had been fighting this exact delineation of the Color Line since at least the 1903 publication of The Souls of Black Folk -- was W.E.B. Du Bois and The Crisis. To be sure, Du Bois applauded the president's call for the right to vote, education, and economic justice for all people. "In this the President made a braver, clearer utterance than Theodore Roosevelt ever dared to make, or than William Taft or William McKinley ever dreamed of. For this let us give him every ounce of credit he deserves." That being said, Du Bois's thought Harding's remarks on social equality would "pledge the nation, the Negro race and the world to a doctrine so utterly inadmissible in the twentieth century, in a Republic of free citizens and in an age of Humanity that one stands aghast at the motives and the reasons for the pronouncement."10

Cede the prospect of social equality, Du Bois argued, and all is lost. "No system of social uplift which begins by denying the manhood of a man can end by giving him a free ballot, a real education and a just wage… To deny this fact is to throw open the door of the world to a future of hatred, war and murder such as never yet has staggered a bowed and crucified humanity." Nor did Du Bois believe that the race pride evoked by Harding was a sign of positive progress. "For the day that Black men love Black men simply because they are Black, is the day they will hate White men simply because they are White."11

In short, while it was a promising sign to see the president address race relations in a comprehensive fashion, in effect Harding's address was doubly irritating to Du Bois. It not only hearkened back to the Atlanta Compromise philosophy of Booker T. Washington, which Du Bois had spent much of his professional life railing against. It also incorporated the notion of a distinct and separate race pride that was gaining adherents for one of Du Bois's main rivals in the Twenties, Marcus Garvey.

If the president and Du Bois could not see eye to eye on the overarching project of race relations, they could at least agree that lynching, in Harding's words, was "a very sore spot on our boast of civilization." And so, working with the NAACP, Congressman Leonidas Dyer, a white Republican from East St. Louis representing a majority black district, re-introduced the Dyer Anti-Lynching Bill on April 11, 1921. First introduced in 1919, Dyer's legislation was the first anti-lynching bill in Congress seen since 1900, when the last and only black member of Congress for decades, George H. White of North Carolina, had introduced one that went nowhere. Defining lynching as any murder committed by three or more people, the Dyer bill proposed a $5000 fine or jail time (from five years to life) for any sheriff or law enforcement official who refused to protect prisoners from justice or prosecute lynchers after the fact. It also mandated that the federal government could step in as the prosecuting authority if the county or state failed to take action, and that counties where lynching took place would be forced to pay $10,000 to the family of the victim.12

The urgency for federal action on the issue was underscored the following month, when another race riot -- not unlike the conflagrations of the Red Summer two years earlier -- erupted in the oil boom town of Tulsa, Oklahoma, home to one of the more affluent African-American communities in the South. On Memorial Day, some sort of misunderstanding had occurred in the elevator of the Drexel Building in downtown Tulsa between a nineteen-year-old black shoe shiner, Dick Rowland, and a seventeen-year-old white elevator operator, Sarah Page. Be it due to a lover's quarrel, an accidental slip, or something more unsavory, a nearby clothing store clerk heard a scream and saw Rowland hurriedly exiting the elevator. (The fact that both were at the Drexel Building on Memorial Day, a holiday, suggests the two might have scheduled a meeting.) Sarah subsequently gave a statement to the police which -- like many of the documents surrounding the Tulsa riots -- is lost to history, although the lackadaisical response of the Tulsa police suggests an assault was unlikely. In any event, from the volatile spark of "an impudent Negro, a hysterical girl, and a yellow journal," in the words of Oklahoma's Adjutant General, one of the grimmest race riots in American history would be set afire.13

The next day, May 31st, 1921, Rowland was taken into custody by a white detective and one of the two African-American cops on the force. Upon hearing the news, the Tulsa Tribune, in an article which seems to have been deliberately removed from the record -- it was summarized in a 1946 master's thesis on the incident -- blared the headline "Nab Negro for Attacking Girl in Elevator" in its afternoon edition. Newsboys screamed "A Negro assaults a white girl!" on the street and, though this is also unclear due to the destroyed evidence, the Tribune also seems to have run an editorial along the lines of "To Lynch Negro Tonight." Soon, according to one white resident, "talk of lynching spread like a prairie fire," and by evening, a crowd of hundreds had amassed in front of the Tulsa County Courthouse.14

Around 9pm, twenty-five African American men from Greenwood, a reasonably affluent black neighborhood referred to as the "Negro Wall Street" or "Little Africa" by disparaging white residents, arrived at the Courthouse with shotguns and rifles and offered to aid authorities in the protection of Dick Rowland. The police declined and these men left to patrol the streets by car -- a visible reminder that the African American community would not cower in the face of a lynching. Now, many whites entered a state of panic, running home to get guns and even trying to break into the local Armory. By 10pm, as two thousand whites buzzed around the Tulsa Courthouse, another armed contingent of African American men arrived to offer their services. "Nigger, what are you doing with that pistol?" one white man screamed at a black veteran of the World War. "I'm going to use if I have to," replied the veteran. When the white man lunged for the army-issue revolver, a struggle ensued and a shot rang out. Then, in the words of the sheriff, "all hell broke loose."15

Immediately the steps of the Tulsa Courthouse turned into a firing range and bloodbath, with as many as a dozen dead or wounded. As the heavily outgunned African-Americans began retreating back to Greenwood, they were followed by a raging crowd of whites, who began breaking into sporting goods stores for more weaponry and sounding the clarion call of "Nigger fight!" in nearby movie theaters. In the ensuing bloodlust, Dick Rowland, still under police protection, was mostly forgotten, and survived the long evening intact. For the next several hours, the fighting would be concentrated along the Frisco railroad tracks separating the black neighborhood of Greenwood from the white areas of town. As wild rumors abounded of trains headed to Tulsa with hundreds of black reinforcements, all-white National Guard units organized ostensibly to keep the peace, but more accurately to act as the vanguard of white forces against a perceived black uprising.16

At one in the morning, the first fires were lit -- Soon all of Greenwood, one of the most impressive and successful black communities in the South - would be looted and aflame, including dozens of African American-owned businesses and the recently completed Mount Zion Baptist Church. (Whites turned back the Tulsa Fire Department's attempts to quell the fires, so they instead worked to keep it from spreading into white neighborhoods.) At 2am, blacks defending Greenwood thought they had beaten back the advance, but three hours later, after some sort of still-undetermined signal that could have been a train whistle, whites spilled over the Frisco tracks in force -- systematically looting, burning, and killing.17

The African-American community was outnumbered, and those families that had not already evacuated -- and did not resist the onslaught -- were rounded up into hastily-formed internment camps. In the skies above, planes flew over Greenwood, apparently - although again reports vary on this front - firing and dropping sticks of dynamite. African-Americans defending the church, and using its belfry as a vantage, were forced to retreat when white rioters aimed a machine gun at them. Some were shot in the back while fleeing for their lives. Others, like World War veteran "Peg Leg" Taylor, followed the advice of Claude McKay's "If We Must Die" and made suicide stands to take down as many of the invaders as possible before they, too, were surrounded and killed.18

By noon the next day, as the State Police arrived and the fires died out, a thirty-six block area of Greenwood had been burned to the ground, leaving 10,000 homeless. Among the casualties to the fire were 1256 homes, churches, businesses, two black newspapers - The Tulsa Star and The Oklahoma Sun - a library, a school, and the Frissell Memorial Hospital, which at the time of its burning had been filled with wounded black men and women. The official death toll was 38 dead -- 28 blacks, 10 whites -- but the actual number was far above that, perhaps as many as 300. (It is impossible to say, particularly since many of the African-American dead were thrown into unmarked graves.) Approximately 800 were treated at hospitals with injuries, although again this is an undercount because only the white hospitals survived the conflagration.19

To The Nation, disgusted at the "terrible race riot" that had taken place, the "smoking ruins of Tulsa" proved the lie of Harding's Normalcy. "If Mr. Harding is to be President of the whole nation, if he is to do anything about that 'sweetest concord' which today is a figment of his imagination, he should insist upon an immediate inquiry into the color problem." The New Republic similarly saw in the Tulsa riots "the deliberate sacrifice of law and order and civil rights to the passion of patriotism or the greed of business…bearing its proper fruit." "The Negroes are coming into a sense of solidarity," TNR said of Tulsa the following week, in an editorial entitled "Moving Toward Race War." "[T]he spirit of collective resistance is abroad in the Negro population…Mob law and peonage, as every intelligent person now recognizes, can be maintained only at the cost of increasing race bitterness, breaking out sporadically in manifestations of race war."20

Looking back on the riots in 1926, Du Bois told of how "White Tulsa and all the countryside armed for war. They came down to black Tulsa with machine guns and airplanes. It was real war: murder, fire, rape, theft. The same sort of thing that gained the Croix de Guerre in the World War. They killed unarmed men, women, children. They left sobbing despair and black ruin." And, writing for The Nation, soon after the incident, Walter White prophesied that Tulsa, if crimes like lynching were allowed to persist, was only a taste of things to come. "What is America going to do after such a horrible carnage," he asked, "one that for sheer brutality and murderous anarchy cannot be surpassed by any of the crimes now being charged to the Bolsheviki in Russia? How much longer will America allow these pogroms to continue unchecked?"
There is a lesson in the Tulsa affair for every American who fatuously believes that Negroes will always be the meek and submissive creatures that circumstances have forced them to be during the past three hundred years. Dick Rowland was an ordinary bootblack with no standing in the community. But when his life was threatened by a mob of whites, every one of the 15,000 Negroes of Tulsa, rich and poor, educated and illiterate, was willing to die to protect Dick Rowland. Perhaps America is waiting for a nationwide Tulsa to wake her. Who knows?21
Fortunately for the nation, Congressman Dyer had a presidentially-endorsed legislative remedy ready to go in the Dyer bill. "Having myself passed through the throes of our nation's most destructive race riot and massacre in the Tulsa holocaust," wrote A.J. Smitherman, the displaced former editor of the Tulsa Star, to President Harding and the Senate Judiciary Committee, "having lost a life-time's accumulation at the hands of the mob, and forced into exile with my wife and five children to escape lynching…may I not on behalf of other victims of mob hysteria and for the sake of the future security of our country urge an early and favorable report of the so-called Dyer anti-lynching bill now awaiting consideration of your committee?" Smitherman asked this "in the name of God and justice; in the name of the 4,097 souls American mobs have murdered since 1885; in the name of those who sacrificed life and property in the Tulsa riot and massacre to prevent the very thing that the Dyer Bill would penalize under federal statute; [and] in the name of the future peace and security of our common country."22

Through 1921 and 1922, both Dyer and the NAACP's James Weldon Johnson lobbied aggressively for the bill throughout the House and Senate. "Lynching is murder, but it is also more than murder," Johnson wrote in his form letter to every interested party. "This bill is aimed against lynching not only as murder but as anarchy." "For nearly two years, during the periods which Congress was in session," Johnson remembered in his autobiography, "I spent the greater part of my time in Washington. I tramped the corridors of the Capitol and the two office buildings so constantly that toward the end I could, I think, have been able to find my way about blindfolded…I saw and talked with every man in Congress who was interested in the bill or who, I thought, could be won over to it" Reporting in to Walter White about his lobbying efforts, Johnson told him, "I am pouring into them as much of our dope as they will hold."23

Southern House Democrats, meanwhile -- even though well outnumbered after the Harding sweep -- were not particularly enthused by the Dyer bill, and they used every tool they could in Roberts' Rules of Order to block the bill. In December of 1921, when the legislation first came up for debate, enough Southerners refused to show up that the House could not make quorum, and Speaker Gillett was forced to lock the doors and issue warrants for the missing congressmen.24

Forced to debate Dyer's bill in January, 1922, Democrats latched onto what one of the NAACP's legal advisors, Albert Pillsbury, had warned was the bill's weak link -- its constitutionality. Pointing to the Tenth Amendment, which reserved powers to the states, and the Supreme Court's 1873 Slaughterhouse decision, which circumscribed the Fourteenth Amendment's reach over state behavior, opponents of the bill asked where the federal government managed to obtain prosecutorial authority over lynchers in the states. Supporters argued this was a point for the courts, not the legislature, to decide, and, in any case, the Dyer bill was in accord with other recent laws like Prohibition, the Espionage and Sedition Acts, and the Mann Act and Harrison Narcotics Act regulating prostitution and opiates respectively.25

Leading the Democratic response on the floor was Congressman Hatton Sumners of Dallas, Texas, later to be Chair of the House Judiciary Committee for sixteen years. Mostly, Sumners trafficked in the usual racist tropes to fight the bill. "Only a short time ago," he averred, speaking of the African-Americans who thronged the balconies to watch the debates, "their ancestors roamed the jungles of Africa in absolute savagery…[Y]ou do not know where the beast is among them. Somewhere in that black mass of people is the man who would outrage your wife or your child, and every man who lives in the country knows it."26

Sumners took particular delight in using the constitutional argument to try to hoist Dyer supporters by their own petard. "I say to you can you cannot pass this bill unless you pass it under the influence of the same spirit which this bill denounces, viz, the mob spirit," he argued. "You say that the folks down in the South are not doing this thing fast enough, and the folks in the South say the officers are not doing this thing fast enough, and you each get ropes and they go after the criminal and you go after the Constitution." Speaking to Dyer directly, Sumner declared that "the Constitution of the United States stands at the door, guarding the governmental integrity of the States, the plan and the philosophy of our system of government, and the gentleman from Missouri, rope in hand, is appealing to you to help him lynch the Constitution."27

The vociferous attacks of Sumners and the other Southerners aside, the House of Representatives passed the Dyer Bill on January 26th, 1922 by a vote of 231 to 119, with eight Democrats, all but one from the North, voting in favor and 74 abstaining. Now, the focus of the NAACP turned to the Senate, where the filibuster would make passage a heavier lift. To grease the wheels, The Crisis emphasized that Republicans had, with sympathetic Northern Democrats, the two-thirds votes necessary to beat a filibuster if they tried. As such, Republicans were "responsible absolutely for the success or the failure of the Dyer Anti-Lynching Bill." If it did not pass, Du Bois argued, "any Negro who votes for the Republican Party at the next election writes himself down as a gullible fool."28

But first the bill had to get out of the Senate Judiciary Committee, where a man many thought would be a natural champion of the bill turned out to be against it. "Honorable William E. Borah," columnist Heywood Broun telegraphed on behalf of the New York Civic Club in May 1922: "Lynching…is a denial of everything that America stands for and represents the basest and most abhorrent form of anarchy. We call upon you to help wipe this disgrace to our country by using every legitimate means." "I agree with you absolutely that lynching is a relic of barbarism," Senate William Borah replied, "and I stand ready to do anything which will effectively deal with it…if you can find a leading lawyer in New York City who will cite me to the constitutional provisions." Borah -- one of the crucial votes on Judiciary -- was not buying the constitutionality argument.29

Throughout late 1921 and early 1922, the NAACP and other progressives bombarded Borah with arguments to help change his mind. James Weldon Johnson sent along the NAACP's recent report on "Thirty Years of Lynching in the United States," and offered to put Borah in touch with Congressman Dyer and a number of other legal experts supporting the bill. Moorfield Storey, president of the NAACP and former president of the American Bar Association, sent Borah his brief, based on Justice Brandeis's dissent in the 1920 Gilbert v. Minnesota case, arguing that "if the right to free speech is a privilege which belonged to every citizen of the United States even before the Fourteenth Amendment or even the First Amendment, a fortiori the rights to life, liberty, and property must be secured to the citizens of the United States."30

Dora Ogan, President of the Women's Republican Club, also shared her "surprise and disappointment" with Borah at his stance. "I cannot believe that senators of the United States will so stultify themselves," she wrote the Senator, "and at the same time assume responsibility for the continuance of the inhuman orgies of lynching. That the government of a civilized nation should deliberate as to whether it will or will not continue to torture, and burn at the stake, its men and WOMEN citizens is a spectacle to which the world will point with horrified amazement… Sodom and Gomorrah had nothing on the U.S.A. of today." Ernest Gruening, an editor at the Nation, alerted Borah in June 1922 that "within the last month, there have been a dozen lynchings including five burnings at the stake…If some form of anti-lynching bill is not passed by this Congress, it is unlikely ever to be, for it is not probable that the Republicans will ever again have so large a majority of both Houses." The Nation itself editorialized that "[i]t is the first and most elemental function of a government to protect human life - and no barriers of legalistic quibbling should prevent our abolishing the supreme anachronism of civilization."31

True to form, Borah only dug his heels in deeper. "No one wants to deal with this subject, I think, more than I do," he replied to Gruening, "But I can't find a shred of principle upon which to hang this measure under the Constitution. I have put a vast amount of time on it during the last six weeks and given it the best there was in me, and I can find no authority whatever for the law." To an African-American correspondent, Borah argued that passing an unconstitutional bill "will not help your people and…will only add another chapter of insincerity and disgrace to our dealing with the negro question since the war." To the editor of the Boston Transcript, he argued that he did not want "to prostitute my intellectual integrity in trying to pass bills which we have no authority to pass":
We have reached a point in our constitutional history where we must intelligently consider the proposition of redistributing the power between the State and the national government…I should like to see this great question of whether or not we shall redistribute our powers openly and candidly and intelligently presented to the people. I have no doubt at all that under the Constitution of the United States as it now stands, our attempt to deal with the lynching proposition would be a farce and another exhibition of lawlessness upon the part of Congress without anything gained in the end.32
In the end, Borah agreed not to actively stand in the way of the Dyer bill if it could pass the Senate Judiciary Committee without his vote. And so it did, eight to six, with Borah opposing the measure. But, with the constitutionality of the bill still in question, the Dyer Bill needed a powerful shepherd to guide it through the Senate floor, and Borah had already removed himself from consideration.33

When asked by Walter White, Senator Hiram Johnson affirmed that he insisted "upon the enforcement of the law and abhor its violation. There is no worse blot on our civilization than mob violence and lynching." As such, he was "very glad to do what lies in my power in behalf of this measure." But Hiram Johnson -- who had called African-Americans a "shiftless and stupid set" in private and written "that perhaps our idea of the…brotherhood of man as applied to our citizens of African descent may be a little wrong" -- was not particularly active in guiding the bill either. George Norris was generally progressive on issues of race relations. "There are good and bad people in all races," Norris said in 1922, "and there is as much sense in torturing one race as there would be in persecuting people with red hair, or every one with blue eyes." But while averse to lynching, Norris hadn't even formed an opinion on the Dyer legislation - He was waiting for it to come to a vote. So eventually, the NAACP turned to the Senate Majority Leader, Henry Cabot Lodge, and reminded him that Republicans had relied on the black vote in its corner for sixty years now. Congressman Dyer even took an unprecedented trip to Massachusetts to call for the defeat of his party colleague if the anti-lynching bill did not pass.34

When Senate debate opened on the bill on September 21, 1922, however, the introducer was not Henry Cabot Lodge but Senator Samuel Shortridge of California, a new member of the Senate almost completely unversed in procedural warfare. "My heart sank as I thought of the gap between a Borah and a Shortridge," James Weldon Johnson later remembered. Very quickly, Senate Democrats left the chamber en masse, then called for a quorum which no longer existed - effectively shunting the bill until after the midterm elections. The sheer ineptitude of Shortridge, Johnson and others surmised, meant that the fix against the bill was in.35

Nonetheless, in November 1922, supporters of the bill made the full-court press on behalf of the Dyer bill. A petition signed by 24 governors, 39 mayors, 47 lawyers and judges, 88 bishops, 29 college presidents and countless other prominent names was delivered to the Senate. In the meantime, the NAACP and the Anti-Lynching Crusaders, a women's organization founded by activist Mary Talbert in 1922, also embarked on a widespread advertising campaign denouncing lynching as "The Shame of America" and urging readers to contact their senators immediately for passage of the Dyer bill. "Do you know that the United States is the Only Land on Earth where human beings are Burned At the Stake?" it informed the over two million readers of eleven separate papers, including the New York Times, New York World, Chicago Daily News, Washington Star, Cleveland Plain Dealer, and Atlanta Constitution. "In Four Years, 1918-1921, Twenty-Eight People were Publicly BURNED BY AMERICAN MOBS. 3436 People Lynched 1889 to 1922." The "Shame of America" ads also noted that only 17% of lynchings occurred after an accused rape, and that "88 Women Have Been Lynched in the United States and the Lynchers Go Unpunished." The two organizations - calling this "the most amazing advertisement ever paid for and printed in any newspaper" - paid close to $7000 on the campaign.36

On November 27th, 1922, the Dyer bill again came to the floor, whereupon it was immediately greeted by a Senate filibuster led by Minority Leader Oscar Underwood of Alabama. "I now inform you," Underwood told the New York Evening Globe, "that this bill is not going to become law at this session of Congress." The Republicans, meanwhile, scarcely seemed to mind. Instead of upping the ante on the filibuster -- by forcing Democrats to hold the floor around the clock, for example -- the Senate Majority mainly just shrugged. "We cannot pass this bill in this Congress," Lodge eventually announced, agreeing to pull the bill until the next Congress. When James Weldon Johnson angrily called out Senator Lodge for his lackadaisical response to the filibuster, Lodge just as angrily responded that he never promised to get the bill through a filibuster in the first place. Either way, the Dyer Bill was dead in the current Congress. President Harding's secretary, George Christian, wrote Johnson soon after the defeat, hoping "that our colored citizens will justly place the responsibility for this where it belongs, to wit, upon the Democratic minority."37

W.E.B. Du Bois and the NAACP were beside themselves. "The Republicans did not try to pass the Dyer bill," he wrote in The Crisis of January 1923. "The Republicans never intended to pass the Dyer bill, unless they could do so without a fight, and without appearing publicly to defend the rights of the Negro race." The defeat of the legislation, Du Bois argued, represented an indictment of "that century-old attempt at government of, by, and for the people which today stands before the world convicted of failure...It is the failure and the disgrace of the white people of the United States." And there would be consequences. Granted it was the Democrats who, in the end, had "lynched the anti-lynching bill." Nevertheless, "[i]n the next two years, the Republican party expects us to forget that they have failed and deceived us; but if we Black voters, male and female, forget what the Republican party did to the Dyer bill, we deserve disfranchisement now and forever."38

As if on cue, the first day of January 1923 saw another large-scale racial incident begin in the small community of Rosewood, Florida, which was home to twenty-five to thirty African-American families, or around 350 people. That day, Fannie Taylor, a 22-year-old woman in the nearby white community of Sumner, reported being beaten by a black man. (Other eyewitnesses had seen a white man, who was not her husband James, enter the Taylor home that morning.) As word spread through Sumner of the incident, a possible suspect was named in Jesse Hunter, a black convict who had recently escaped a chain gang and was rumored to have fled toward Rosewood. Soon enough, a bloodthirsty white posse had formed up and, by the evening of New Year's Day, they had committed their first murder in Sam Carter, a local blacksmith who admitted under duress to helping a fugitive escape. (Whether that fugitive was Jesse Hunter or Fannie Taylor's white lover, a fellow Mason, depends on who is telling the story.)39

For the next two days, this white posse scoured the Rosewood area for Jesse Hunter. Among their travels they met Sylvester Carrier, a black man who refused to leave Rosewood when ordered to do so. Sensing trouble, Sylvester encouraged members of the community to gather at his mother Sarah's two-story residence. There, on January 4th, a firefight broke out between whites still searching for Jesse Hunter and 25-30 African Americans barricaded in the Carrier home, lasting until early into the morning of January 5th and leaving two white men and both Sylvester and Sarah Carrier dead. As word spread, hundreds of whites from surrounding communities descended on Rosewood, setting fire to the village and murdering at least three more African-Americans on the way. On Saturday, January 6th, many of the African-American families of Rosewood managed to escape via train, never to return. On Sunday, January 7th, whites burned the entire town - three churches, a school, a Masonic Hall, dozens of homes - to the ground. The official death toll was six blacks and two whites, although rumors linger of many more fatalities occurring. With the exception of one home and one general store owned by John Wright, a white merchant in town (who, unbeknownst to the marauders, had helped many of the African-American families escape), the town of Rosewood, Florida effectively ceased to exist.40

The Dyer Anti-Lynching bill would be introduced in the next few Congresses. "Practically everyone," Du Bois wrote in October 1923, "recognizes now that the Congress has the power, by appropriate legislation, to enforce that part of the 14th Amendment of the Constitution of the United States, which says that no State 'shall deny to any person within its jurisdiction the equal protection of its law.' Our right to do this…is the same upon which we acted in providing a law for the enforcement of the 18th Amendment." But never again, despite the best efforts of the NAACP, would it even pass the House.41

Nonetheless, Du Bois thought the failed campaign still had some effect on public opinion, even in the South. When the number of lynchings in America dropped from 64 in 1921 and 60 in 1922 to 28 in 1923 and 16 in 1924, Du Bois -- with the caveat that "probably hundreds of other lynchings have never been reported" -- argued that "the NAACP with the Dyer bill put the fear of God into the Southern mob and drove the logic of the lynching disgrace out of the head of the civilized South." This was not a solution, he emphasized. "Lynching is not yet stopped. It is simply curbed temporarily. Nothing will stop it but federal law. The Dyer bill must pass." But as a legislative priority, even as the NAACP continued to support the bill and draw attention to lynchings as they happened, the issue was effectively tabled in Congress for decades.42

As for the constitutional consternation of Senator Borah, Du Bois was not quite ready to let that betrayal drop. In August of 1926, Du Bois published an open letter to Borah asking why the Idaho Senator had apparently made a speech opposing the Thirteenth, Fourteenth, and Fifteenth Amendments. "Personally," wrote DuBois, "I am unable to conceive that a man of your breadth and knowledge of world events and sympathy with the struggling classes can except from your sympathy the twelve million Negroes of the United States." In reply -- also published in The Crisis -- Borah said he "had said nothing about the thirteenth amendment," which had ended slavery. "[H]ad I been speaking of it at all, I should have said it was altogether the right and noble thing to do." In a subsequent article, Borah argued that passing the fifteenth amendment, giving African-Americans the right to vote, "at the time it was written was a mistake. It came before the hot passions of the Civil War had cooled." Instead, Borah argued, the country should have followed Lincoln's notion, voiced just before his assassination, of granting the vote to "the very intelligent and those who served our cause as soldiers.'" By "educating and preparing the Negro for his new duties and responsibilities in citizenship," this policy "would have been better for all concerned, for the white and the black and for the whole country."43

"[A]ll of this is a discussion of history," Borah clarified. "The Negro has made great progress, all things considered, during the last fifty years:
He is particularly entitled to credit for, amid all his adverse circumstances…[showing] little, or no inclination to join with those political sects which rail at constitutional government...

It was an almost insuperable task imposed upon the South but, considering all things, I believe the South has acted quite as well with the Negro as the North. We have been just as intolerant as the South. We have employed the mob also. We have played politics with the Negro…We should seek to secure rights and justice to the Negro. But I would do so in recognition of the real facts rather than upon the basis of political expediency and at the expense of the physical and moral advancement of the Negro…

This is a problem of great national interest and can only be satisfactorily solved by complete cooperation between the North and the South. Such bills as…the Dyer Anti-lynching bill were and are founded upon a wholly false theory."44
In a separate editorial, Du Bois pushed back against Borah's argument, pointing out correctly "that it was the black voter" in the Reconstruction period "that gave the South the public school, democratic government and the beginnings of modern legislation for social uplift." Nonetheless, Borah's thoughts on the Reconstruction amendments suggest that the Senator's views on the constitutionality of the Dyer anti-lynching bill were at least partially infused with an undercurrent of racism and condescension. As Walter White put it, he could never understand "the extraordinary attitudes of several Western senators who were regarded as liberals on economic questions but who have been among the most injurious to the Negroes' cause." Borah's position rankled even further in the late Twenties, when he not only became an outspoken advocate of Prohibition, which relied on an expansive definition of federal power, but seemed to suggest to confidants, with an eye to the 1928 presidential race, that he was glad his stance on the Dyer bill had enhanced his support among Southern whites.45

In any event, with the legislative door apparently closed, the NAACP instead turned to the courts to achieve progress in race relations. The primary architect of desegregation, Charles Hamilton Houston, and his legal lieutenants Thurgood Marshall and Oliver Hill would not join the organization or begin their long march to Brown v. Board of Education until the 1930s. But the NAACP did score significant legal victories in 1925 and 1926 with the successful defense of Dr. Ossian Sweet, an African-American doctor in Detroit, and his brother Henry, on charges of murder.

In May 1925, Ossian Sweet, a young doctor working at the local black hospital, and his wife Gladys bought a house on the corner of Garland and Charlevoix avenues in Detroit, in what was then a predominantly white neighborhood. They moved into their new home in September, at which point, their new white neighbors went right to work. After receiving abusive and threatening phone calls that included death threats, Ossian left his young daughter at his mother's house, then organized a dinner party the next night with several friends. That evening, a large crowd of whites gathered outside the Sweet residence and began throwing rocks and bricks. From an upstairs window, Ossian's younger brother Henry Sweet and others opened fire, killing one white man, Leon Breiner, and wounding another. The police soon showed up and arrested everyone in the house.46

Dr. Ossian Sweet had expected trouble. As a child in Florida, he had witnessed both the burning alive of a black teenager and the chilling, glad-handing behavior of the white crowd after the deed. As a student at Howard University, he had seen the violence of the 1919 Washington DC race riot up close. As a newlywed studying in Paris, he had raged as the American Hospital, to whom he had made a sizable donation, refused to admit his wife Gladys when their baby was due. And as a new homeowner, Sweet had read of another black doctor in Detroit, Alexander Turner, who had been forcibly expelled from his new home by a white mob in June 1925. So, when the inevitable harassing phone calls began, Dr. Sweet had not moved his furniture into his new home. He had brought guns. "I have to die a man or live a coward," he had told his brother Otis before making the move.47

At the time, the NAACP's Walter White and James Weldon Johnson were looking to make more headway against housing discrimination and restrictive covenants, and the Sweet case seemed like a promising avenue in that regard. In order to have a white face to lead the defense, the organization went to the most famous criminal defense lawyer in America, who had just recently even further embellished his name squaring against William Jennings Bryan in Dayton, Tennessee. A longtime civil rights advocate whom even as unsparing a critic as DuBois thought "absolutely lacking in racial consciousness," Clarence Darrow took the case right away. He soon arrived in Detroit with Arthur Garfield Hays of the ACLU in tow.

The Sweets were also fortunate in the judge assigned to the case, future Governor and Supreme Court Justice Frank Murphy, who would write a memorable dissent to the Korematsu decision legitimating Japanese internment during World War II. In his own way, Judge Murphy -- who thought Darrow was "the most Christ-like man I have ever known" and that seeing him defend the Sweets was the "greatest experience of my life" -- would be as favorable to the defense as Judge Thayer had been to the prosecution over in Dedham, Massachusetts, allowing Darrow the latitude to put on another of his great performances.48

Going laboriously over Dr. Sweet's previous traumatic experiences, Darrow used the trial to indict the culture of fear that rampant and unchecked lynching had produced. "What did he do it for, gentlemen?" Darrow asked the jury in his closing summation. "Were you born yesterday or does the State think you were born yesterday? Why did he do it? He did it because he knew that the infinite forces of the universe had painted his face black; he did it because he knew that the white man hated him although they would let him work. That is why he did it. I don't need any argument for that, and I don't need any evidence for it, and you know it." Warming to his theme, Darrow concluded:
Any reason to expect trouble? Yes. Imagine your face is black, would you have expected trouble? Why, why? He is an intelligent man, he knew the history of his race, he knew that looking back to the terrible years that have marked their history he could see his answer; loaded like sardines in a box in the mid-decks of steamers and brought forcibly from their African homes, half of them dying in the voyage; he knew they were sold like chattels as slaves and were compelled to work without pay; he knew that families were separated when it paid the master to sell them; he knew that even after he had got liberty under the Constitution and the law, he knew that the bodies of dead Negroes were hanging from the limbs of trees of every state in the Union where they had been killed by the mob; he knew that in every state of the Union telegraph poles had been decorated by the bodies of Negroes dangling to ropes on account of race hatred and nothing else; he knew they had been tied to stakes in free America and a fire built around living human beings until they roasted to death; he knew they had been driven from their homes in the north and in great cities and here in Detroit, and he was there not only to defend himself and his home and his friends, but to stand for the integrity and independence of the abused race to which he belonged, and I say, gentlemen, you may send him to prison if you like, but you will only crown him as a hero who fought a brave fight against fearful odds, a fight for the right, for justice, for freedom, and his name will live and be honored when most of us are forgotten.49
Whether it was due to Darrow's silver tongue or not, the jury in the Sweet case deadlocked, and Judge Murphy was forced to call a mistrial. The following May, defending Henry Sweet, Darrow covered the same territory in similarly lyrical terms. "I believe the life of the Negro race has been a life of tragedy, of injustice, of oppression," Darrow said at the end of his eloquent eight-hour summation. "The law had made him equal - but man has not. And after all, the last analysis is what man has done. Gentlemen…Not one of their color sits on this jury. Their fate is in the hands of twelve whites. Their eyes are fixed on you, their hearts go out to you, and their hopes hang on your verdict. I ask you on behalf of the defendant, on behalf of this great state and this great city which must face this problem and face it squarely, I ask you in the name of progress and of the human race to return a verdict of not guilty."50

This time, the jury complied, and Henry Sweet was acquitted by a jury of twelve white men. Darrow's summation, which moved James Weldon Johnson to tears, would be distributed across the country by the NAACP. Johnson called it ""the most dramatic court trial involving the fundamental rights of the Negro in his whole history in this country," while poet Langston Hughes deemed Darrow's closing argument "one of the greatest in the history of American jurisprudence." The Nation thought the trial "probably the fairest ever accorded a Negro in this country." From his jail cell in Charlestown, Massachusetts, Bartolomeo Vanzetti thought the acquittal showed the capability of change. "Darrow said…'if you have progressed a little, you shall acquit these Negroes. And the jury acquitted them."51

The Sweet trial was more than just a rhetorical victory. Henry Sweet's acquittal, recalled Walter White in his memoirs, "broke the wave of attacks on the homes of Negroes, and there have fortunately been only a few isolated instances of this type of mob violence in the years since the Sweet case." If the doors of Congress were closed to change, then, the Sweet trial illustrated, the NAACP could still make some headway in the courts.52

Continue to Chapter 6, Pt. 6: The Right to Organize.

Return to the Table of Contents.

1. Lewis, W.E.B. Du Bois, 250.
2. Phillip Dray, At the Hands of Persons Unknown: The Lynching of Black America (New York: Modern Library, 2002), 258.
3. Warren Harding to James Weldon Johnson, June 18, 1921. Warren Harding Papers, LOC.
4. Russell, 472-473. The Negro's Status Declared by the President," The Literary Digest, November 19, 1921 (Vol. LXXI, No. 8), 1.
5. Ibid.
6. Ibid.
7. Ibid.
8. Ibid.
9. Ibid. Russell, 473.
10. W.E.B. Du Bois, "President Harding and Social Equality," The Crisis, December 1921. Reprinted at http://teachingamericanhistory.org/library/index.asp?document=1129
11. Ibid.
12. Dray, 260-261.
13. Scott Ellsworth, "The Tulsa Race Riot," The Center for Racial Justice. (http://www.tulsareparations.org/TulsaRiot.htm) "Tulsa," The Nation, June 15, 1921 (Vol.112, No. 2919) 839.
14. Ibid.
15. Ibid. Walter White, "The Eruption of Tulsa," The Nation, June 29, 1921 (Vol. 112, No. 2921), 910.
16. Ibid.
17. Ibid. James S. Hirsch, Riot and Remembrance: The Tulsa Race War and Its Legacy (New York: Houghton Mifflin, 2002).
18. Ibid.
19. Hirsch, 6.
20. "Tulsa," The Nation, June 15, 1921 (Vol.112, No. 2919) 839. "The Week," The New Republic, June 15, 1921 (Vol. XXVII, No. 341), 58. "Moving Toward Race War," The New Republic, June 22, 1921 (Vol. XXVII, No. 342, 96-97.
21. "Tulsa," The Crisis, April 1926, 269. Walter White, "The Eruption of Tulsa," 910.
22. A.J. Smitherman to Senate Judiciary Committee, undated, WJB Box 127: Anti-Lynching Bill.
23. James Weldon Johnson, Letter of Support, January 21, 1922. NAACP Papers, Library of Congress. James Weldon Johnson, Along This Way: The Autobiography of James Weldon Johnson (New York: Da Capo Press, 2000), 362-363. Dray, 267.
24. Dray, 265-266.
25. Dray, 263-264.
26. Dray, 264.
27. Office of the House Clerk, "Anti-Lynching Legislation Renewed," Black Americans in Congress (http://baic.house.gov/historical-essays/essay.html?intID=5&intSectionID=29)
28. Ibid, Dray, 266. "The Dyer Bill in the Senate," The Crisis, April 1922 (Vol. 23, No. 6), 248. "The Dyer Bill in the Senate," The Crisis, April 1922 (Vol. 23, No. 6), 248. Among the 119 no votes were four future Speakers of the House: John Nance Garner of Texas, Joseph Byrns of Tennessee, William Bankhead of Alabama, and Sam Rayburn of Texas. Black Americans in Congress.
29. Heywood Broun to William Borah, May 18, 1922. Borah to Heywood Broun, May 18, 1922. WJB Box 127: Anti-Lynching Bill.
30. James Weldon Johnson to William Borah, May 29th, 1922. James Weldon Johnson to William Borah, March 13, 1922. Moorfield Storey to William Borah, May 19th, 1922. WJB Box 127: Anti-Lynching Bill.
31. Dorah Ogan to William Borah, undated. Ernest Gruening to William Borah, June 2, 1922. WJB Box 127: Anti-Lynching Bill. "The Anti-Lynching Bill," The Nation, June 7th, 1922 (Vol. 114, No. 2970), 664. The burnings had occurred in Kirvin, Texas, where three African-Americans were covered in oil and set on fire after a seventeen-year-old white girl was found with her throat slit. Two white men were arrested for the crime the following day, since their footprints were all over the crime scene, but they talked their way out of it with the sheriff and quickly left town for good. Dray, 268-269.
32. William Borah to Ernest Gruening, May 19, 1922. William Borah to Hayes McKinney, May 22, 1922. William Borah to James T. Williams, June 8, 1922. WJB Box 127: Anti-Lynching Bill. Borah, at one point, even began trafficking in the same smarmy arguments preferred by Hatton Sumners. "The Congressman who votes for a law which he believes to be unconstitutional…are the lawless brothers of those who, under more trying circumstances, take the law into their own hands and join the mob." When Moorfield Storey asked him to retract the comment, Borah said he did not think "the language I actually used…is spoken offensively…[T]here is nothing more offensive to me, Mr. Story, as a Senator than to have people write and tell me that it is not my business to inquire into the constitutionality of a measure." William Borah to Moorfield Storey, June 21, 1922. WJB Box 127: Anti-Lynching.
33. Dray, 268.
34. "Senator Hiram Johnson," The Crisis, September 1922 (Vol. 24, No. 5), 216-217. Ashby, 249-250. Greenbaum, 34. Dray, 266-267.
35. Dray, 269.
36. Dray, 269-270. Angelica Mungarro, "How did Black Women Promote the Dyer Anti-Lynching Bill, 1918-1923," Women and Social Movements in the United States 1600-2000, February 2002 (http://womhist.alexanderstreet.com/lynch/intro.htm). "The Shame of America," New York Times, November 23, 1922-American Social History Project. (http://historymatters.gmu.edu/d/6786) "Who Checked Lynching," The Crisis, February 1925 (Vol. 29, No. 4), 154. "The Cost," The Crisis, January 1923 (Vol. 25, No. 3), 106.
37. Dray, 271-272. George Christian to James Weldon Johnson, December 8, 1922. NAACP Papers, Library of Congress. Reprinted at http://www.digitalhistory.uh.edu/learning_history/lynching/harding_secretary.cfm
38. "Intentions," "Loss," "Gain," "The Democrats" The Crisis, January 1923 (Vol. 25, No. 3), 103-105.
39. Maxine Jones et al, "A Documented History of the Incident Which Occurred at Rosewood, Florida in 1923," Florida Board of Regents, 1993. (http://www.displaysforschools.com/rosewoodrp.html)
40. Ibid.
41. "Fourteenth Annual Convention," The Crisis, October 1923 (Vol. 26, No. 6), 260.
42. "Who Checked Lynching," The Crisis, February 1925 (Vol. 29, No. 4), 154. With the exception of the aberrational year of 1926, the number of lynchings in America continued to decline through the Twenties. "There is no doubt" the 34 lynchings in 1926, Du Bois argued, was due to "the fear of the Dyer bill" being "removed from the minds of the murderers. This is but a louder call for Federal legislation." "Lynching," The Crisis, February 1927 (Vol. 33, No. 4), 180.
43. "Borah," The Crisis, August 1926 (Vol. 23, No. 4), 166. William Borah, "Negro Suffrage," The Crisis, January, 1927, 132-133.
44. William Borah, "Negro Suffrage," The Crisis, January, 1927, 132-133.
45. "The War Amendments," The Crisis, January, 1927, 127-128. Ashby, 245-246, 250, 254-255.
46. Dray, 283-284.
47. Dray, 287-290.
48. Dray, 286-287. Doug Linder, "Melting Hearts of Stone: Clarence Darrow and the Sweet Trials," Famous American Trials: The Sweet Trial (http://law2.umkc.edu/faculty/projects/ftrials/trialheroes/Darrowmelting.html)
49. "Closing Argument of Clarence Darrow in the Case of People v. Ossian Sweet," November 24-25, 1925. (http://law2.umkc.edu/faculty/projects/ftrials/sweet/Darrowsumm1.html)
50. Dray, 292. "Closing Argument of Clarence Darrow in the Case of People v. Henry Sweet," May 11, 1926. (http://law2.umkc.edu/faculty/projects/ftrials/sweet/darrowsummation.html)
51. Dray, 292. James Weldon Johnson, "Detroit," The Crisis, July 1926. Linder.
52. Walter White, A Man Called White: The Autobiography of Walter White (Athens: University of Georgia Press, 1995), 79. Unfortunately, the end of the story was not as happy for Dr. Sweet. His infant daughter died from tuberculosis soon after the trial. Gladys would perish from the same disease in 1928, at the age of 27. In March 1960, at the age of 65, Dr. Sweet would kill himself with a shot to the head. Patricia Zacharias, "I Have to Die a Man or Live a Coward - The Saga of Dr. Ossian Sweet," The Detroit News, February 12, 2001.

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