CIVIL
RIGHTS CASES
109
MR. JUSTICE BRADLEY delivered the
opinion of the court. After stating the facts…he continued:
[**20] It is obvious that the primary and important question in all
[*9] the cases is the constitutionality of the law: for if the law
is unconstitutional none of the prosecutions can stand.
The sections of the law referred to provide as follows:
"SEC. 1. That 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,
theatres, and other places of public amusement; subject only to the conditions
and limitations established by law, and applicable alike to citizens of every
race and color, regardless of any previous condition of servitude.
"SEC. 2. That any person who shall violate the foregoing section by
denying to any citizen, except for reasons by law applicable to citizens of
every race and color, and regardless of any previous condition of servitude,
the full enjoyment of any of the accommodations, advantages, facilities, or
privileges in said section enumerated, or by aiding or inciting such denial,
shall for every such offence forfeit and pay the sum of five hundred dollars to
the [***12] person aggrieved thereby, to be recovered in an action
of debt, with full costs; and shall also, for every such offence, be deemed
guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less
than five hundred nor more than one thousand dollars, or shall be imprisoned
not less than thirty days nor more than one year: Provided, That all persons
may elect to sue for the penalty aforesaid, or to proceed under their rights at
common law and by State statutes; and having so elected to proceed in the one
mode or the other, their right to proceed in the other jurisdiction shall be
barred. But this provision shall not apply to criminal proceedings, either
under this act or the criminal law of any State: And provided further, That a
judgment for the penalty in favor of the party aggrieved, or a judgment upon an
indictment, shall be a bar to either prosecution respectively."
Are these sections constitutional? The first section, which is the principal
one, cannot be fairly understood without attending to the last clause, which
qualifies the preceding part.
The essence of the law is, not to declare broadly that all persons shall be
entitled to the full and equal [***13] enjoyment of the
accommodations, advantages, facilities, and privileges of inns,
[*10] public conveyances, and theatres; but that such enjoyment
shall not be subject to any conditions applicable only to citizens of a
particular race or color, or who had been in a previous condition of servitude.
In other words, it is the purpose of the law to declare that, in the enjoyment
of the accommodations and privileges of inns, public conveyances, theatres, and
other places of public amusement, no distinction shall be made between citizens
of different race or color, or between those who have, and those who have not,
been slaves. Its effect is to declare, that in all inns, public conveyances,
and places of amusement, colored citizens, whether formerly slaves or not, and
citizens of other races, shall have the same accommodations and privileges in
all inns, public conveyances, and places of amusement as are enjoyed by white
citizens; and vice versa. The second section makes it a penal offence in any
person to deny to any citizen of any race or color, regardless of previous
servitude, any of the accommodations or privileges mentioned in the first
section.
Has Congress constitutional power [***14] to make such a law? Of
course, no one will contend that the power to pass it was contained in the
[**21] Constitution before the adoption of the last three
amendments. The power is sought, first, in the Fourteenth Amendment, and the
views and arguments of distinguished Senators, advanced whilst the law was
under consideration, claiming authority to pass it by virtue of that amendment,
are the principal arguments adduced in favor of the power. We have carefully
considered those arguments, as was due to the eminent ability of those who put
them forward, and have felt, in all its force, the weight of authority which
always invests a law that Congress deems itself competent to pass. But the
responsibility of an independent judgment is now thrown upon this court; and we
are bound to exercise it according to the best lights we have.
The first section of the Fourteenth Amendment (which is the one relied on),
after declaring who shall be citizens of the United States, and of the several
States, is prohibitory in its character, and prohibitory upon the States. It
declares that:
[*11] "No State shall make or enforce any law which shall
abridge the privileges or immunities of [***15] citizens of the
United States; nor shall any State deprive any person of life, liberty, or
property without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws."
It is State action of a particular character that is prohibited. Individual
invasion of individual rights is not the subject-matter of the amendment. It
has a deeper and broader scope. It nullifies and makes void all State
legislation, and State action of every kind, which impairs the privileges and
immunities of citizens of the
An apt illustration of this distinction may be found in some of the provisions
of the original Constitution. Take the subject of contracts, for example. The
Constitution prohibited the States from passing any law impairing the
obligation of contracts.This did not give to Congress power to provide laws for
the general enforcement of contracts; nor power to invest the courts of the
And so in the present case, until some State law has been passed, or some State
action through its officers or agents has been taken, adverse to the rights of
citizens sought to be protected by the Fourteenth Amendment, no legislation of
the United States under said amendment, nor any proceeding under such
legislation, can be called into activity: for the prohibitions of the amendment
are against State laws and acts done under State authority. Of course,
legislation may, [**23] and should be, provided in advance to meet
the exigency when it arises; but it should be adapted to the mischief and wrong
which the amendment was intended to provide against; and that is, State laws,
or State action of some kind, adverse to the rights of the citizen secured by
the amendment. Such legislation cannot properly cover the whole domain of
rights appertaining to life, liberty and property, defining them and providing
for their vindication. That would be to establish a code of municipal law
regulative of all private rights between man and man in society. It would
[***20] be to make Congress take the place of the State
legislatures and to supersede them. It is absurd to affirm that, because the
rights of life, liberty and property (which include all civil rights that men
have), are by the amendment sought to be protected against invasion on the part
of the State without due process of law, Congress may therefore provide due
process of law for their vindication in every case; and that, because the
denial by a State to any persons, of the equal protection of the laws, is
prohibited by the amendment, therefore Congress may establish laws for their
equal protection. In fine, the legislation which Congress is authorized to
adopt in this behalf is not general legislation upon the rights of the citizen,
but corrective legislation, that is, such as may be necessary and proper for
counteracting such laws as the States may [*14] adopt or enforce,
and which, by the amendment, they are prohibited from making or enforcing, or
such acts and proceedings as the States may commit or take, and which, by the
amendment, they are prohibited from committing or taking. It is not necessary
for us to state, if we could, what legislation would be proper for Congress
[***21] to adopt. It is sufficient for us to examine whether the
law in question is of that character.
An inspection of the law shows that it makes no reference whatever to any supposed
or apprehended violation of the Fourteenth Amendment on the part of the States.
It is not predicated on any such view. It 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
If this legislation is appropriate for enforcing the prohibitions of the
amendment, it is difficult to see where it is to stop. Why may
[**24] not Congress with equal show of authority enact a code of
laws for the enforcement and vindication of all rights of life, liberty, and
property? If it is supposable that the States may deprive persons of life,
liberty, and property without due process of law (and the amendment itself does
suppose this), why should not Congress proceed at once to prescribe due process
of law for the protection of every one of these fundamental rights, in every
possible case, as well as to prescribe equal privileges in inns, public
conveyances, and theatres? The truth is, that the implication of a power to
legislate in this manner is based [*15] upon the assumption that if
the States are forbidden to legislate or act in a particular way on a
particular subject, and power is conferred upon Congress to enforce the
prohibition, this gives Congress power to legislate generally upon that
subject, and not merely power to provide modes of redress against such State
legislation or action. The assumption is certainly unsound. It is repugnant
[***23] to the Tenth Amendment of the Constitution, which declares
that powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively or to
the people.
We have not overlooked the fact that the fourth section of the act now under
consideration has been held by this court to be constitutional. That section
declares "that no citizen, possessing all other qualifications which are
or may be prescribed by law, shall be disqualified for service as grand or
petit juror in any court of the United States, or of any State, on account of
race, color, or previous condition of servitude; and any officer or other
person charged with any duty in the selection or summoning of jurors who shall
exclude or fail to summon any citizen for the cause aforesaid, shall, on conviction
thereof, be deemed guilty of a misdemeanor, and be fined not more than five
thousand dollars." In Ex parte Virginia, 100
[**25] These sections, in the objectionable features before
referred to, are different also from the law ordinarily called the "Civil
Rights Bill," originally passed [***25] April 9th, 1866, 14
Stat. 27, ch. 31, and re-enacted with some modifications in sections 16, 17,
18, of the Enforcement Act, passed May 31st, 1870, 16 Stat. 140, ch. 114. That
law, as re-enacted, after declaring that all persons within the jurisdiction of
the United States shall have the same right in every State and Territory to
make and enforce contracts, to sue, be parties, give evidence, and to the full
and equal benefit of all laws and proceedings for the security of persons and
property as is enjoyed by white citizens, and shall be subject to like
punishment, pains, penalties, taxes, licenses and exactions of every kind, and
none other, any law, statute, ordinance, regulation or custom to the contrary
notwithstanding, proceeds to enact, that any person who, under color of any
law, statute, ordinance, regulation or custom, shall subject, or cause to be
subjected, any inhabitant of any State or Territory to the deprivation of any
rights secured or protected by the preceding section (above quoted), or to
different punishment, pains, or penalties, on account of such person being an
alien, or by reason of his color or race, than is prescribed for the punishment
of citizens, shall [***26] be deemed guilty of a misdemeanor, and
subject to fine and imprisonment as specified in the act. This law is clearly
corrective in its character, intended to counteract and furnish redress against
State laws and proceedings, and customs having the force of law, which sanction
the wrongful acts specified. In the Revised Statutes, it is true, a very
important clause, to wit, the words "any law, statute, ordinance,
regulation or custiom to the contrary notwithstanding," which gave the
declaratory section its point and effect, are omitted; but the penal part, by
which the declaration is enforced, and which is really the effective part ofthe
law, retains the reference to State laws, by making the penalty apply only to
those who should subject [*17] parties to a deprivation of their
rights under color of any statute, ordinance, custom, etc., of any State or
Territory: thus preserving the corrective character of the legislation.
In this connection it is proper to state that civil rights, such as are
guaranteed by the Constitution against State aggression, cannot be impaired by
the wrongful acts of individuals, unsupported by State authority in the shape
of laws, customs, or judicial or executive proceedings. The wrongful act of an
individual, unsupported by any [**26] such authority, is simply a
private wrong, or a crime of that individual; an invasion of the rights of the
injured party, it is true, whether they affect his person, his property, or his
reputation; but if not sanctioned in some way by the State, or not done under
State authority, his rights remain in full force, and may presumably be
vindicated by resort to the laws of the State for redress. An individual cannot
deprive a man of his right to vote, to hold property, to buy and sell, to sue
in the courts, or to be a witness or a juror; he [***28] may, by
force or fraud, interfere with the enjoyment of the right in a particular case;
he may commit an assault against the person, or commit murder, or use ruffian
violence at the polls, or slander the good name of a fellow citizen; but,
unless protected in these wrongful acts by some shield of State law or State
authority, he cannot destroy or injure the right; he will only render himself
amenable to satisfaction or punishment; and amenable therefor to the laws of
the State where the wrongful acts are committed. Hence, in all those cases
where the Constitution seeks to protect the rights of the citizen against
discriminative and unjust laws of the State by prohibiting such laws, it is not
individual offences, but abrogation and [*18] denial of rights,
which it denounces, and for which it clothes the Congress with power to provide
a remedy. This abrogation and denial of rights, for which the States alone were
or could be responsible, was the great seminal and fundamental wrong which was
intended to be remedied. And the remedy to be provided must necessarily be
predicated upon that wrong. It must assume that in the cases provided for, the
evil or wrong actually committed [***29] rests upon some State law
or State authority for its excuse and perpetration.
Of course, these remarks do not apply to those cases in which Congress is
clothed with direct and plenary powers of legislation over the whole subject,
accompanied with an express or implied denial of such power to the States, as
in the regulation of commerce with foreign nations, among the several States,
and with the Indian tribes, the coining of money, the establishment of post
offices and post reads, the declaring of war, etc. In these cases Congress has
power to pass laws for regulating the subjects specified in every detail, and
the conduct and transactions of individuals in respect thereof. But where a
subject is not submitted to the general legislative power of Congress, but is only
submitted thereto for the purpose of rendering effective some prohibition
against particular State legislation or State action in reference to that
subject, the power given is limited by its object, and any legislation by
Congress in the matter must necessarily be corrective in its character, adapted
to counteract and redress the operation of such prohibited State laws or
proceedings of State officers. [***30]
If the principles of interpretation which we have laid down are correct, as we
deem them to be (and they are in accord with the principles laid down in the
cases before referred to, as well as in the recent case of United States v.
Harris, [**27] 106 U.S. 629), it is clear that the law in question
cannot be sustained by any grant of legislative power made to Congress by the
Fourteenth Amendment. That amendment prohibits the States from denying to any
person the equal protection of the laws, and declares that Congress shall have
power to enforce, by appropriate legislation, the provisions of the amendment.
The law in question, without any reference to adverse State legislation on the
subject, [*19] declares that all persons shall be entitled to equal
accommodations and privileges of inns, public conveyances, and places of public
amusement, and imposes a penalty upon any individual who shall deny to any
citizen such equal accommodations and privileges. This is not corrective
legislation; it is primary and direct; it takes immediate and absolute
possession of the subject of the right of admission to inns, public
conveyances, and places of amusement. It supersedes and displaces
[***31] State legislation on the same subject, or only allows it
permissive force. It ignores such legislation, and assumes that the matter is
one that belongs to the domain of national regulation. Whether it would not
have been a more effective protection of the rights of citizens to have clothed
Congress with plenary power over the whole subject, is not now the question.
What we have to decide is, whether such plenary power has been conferred upon
Congress by the Fourteenth Amendment; and, in our judgment, it has not.
We have discussed the question presented by the law on the assumption that a
right to enjoy equal accommodation and privileges in all inns, public conveyances,
and places of public amusement, is one of the essential rights of the citizen
which no State can abridge or interfere with. Whether it is such a right, or
not, is a different question which, in the view we have taken of the validity
of the law on the ground already stated, it is not necessary to examine.
We have also discussed the validity of the law in reference to cases arising in
the States only; and not in reference to cases arising in the Territories or
the District of Columbia, which are subject to the [***32] plenary
legislation of Congress in every branch of municipal regulation. Whether the
law would be a valid one as applied to the Territories and the District is not
a question for consideration in the cases before us: they all being cases
arising within the limits of States. And whether Congress, in the exercise of
its power to regulate commerce amongst the several States, might or might not
pass a law regulating rights in public conveyances passing from one State to
another, is also a question which is not now before us, as the sections in
question are not conceived in any such view.
[*20] But the power of Congress to adopt direct and primary, as
distinguished from corrective legislation, on the subject in hand, is sought,
in the second place, from the Thirteenth Amendment, which abolishes slavery.
This amendment declares "that neither slavery, nor involuntary servitude,
except as a punishment for crime, whereof the party shall have been duly
convicted, shall exist within the United [**28] States, or any
place subject to their jurisdiction;" and it gives Congress power to
enforce the amendment by appropriate legislation.
This amendment, as well as the Fourteenth, is [***33] undoubtedly
self-executing without any ancillary legislation, so far as its terms are
applicable to any existing state of circumstances. By its own unaided force and
effect it abolished slavery, and established universal freedom. Still,
legislation may be necessary and proper to meet all the various cases and circumstances
to be affected by it, and to prescribe proper modes of redress for its
violation in letter or spirit. And such legislation may be primary and direct
in its character; for the amendment is not a mere prohibition of State laws
establishing or upholding slavery, but an absolute declaration that slavery or
involuntary servitude shall not exist in any part of the
It is true, that slavery cannot exist without law, any more than property in
lands and goods can exist without law: and, therefore, the Thirteenth Amendment
may be regarded as nullifying all State laws which establish or uphold slavery.
But it has a reflex character also, establishing and decreeing universal civil
and political freedom throughout the United States; and it is assumed, that the
power vested in Congress to enforce the article by appropriate legislation,
clothes Congress with [***34] power to pass all laws necessary and
proper for abolishing all badges and incidents of slavery in the United States:
and upon this assumption it is claimed, that this is sufficient authority for
declaring by law that all persons shall have equal accommodations and
privileges in all inns, public conveyances, and places of amusement; the
argument being, that the denial of such equal accommodations and privileges is,
in itself, a subjection to a species of servitude within the meaning of the
amendment. Conceding the major proposition to be true, that [*21]
Congress has a right to enact all necessary and proper laws for the obliteration
and prevention of slavery with all its badges and incidents, is the minor
proposition also true, that the denial to any person of admission to the
accommodations and privileges of an inn, a public conveyance, or a theatre,
does subject that person to any form of servitude, or tend to fasten upon him
any badge of slavery? If it does not, then power to pass the law is not found
in the Thirteenth Amendment.
In a very able and learned presentation of the cognate question as to the
extent of the rights, privileges and immunities of citizens which cannot
[***35] rightfully be abridged by state laws under the Fourteenth
Amendment, made in a former case, a long list of burdens and disabilities of a
servile character, incident to feudal vassalage in France, and which were
abolished by the decrees of the National Assembly, was presented for the
purpose of showing that all inequalities and observances exacted by one man
from another were servitudes, or badges of slavery, which a great nation, in
its effort to establish universal liberty, made haste to wipe out and destroy.
But these were servitudes imposed by the old law, or by long custom, which had
[**29] the force of law, and exacted by one man from another
without the latter's consent. Should any such servitudes be imposed by a state
law, there can be no doubt that the law would be repugnant to the Fourteenth,
no less than to the Thirteenth Amendment; nor any greater doubt that Congress
has adequate power to forbid any such servitude from being exacted.
But is there any similarity between such servitudes and a denial by the owner
of an inn, a public conveyance, or a theatre, of its accommodations and
privileges to an individual, even though the denial be founded on the race
[***36] or color of that individual? Where does any slavery or
servitude, or badge of either, arise from such an act of denial? Whether it
might not be a denial of a right which, if sanctioned by the state law, would
be obnoxious to the prohibitions of the Fourteenth Amendment, is another question.
But what has it to do with the question of slavery?
It may be that by the Black Code (as it was called), in the times when slavery
prevailed, the proprietors of inns and public [*22] conveyances
were forbidden to receive persons of the African race, because it might assist
slaves to escape from the control of their masters. This was merely a means of
preventing such escapes, and was no part of the servitude itself. A law of that
kind could not have any such object now, however justly it might be demed an
invasion of the party's legal right as a citizen, and amenable to the
prohibitions of the Fourteenth Amendment.
The long existence of African slavery in this country gave us very distinct
notions of what it was, and what were its necessary incidents. Compulsory
service of the slave for the benefit of the master, restraint of his movements
except by the master's will, disability to [***37] hold property,
to make contracts, to have a standing in court, to be a witness against a white
person, and such like burdens and incapacities, were the inseparable incidents
of the institution. Severer punishments for crimes were imposed on the slave
than on free persons guilty of the same offences. Congress, as we have seen, by
the Civil Rights Bill of 1866, passed in view of the Thirteenth Amendment,
before the Fourteenth was adopted, undertook to wipe out these burdens and
disabilities, the necessary incidents of slavery, constituting its substance
and visible form; and to secure to all citizens of every race and color, and
without regard to previous servitude, those fundamental rights which are the
essence of civil freedom, namely, the same right to make and enforce contracts,
to sue, be parties, give evidence, and to inherit, purchase, lease, sell and convey
propertty, as is enjoyed by white citizens. Whether this legislation was fully
authorized by the Thirteenth Amendment alone, without the support which it
afterward received from the Fourteenth Amendment, after the adoption of which
it was re-enacted with some additions, it is not necessary to inquire. It is
referred to [***38] for the purpose of showing that at that
[**30] time (in 1866) Congress did not assume, under the authority
given by the Thirteenth Amendment, to adjust what may be called the social
rights of men and races in the community; but only to declare and vindicate
those fundamental rights which appertain to the essence of citizenship, and the
enjoyment or deprivation of which constitutes the essential distinction between
freedom and slavery.
[*23] We must not forget that the province and scope of the
Thirteenth and Fourteenth amendments are different; the former simply abolished
slavery: the latter prohibited the States from abridging the privileges or
immunities of citizens of the United States; from depriving them of life,
liberty, or property without due process of law, and from denying to any the
equal protection of the laws. The amendments are different, and the powers of
Congress under them are different. What Congress has power to do under one, it
may not have power to do under the other. Under the Thirteenth Amendment, it
has only to do with slavery and its incidents. Under the Fourteenth Amendment,
it has power to counteract and render nugatory all State laws and proceedings [***39]
which have the effect to abridge any of the privileges or immunities of
citizens of the United States, or to deprive them of life, liberty or property
without due process of law, or to deny to any of them the equal protection of
the laws. Under the Thirteenth Amendment, the legislation, so far as necessary
or proper to eradicate all forms and incidents of slavery and involuntary
servitude, may be direct and primary, operating upon the acts of individuals,
whether sanctioned by State legislation or not; under the Fourteenth, as we
have already shown, it must necessarily be, and can only be, corrective in its
character, addressed to counteract and afford relief against State regulations
or proceedings.
The only question under the present head, therefore, is, whether the refusal to
any persons of the accommodations of an inn, or a public conveyance, or a place
of public amusement, by an individual, and without any sanction or support from
any State law or regulation, does inflict upon such persons any manner of
servitude, or form of slavery, as those terms are understood in this country?
Many wrongs may be obnoxious to the prohibitions of the Fourteenth Amendment
which are not, in [***40] any just sense, incidents or elements of
slavery. Such, for example, would be the taking of private property without due
process of law; or allowing persons who have committed certain crimes (horse
stealing, for example) to be seized and hung by the posse comitatus without
regular trial; or denying to any person, or class of persons, the right to
pursue any peaceful [*24] avocations allowed to others. What is
called class legislation would belong to this category, and would be obnoxious
to the prohibitions of the Fourteenth Amendment, but would not necessarily be so
to the Thirteenth, when not involving the idea of any subjection of one man to
another. The Thirteenth Amendment has respect, not to distinctions of race, or
[**31] class, or color, but to slavery. The Fourteenth Amendment
extends its protection to races and classes, and prohibits any State
legislation which has the effect of denying to any race or class, or to any
individual, the equal protection of the laws.
Now, conceding, for the sake of the argument, that the admission to an inn, a
public conveyance, or a place of public amusement, on equal terms with all
other citizens, is the right of every man and [***41] all classes
of men, is it any more than one of those rights which the states by the
Fourteenth Amendment are forbidden to deny to any person? And is the
Constitution violated until the denial of the right has some State sanction or
authority? Can the act of a mere individual, the owner of the inn, the public
conveyance or place of amusement, refusing the accommodation, be justly
regarded as imposing any badge of slavery or servitude upon the applicant, or
only as inflicting an ordinary civil injury, properly cognizable by the laws of
the State, and presumably subject to redress by those laws until the contrary
appears?
After giving to these questions all the consideration which their importance
demands, we are forced to the conclusion that such an act of refusal has
nothing to do with slavery or involuntary servitude, and that if it is
violative of any right of the party, his redress is to be sought under the laws
of the State; or if those laws are adverse to his rights and do not protect
him, his remedy will be found in the corrective legislation which Congress has
adopted, or may adopt, for counteracting the effect of State laws, or State action,
prohibited by the [***42] Fourteenth Amendment. It would be running
the slavery argument into the ground 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 [*25] other
matters of intercourse or business. Innkeepers and public carriers, by the laws
of all the States, so far as we are aware, are bound, to the extent of their
facilities, to furnish proper accommodation to all unobjectionable persons who
in good faith apply for them. If the laws themselves make any unjust
discrimination, amenable to the prohibitions of the Fourteenth Amendment,
Congress has full power to afford a remedy under that amendment and in
accordance with it.
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 [***43] rights are protected. There were thousands of
free ccolored people in this country before the abolition of slavery, enjoying
all the essential rights of life, liberty and property the same as white
citizens; yet no one, at [**32] that time, thought that it was any
invasion of his personal status as a freeman because he was not addmitted to
all the privileges enjoyed by white citizens, or because he was subjected to
discriminations in the enjoyment of accommodations in inns, public conveyances
and places of amusement. Mere discriminations on account of race or color were
not regarded as badges of slavery. If, since that time, the enjoyment of equal
rights in all these respects has become established by constitutional
enactment, it is not by force of the Thirteenth Amendment (which merely
abolishes slavery), but by force of the Thirteenth and Fifteenth Amendments.
On the whole we are of opinion, that no countenance of authority for the
passage of the law in question can be found in either the Thirteenth or
Fourteenth Amendment of the Constitution; and no other ground of authority for
its passage being suggested, it must necessarily be declared void, at least so
far as its operation [***44] in the several States is concerned.
This conclusion disposes of the cases now under consideration. In the cases of
the
And it is so ordered.
DISSENTBY: HARLAN
DISSENT: MR. JUSTICE [**33] HARLAN dissenting.
The opinion in these cases proceeds, it seems to me, upon grounds entirely too
narrow and artificial. I cannot resist the conclusion that the substance and
spirit of the recent amendments of the Constitution have been sacrificed by a
subtle and ingenious verbal criticism. "It is not the words of the law but
the internal sense of it that makes the law: the letter of the law is the body;
the sense and reason of the law is the soul." Constitutional provisions,
adopted in the interest of liberty, and for [***45] the purpose of
securing, through national legislation, if need be, rights inhering in a state
of freedom, and belonging to American citizenship, have been so construed as to
defeat the ends the people desired to accomplish, which they attempted to
accomplish, and which they supposed they had accomplished by changes in their
fundamental law. By this I do not mean that the determination of these cases
should have been materially controlled by considerations of mere expediency or
policy. I mean only, in this form, to express an earnest conviction that the
court has departed from the familiar rule requiring, in the interpretation of
constitutional provisions, that full effect be given to the intent with which
they were adopted.
The purpose of the first section of the act of Congress of March 1, 1875, was
to prevent race discrimination in respect of the accommodations and facilities
of inns, public conveyances, and places of public amusement.It does not assume
to define the general conditions and limitations under which inns, public
conveyances, and places of public amusement may be conducted, but only declares
that such conditions and limitations, whatever they may be, shall not be
[***46] applied so as to work a [*27] discrimination
solely because of race, color, ir previous condition of servitude. The second
section provides a penalty against any one denying, or aiding or inciting the
denial, to any citizen, of that equality of right given by the first section,
except for reasons by law applicable to citizens of every race or color and
regardless of any previous condition of servitude.
There seems to be no substantial difference between my brethren and myself as
to the purpose of Congress; for, they say that the essence of the law is, not
to declare broadly that all persons shall be entitled to the full and equal
enjoyment of the accommodations, advantages, facilities, and privileges of
inns, public conveyances, and theatres; but that such enjoyment shall not be
subject to conditions applicable only to citizens of a particular race or
color, or who had been in a previous condition of servitude. The effect of the
statute, the court says, is, that colored citizens, whether formerly slaves or
not, and citizens of other races, shall have the same accommodations and
privileges in all inns, public conveyances, and places of amusement as are
enjoyed by [***47] white persons; and vice versa.
The court adjudges, I think erroneously, that Congress is without power, under
either the Thirteenth or Fourteenth Amendment, to establish such regulations,
and that the first and second sections of the statute are, in all their parts,
unconstitutional and void.
Whether the legislative department of the government has transcended the limits
of its constitutional powers, "is at all times," said this court in
Fletcher v. Peck, 6 Cr. 128, "a question of much delicacy, which ought
seldom, if ever, to be decided in the affirmative, in a doubtful case. . . .
The opposition between the Constitution and the law should be such that the
judge feels a clear and strong conviction of their incompatibility with each
other." More recently in Sinking Fund Cases, 99 U.S., 718, we said:
"It is our duty when required in the regular course of judicial
proceedings, to declare an act of Congress void if not within the legislative
power of the United States, but this declaration should never be made except in
a clear case. Every possible presumption is [*28] in favor of the
validity of a statute, and this continues until the contrary is shown beyond a
rational doubt. [***48] One branch of the government cannot
encroach on the domain of another without danger. The safety of our
institutions depends in no small degree on a strict observance of this salutary
rule."
[**34] Before considering the language and scope of these
amendments it will be proper to recall the relations subsisting, prior to their
adoption, between the national government and the institution of slavery, as
indicated by the provisions of the Constitution, the legislation of Congress,
and the decisions of this court. In this mode we may obtain keys with which to
open the mind of the people, and discover the thought intended to be expressed.
In section 2 of article IV. of the Constitution it was provided that "no
person held to oservice or labor in one State, under the laws thereof, escaping
into another, shall, in consequence of any law or regulation therein, be
discharged from such service or labor, but shall be delivered up on claim of
the party to whom such service or labor may be due." Under the authority
of this clause Congress passed the Fugitive Slave Law of 1793, establishing a
mode for the recovery of fugitive slaves, and prescribing a penalty against any
person who should [***49] knowingly and willingly obstruct or
hinder the master, his agent, or attorney, in seizing, arresting, and
recovering the fugitive, or who should rescue the fugitive from him, or who
should harbor or conceal the slave after notice that he was a fugitive.
In Prigg v.
That a clause of the Constitution conferring a right should not be so construed
as to make it shadowy, or unsubstantial, or leave the citizen without a
remedial power adequate for its protection, when another construction equally
accordant with the words and the sense in which they were used, would enforce
and protect the right granted;
That Congress is not restricted to legislation for the execution
[*29] of its expressly granted powers; but, for the protection of
rights guaranteed by the Constitution, may employ such means, not prohibited,
as are necessary and proper, or such as are appropriate, to attain the ends
proposed;
That the Constitution recognized the master's right of property in his fugitive
[***50] slave, and, as incidental thereto, the right of seizing and
recovering him, regardless of any State law, or regulation, or local custom
whatsoever; and,
That the right of the master to have his slave, thus escaping, delivered up on
claim, being guaranteed by the Constitution, the fair implication was that the
national government was clothed with appropriate authority and functions to
enforce it.
The court said: "The fundamental principle, applicable to all cases of
this sort, would seem to be that when the end is required the means are given,
and when the duty is enjoined the ability to perform it is contemplated to
exist on the part of the functionary to whom it is entrusted." Again:
"It would be a strange anomaly and forced construction to suppose that the
national government meant to rely for the due fulfilment of its own
[**35] proper duties, and the rights which it intended to secure,
upon State legislation, and not upon that of the
The act of [***51] 1793 was, upon these grounds, adjudged to be a
constitutional exercise of the powers of Congress.
It is to be observed from the report of Priggs' case that Pennsylvania, by her
attorney-general, pressed the argument that the obligation to surrender
fugitive slaves was on the States and for the States, subject to the
restriction that they should not pass laws or establish regulations liberating
such fugitives; that the Constitution did not take from the States the right to
determine the status of all persons within their respective jurisdictions; that
it was for the State in which the alleged fugitive was found to determine,
through her courts or in such modes as she prescribed, whether the person
arrested was, in fact, a freeman or a fugitive salve; that the sole power
[*30] of the general government in the premises was, by judicial instrumentality,
to restrain and correct, not to forbid and prevent in the absence of hostile
State action; and that, for the general government to assume primary authority
to legislate on the subject of fugitive slaves, to the exclusion of the States,
would be a dangerous encroachment on State sovereignty. But to such suggestions
this court turned [***52] a deaf ear, and adjudged that primary
legislation by Congress to enforce the master's right was authorized by the
Constitution.
We next come to the Fugitive Slave Act of 1850, the constitutionality of which
rested, as did that of 1793, solely upon the implied power of Congress to
enforce the master's rights. The provisions of that act were far in advance of
previous legislation. They placed at the disposal of the master seeking to
recover his fugitive slave, substantially the whole power of the nation. It
invested commissioners, appointed under the act, with power to summon the posse
comitatus for the enforcement of its provisions, and commanded all good
citizens to assist in its prompt and efficient execution whenever their
services were required as part of the posse comitatus. Without going into the
details of that act, it is sufficient to say that Congress omitted from it
nothing which the utmost ingenuity could suggest as essential to the successful
enforcement of the master's claim to recover his fugitive slave. And this
court, in Ableman v. Booth, 21 How. 506, adjudged it to be "in all of its
provisions fully authorized by the Constitution of the
The only other case, prior to the adoption of the recent amendments, to which
reference will be made, is that of Dred Scott v. Sanford, 19 How. 399. That
case was instituted in a circuit court of the
In determining that question the court instituted an inquiry as to who were
citizens of the several States at the adoption of the Constitution, and who, at
that time, were recognized as the people whose rights and liberties had been
violated by the British government. The result [***54] was a
declaration, by this court, speaking by Chief Justice Taney, that the
legislation and histories of the times, and the language used in the
Declaration of Independence, showed "that neither the class of persons who
had been imported as slaves, nor their descendants, whether they had become
free or not, were then acknowledged as a part of the people, nor intended to be
included in the general words used in that instrument;" that "they
had for more than a century before been regarded as beings of an inferior race,
and altogether unfit to associate with the white race, either in social or
political relations, and so far inferior that they had no rights which the
white man was bound to respect, and that the negro might justly and lawfully be
reduced to slavery for his benefit;" that he was "bought and sold,
and treated as an ordinary article of merchandise and traffic, whenever a
profit could be made by it;" and, that "this opinion was at that time
fixed and universal in the civilized portion of the white race. It was regarded
as an axiom in morals as well as in politics, which no one thought of
disputing, or supposed to be open to dispute; and men in every grade and
position in [***55] society daily and habitually acted upon it in
their private pursuits, as well as in matters of public concern, without for a
moment doubting the correctness of this opinion."
The judgment of the court was that the words "people of the United
States" and "citizens" meant the same thing, both describing
"the political body who, according to our republican institutions, form
the sovereignty and hold the power and conduct the government through their
representatives;" that "they are what we familiarly call the
'sovereign people,' and [*32] every citizen is one of this people
and a constitutent member of this sovereignty;" but, that the class of
persons described in the plea in abatement did not compose a portion of this
people, were not "included, and were not intended to be included, under
the word 'citizens' in the Constitution;" that, therefore, they could
"claim none of the rights and privileges which that instrument provides
for and secures to citizens of the United States;" that, "on the
contrary, they were at that time considered as a subordinate and inferior class
of beings, who had been subjugated by the [**37] dominant race,
and, whether emancipated or not, yet remained [***56] subject to
their authority, and had no rights or privileges but such as those who held the
power and the government might choose to grant them."
Such were the relations which formerly existed between the government, whether
national or state, and the descendants, whether free or in bondage, of those of
African blood, who had been imported into this country and sold as slaves.
The first section of the Thirteenth Amendment provides that "neither
slavery nor involuntary servitude, except as a punishment for crime, whereof
the party shall have been duly convicted, shall exist within the
The terms of the Thirteenth Amendment are absolute and universal. They embrace
every race which then was, or might thereafter be, within the
These are the circumstances under which the Thirteenth Amendment was proposed
for adoption. They are now recalled only that we may better understand what was
in the minds of the people when that amendment was considered, and what were
the mischiefs to be remedied and the grievances to be [***59]
redressed by its adoption.
We have seen that the power of Congress, by legislation, to enforce the
master's right to have his slave delivered up on claim was implied from the recognition
of that right in the national Constitution. But the power conferred by the
Thirteenth Amendment does not rest upon implication or [*34]
inference. Those who framed it were not ignorant of the discussion, covering
many years of our country's history, as to the constitutional power of Congress
to enact the Fugitive Slave Laws of 1793 and 1850. When, therefore, it was
determined, by a change in the fundamental law, to uproot the institution of
slavery wherever it existed in the land, and to establish universal freedom,
there was a fixed purpose to place the authority of Congress in the premises
beyond the possibility of a doubt. Therefore, ex industria, power to enforce
the Thirteenth Amendment, by appropriate legislation, was expressly granted. Legislation
for that purpose, my brethren concede, may be direct and primary. But to what
specific ends may it be directed? This court has uniformly held that the
national government has the power, whether expressly given or not, to secure
and protect [***60] rights conferred or guaranteed by the
Constitution.
The Thirteenth Amendment, it is conceded, did something more than to prohibit
slavery as an institution, resting upon distinctions of race, and upheld by
positive law. My brethren admit that it established and decreed universal civil
freedom throughout the
That there are burdens and disabilities which constitute badges of slavery and
servitude, and that the power to enforce by appropriate legislation the
Thirteenth Amendment may be exerted by legislation of a direct and primary
character, for the eradication, not simply of the institution, but of its
[***62] badges and incidents, are propositions which ought to be
deemed indisputable. They lie at the foundation of the Civil Rights Act of 1866.
Whether that act was authorized by the Thirteenth Amendment alone, without the
support which it subsequently received from the Fourteenth Amendment, after the
adoption of which it was re-enacted with some additions, my brethren do not
consider it necessary to inquire. But I submit, with all respect to them, that
its constitutionality is conclusively shown by their opinion. They admit, as I
have said, that the Thirteenth Amendment established freedom; that there are
burdens and disabilities, the necessary incidents of slavery, which constitute
its substance and visible form; that Congress, by the act of 1866, passed in
view of the Thirteenth Amendment, before the Fourteenth was adopted, undertook
to remove certain burdens and disabilities, the necessary incidents of slavery,
and to secure to all citizens of every race and color, and without regard to
previous servitude, those fundamental rights which are the essence of civil
freedom, namely, the same right to make and enfore contracts, to sue, be
parties, give evidence, and to inherit, purchase, [***63] lease,
sell, and convey property as is enjoyed by white citizens; that under the
Thirteenth Amendment, Congress has to do with slavery and [*36] its
incidents; and that legislation, so far as necessary or proper to eradicate all
forms and incidents of slavery and involuntary servitude, may be direct and
primary, operating upon the acts of individuals, whether sanctioned by State
legislation or not. These propositions being conceded, it is impossible, as it
seems to me, to question the constitutional validity of the Civil Rights Act of
1866. I do not contend that the Thirteenth Amendment invests Congress with
authority, by legislation, to define and regulate the entire body of the civil
rights which citizens enjoy, or may enjoy, in the seeveral States.But I
[**40] hold that since slavery, as the court has repeatedly
declared, Slaughter-house Cases, 16 Wall. 36; Strauder v. West Virginia, 100
U.S. 303, was the moving or principal cause of the adoption of that amendment,
and since that institution rested wholly upon the inferiority, as a race, of
those held in bondage, their freedom necessarily involved immunity from, and
protection against, all discrimination against [***64] them,
because of their race, in respect of such civil rights as belong to freemen of
other races. Congress, therefore, under its express power to enforce that
amendment, by appropriate legislation, may enact laws to protect that people
against the deprivation, because of their race, of any civil rights granted to
other freemen in the same State; and such legislation may be of a direct and
primary character, operating upon States, their officers and agents, and, also,
upon, at least, such individuals and corporations as exercise public functions
and wield power and authority under the State.
To test the correctness of this position, let us suppose that, prior to the
adoption of the Fourteenth Amendment, a State had passed a statute denying to
freemen of African descent, resident within its limits, the same right which
was accorded to white persons, of making and enforcing contracts, and of
inheriting, purchasing, leasing, selling and conveying property; or a statute
subjecting colored people to severer punishment for particular offences than
was prescribed for white persons, or excluding that race from the benefit of
the laws exempting homesteads from execution. Recall the legislation
[***65] of 1865-6 in some of the States, of which this court, in
the Slaughter-House [*37] Cases, said, that it imposed upon the
colored race onerous disabilities and burdens; curtailed their rights in the
pursuit of life, liberty and property to such an extent that their freedom was
of little value; forbade them to appear in the towns in any other character
than menial servants; required them to reside on and cultivate the soil,
without the right to purchase or own it; excluded them from many occupations of
gain; and denied them the privilege of giving testimony in the courts where a
white man was a party. 16 Wall. 57. Can there be any doubt that all such
enactments might have been reached by direct legislation upon the part of
Congress under its express power to enforce the Thirteenth Amendment? Would any
court have hesitated to declare that such legislation imposed badges of
servitude in conflict with the civil freedom ordained by that amendment? That
it would have been also in conflict with the Fourteenth Amendment, because
inconsistent with the fundamental rights of American citizenship, does not
prove that it would have been consistent with the Thirteenth Amendment.
What has [***66] been said is sufficient to show that the power of
Congress under the Thirteenth Amendment is not necessarily restricted to
legislation against slavery as an institution upheld by positive law, but may
be exerted to the extent, at least, of protecting the liberated race against
discrimination, in respect of legal rights belonging to freemen, where such
discrimination is based upon race.
[**41] It remains now to inquire what are the legal rights of
colored persons in respect of the accommodations, privileges and facilities of
public conveyances, inns and places of public amusement?
First, as to public conveyances on land and water. In New Jersey Steam
Navigation Co. v. Merchants' Bank, 6 How. 344, this court, speaking by Mr.
Justice Nelson, said that a common carrier is "in the exercise of a sort
of public office, and has public duties to perform, from which he should not be
permitted to exonerate himself without the assent of the parties
concerned." To the same effect is Munn v.
"The establishment of that great thoroughfare is regarded as a public
work, established by public authority, intended for the public use and benefit,
the use of which is secured to the whole community, and constitutes, therefore,
like a canal, turnpike, or highway, a public easement. . . . It is true that
the real and personal property, necessary to the establishment and management
of the railroad, is vested in the corporation; but it is in trust for the
public." In Erie, Etc., R.R. Co. v. Casey, 26 Penn. St. 287, thecourt,
referring to an act repealing the charter of a railroad, and under which the
State took possession of the road, said: "It is a public highway, solemnly
devoted to public use. When the lands were taken it was for such use, or they
could not have been taken at all. . . . Railroads established [*39]
upon land taken by the right of eminent domain by authority of the
commonwealth, created by her laws as thoroughfares for commerce, are her
highways. [***69] No corporation has property in them, though it
may have franchises annexed to and exercisable within them."
[**42] In many courts it has been held that because of the public
interest in such a corporation the land of a railroad company cannot be levied
on and sold under execution by a creditor. The sum of the adjudged cases is
that a railroad corporation is a governmental agency, created primarily for public
purposes, and subject to be controlled for the public benefit. Upon this ground
the State, when unfettered by contract, may regulate, in its discretion, the
rates of fares of passengers and freight. And upon this ground, too, the State
may regulate the entire management of railroads in all matters affecting the
convenience and safety of the public; as, for example, by regulating speed,
compelling stops of prescribed length at stations, and prohibiting
discriminations and favoritism. If the corporation neglect or refuse to
discharge its duties to the public, it may be coerced to do so by appropriate
proceedings in the name or in behalf of the State.
Such being the relations these corporations hold to the public, it would seem
that the right of a colored person to use [***70] an improved
public highway, upon the terms accorded to freemen of other races, is as
fundamental, in the state of freedom established in this country, as are any of
the rights which my brethern concede to be so far fundamental as to be deemed
the essence of civil freedom. "Personal liberty consists," says
Blackstone, "in the power of locomotion, of changing situation, or
removing one's person to whatever places one's own inclination may direct,
without restraint, unless by due course of law." But of what value is this
right of locomotion, if it may be clogged by such burdens as Congress intended
by the act of 1875 to remove? They are burdens which lay at the very foundation
of the institution of slavery as it once existed. They are not to be sustained,
except upon the assumption that there is, in this land of universal liberty, a
class which may still be discriminated against, even in respect of rights of a
character [*40] so necessary and supreme, that, deprived of their
enjoyment in common with others, a freeman is not only branded as one inferior
and infected, but, in the competitions of life, is robbed of some of the most
essential means of existence; and all this solely [***71] because
they belong to a particular race which the nation has liberated. The Thirteenth
Amendment alone obliterated the race line, so far as all rights fundamental in
a state of freedom are concerned.
Second, as to inns. The same general observations which have been made as to
railroads are applicable to inns. The word 'inn' has a technical legal
signification. It means, in the act of 1875, just what it meant at common law.
A mere private boarding-house is not an inn, nor is its keeper subject to the
responsibilities, or entitled to the privileges of a common innkeeper. "To
constitute one an innkeeper, within the legal force of that term, he must keep
a house of entertainment or lodging for all travellers or wayfarers who might
choose to accept the same, being of good character or conduct." Redfield
on Carriers, etc., § 575. Says Judge Story:
" [**43] An innkeeper may be defined to be the keeper of a
common inn for the lodging and entertainment of travellers and passengers,
their horses and attendants. An innkeeper is bound to take in all travellers
and wayfaring persons, and to entertain them, if he can accommodate them, for a
reasonable compensation; and he must guard [***72] their goods with
proper diligence. . . . If an innkeeper improperly refuses to receive or
provide for a guest, he is liable to be indicted therefor. . . . They (carriers
of passengers) are no more at liberty to refuse a passenger, if they have
sufficient room and accommodations, than an innkeeper is to refuse suitable
room and accommodations to a guest." Story on Bailments, §§ 475-6.
In Rex v. Ivens, 7 Carrington & Payne, 213, 32 E.C.L. 495, the court,
speaking by Mr. Justice Coleridge, said:
"An indictment lies against an innkeeper who refuses to receive a guest,
he having at the time room in his house; and either the price of the guest's
entertainment being tendered to him, or such circumstances occurring as will
dispense with that [*41] tender. This law is founded in good sense.
The innkeeper is not to select his guests. He has no right to say to one, you shall
come to my inn, and to another you shall not, as every one coming and
conducting himself in a proper manner has a right to be received; and for this
purpose innkeepers are a sort of public servants, they having in return a kind
of privilege of entertaining travellers and supplying them with what they
want." [***73]
These authorities are sufficient to show that a keeper of an inn is in the
exercise of a quasi public employment. The law gives him special privileges and
he is charged with certain duties and responsibilities to the public. The
public nature of his employment forbids him from discriminating against any
person asking admission as a guest on account of the race or color of that
person.
Third. As to places of public amusement. It may be argued that the managers of
such places have no duties to perform with which the public are, in any legal
sense, concerned, or with which the public have any right to interfere; and,
that the exclusion of a black man from a place of public amusement, on account
of his race, or the denial to him, on that ground, of equal accommodations at
such places, violates no legal right for the vindiction of which he may invoke
the aid of the courts. My answer is, that places of public amusement, within
the meaning of the act of 1875, are such as are established and maintained
under direct license of the law. The authority to establish and maintain them
comes from the public. The colored race is a part of that public. The local
government granting the license [***74] represents them as well as
all other races within its jurisdiction. A license from the public to establish
a place of public amusement, imports, in law, equality of right, at such
places, among all the members of that public. This must be so, unless it be --
which I deny -- that the common municipal government of all the people may, in
the exertion of its powers, conferred for the benefit of all, discriminate or
authorize discrimination against a particular race, solely because of its
former condition of servitude.
I also submit, whether it can be said -- in view of the doctrines of this court
as announced in Munn v. State of Illinois, [*42] 94 U.S. 113, and
reaffirmed [**44] in Peik v. Chicago & N.W. Railway Co., 94
U.S. 164 -- that the management of places of public amusement is a purely
private matter, with which government has no rightful concern? In the Munn case
the question was whether the State of
"Property does become clothed with a public interest when used in a manner
to make it of public consequence and affect the community at large. When,
therefore, one devotes his property to a use in which the public has an
interest, he, in effect, grants to the public an interest in that use, and must
submit to be controlled by the public for the common good, to the extent of the
interest he has thus created. He may withdraw his grant by discontinuing the
use, but, so long as he maintains the use, he must submit to the control."
The doctrines of Munn v. Illinois have never been modified by this court, and I
am justified, upon the authority of that case, in saying that places of public
amusement, conducted under the authority of the law, are clothed with a public interest,
because used in a manner to make them of public consequence and to affect the
community at large. The law may therefore regulate, to some extent, the mode in
which they shall be conducted, and, consequently, the public have rights in
respect of such places, which may be vindicated by the law. It is consequently
not a matter [***76] purely of private concern.
Congress has not, in these matters, entered the domain of State control and
supervision. It does not, as I have said, assume to prescribe the general
conditions and limitations under which inns, public conveyances, and places of
public amusement, shall be conducted or managed.It simply declares, in effect,
that since the nation has established universal freedom in this country, for
all time, there shall be no discrimination, based merely upon race or color, in
respect of the accommodations [*43] and advantages of public
conveyances, inns, and places of public amusement.
I am of the opinion that such discrimination practised by corporations and
individuals in the exercise of their public or quasi-public functions is a
badge of servitude the imposition of which Congress may prevent under its
power, by appropriate legislation, to enforce the Thirteenth Amendment; and,
consequently, without reference to its enlarged power under the Fourteenth
Amendment, the act of March 1, 1875, is not, in my judgment, repugnant to the
Constitution.
It remains now to consider these cases with reference to the power Congress has
possessed since the adoption of the [***77] Fourteenth Amendment.
Much that has been said as to the power of Congress under the Thirteenth
Amendment is applicable to this branch of the discussion, and will not be
repeated.
Before the adoption of the recent amendments, it had become, as we have seen,
the established doctrine of this court that negroes, whose ancestors had been
imported and sold as slaves, could not become citizens of a State, or even of
the United States, with the rights [**45] and privileges guaranteed
to citizens by the national Constitution; further, that one might have all the
rights and privileges of a citizen of a State without being a citizen in the
sense in which that word was used in the national Constitution, and without
being entitled to the privileges and immunities of citizens of the several
States. Still, further, between the adoption of the Thirteenth Amendment and
the proposal by Congress of the Fourteenth Amendment, on June 16, 1866, the
statute books of several of the States, as we have seen, had become loaded down
with enactments which, under the guise of Apprentice, Vagrant, and Contract
regulations, sought to keep the colored race in a condition, practically, of
servitude. It was [***78] openly announced that whatever might be
the rights which persons of that race had, as freemen, under the guarantees of
the national Constitution, they could not become citizens of a State, with the
privileges belonging to citizens, except by the consent of such State;
consequently, that their civil rights, as citizens of the State, depended
entirely upon State legislation.To meet this new peril to the black race, that
the [*44] purposes of the nation might not be doubted or defeated,
and by way of further enlargement of the power of Congress, the Fourteenth Amendment
was proposed for adoption.
Remembering that this court, in the Slaughter-House Cases, declared that the
one pervading purpose found in all the recent amendments, lying at the
foundation of each, and without which none of them would have been suggested --
was "the freedom of the slave race, the security and firm establishment of
that freedom, and the protection of the newly-made freeman and citizen from the
oppression of those who had formerly exercised unlimited dominion over
him" -- that each amendment was addressed primarily to the grievances of
that race -- let us proceed to consider the language of the Fourteenth
[***79] Amendment.
Its first and fifth sections are in these words:
"SEC. 1. All persons born or naturalized in the
* * *
"SEC. 5. That Congress shall have power to enforce, by appropriate
legislation, the provisions of this article."
It was adjudged in Strauder v. West Virginia, 100 U.S. 303, and Ex parte
Virginia, 100 U.S. 339, and my brethren concede, that positive rights and
privileges were intended to be secured, and are in fact secured, by the
Fourteenth Amendment.
But when, under what circumstances, and to what extent, may Congress, by means
of legislation, exert its power to enforce the provisions of this amendment?
The theory of the opinion of the majority of the court -- the foundation upon
which their reasoning seems [**46] to rest -- is,
[***80] that the general government cannot, in advance of hostile
State laws or hostile State [*45] proceedings, actively interfere
for the protection of any of the rights, privileges, and immunities secured by
the Fourteenth Amendment. It is said that such rights, privileges, and
immunities are secured by way of prohibition against State laws and State
proceedings affecting such rights and privileges, and by power given to
Congress to legislate for the purpose of carrying such prohibition into effect;
also, that congressional legislation must necessarily be predicated upon such
supposed State laws or State proceedings, and be directed to the correction of
their operation and effect.
In illustration of its position, the court refers to the clause of the
Constitution forbidding the passage by a State of any law impairing the
obligation of contracts. That clause does not, I submit, furnish a proper
illustration of the scope and effect of the fifth section of the Fourteenth
Amendment. No express power is given Congress to enforce, by primary direct
legislation, the prohibition upon State laws impairing the obligation of
contracts. Authority is, indeed, conferred to enact [***81] all
necessary and proper laws for carrying into execution the enumerated powers of
Congress and all other powers vested by the Constitution in the government of
the United States or in any department or officer thereof.And, as heretofore
shown, there is also, by necessary implication, power in Congress, by
legislation, to protect a right derived from the national Constitution. But a
prohibition upon a State is not a power in Congress or in the national
government. It is simply a denial of power to the State. And the only mode in
which the inhibition upon State laws impairing the obligation of contracts can
be enforced, is, indirectly, through the courts, in suits where the parties
raise some question as to the constitutional validity of such laws. The
judicial power of the
The assumption that this amendment consists wholly of prohibitions upon State
laws and State proceedings in hostility to its provisions, is unauthorized by
its language. The first clause of the first section -- "All persons born
or naturalized in the United States, and subject to the jurisdiction thereof,
are citizens of the United States, [**47] and of the State wherein
they reside" -- is of a distinctly affirmative character. In its
application to the colored race, previously liberated, it created and granted,
as well citizenship of the
The citizenship thus acquired, by that race, in virtue of an affirmative grant
from the nation, may be protected, not alone by the judicial branch of the
government, but by congressional legislation of a primary direct character;
this, because the power of Congress is not restricted to the enforcement of prohibitions
upon State laws or State action. It is, in terms distinct and positive, to
enforce "the provisions of this article" of amendment; not simply
those of a prohibitive character, but the provisions -- all of the provisions
-- affirmative and prohibitive, of the amendment. It is, therefore, a grave
misconception to suppose that the fifth section of the amendment has reference
exclusively to express prohibitions upon State laws or State action. If any
right was created by that amendment, the [*47] [***84]
grant of power, through appropriate legislation, to enforce its provisions,
authorizes Congress, by means of legislation, operating throughout the entire
Union, to guard, secure, and protect that right.
It is, therefore, an essential inquiry what, if any, right, privilege or
immunity was given, by the nation, to colored persons, when they were made
citizens of the State in which they reside? Did the constitutional grant of
State citizenship to that race, of its own force, invest them with any rights,
privileges and immunities whatever? That they became entitled, upon the
adoption of the Fourteenth Amendment, "to all privileges and immunities of
citizens in the several States," within the meaning of section 2 of
article 4 of the Constitution, no one, I suppose, will for a moment question.
What are the privileges and immunities to which, by that clause of the
Constitution, they became entitled? To this it may be answered, generally, upon
the authority of the adjudged cases, that they are those which are fundamental
in citizenship in a free republican government, such as are "common to the
citizens in the latter States under their constitutions and laws by virtue of
their being citizens." [***85] Of that provision it has been
said, with the approval of this court, that no other one in the Constitution
has tended so strongly to constitute the citizens of the
Although this court has wisely forborne any attempt, by a comprehensive
[**48] definition, to indicate all of the privileges and immunities
to which the citizen of a State is entitled, of right, when within the
jurisdiction of other States, I hazard nothing, in view of former
adjudications, in saying that no State can sustain her denial to colored
citizens of other States, while within her limits, of privileges or immunities,
fundamental in republican citizenship, upon the ground that she accords such
privileges and immunities only to her white citizens and withholds them from
her colored citizens. The colored citizens of other States, within the
jurisdiction of the State, could claim, in virtue of section 2 of article 4 of
the Constitution, every privilege and immunity [*48] which that
State secures to her white citizens. Otherwise, it [***86] would be
in the power of any State, by discriminating class legislation against its own
citizens of a particular race or color, to withhold from citizens of other
States, belonging to that proscribed race, when within her limits, privileges
and immunities of the character regarded by all courts as fundamental in
citizenship; and that, too, when the constitutional guaranty is that the
citizens of each State shall be entitled to "all privileges and immunities
of citizens of the several States." No State may, by discrimination
against a portion of its own citizens of a particular race, in respect of
privileges and immunities fundamental in citizenship, impair the constitutional
right of citizens of other States, of whatever race, to enjoy in that State all
such privileges and immunities as are there accorded to her most favored
citizens. A colored citizen of
But what was secured to colored citizens of the
The language of this court with reference to the Fifteenth Amendment, adds to
the force of [***89] this view. In United States v. Cruikshank, it
was said: "In United States v. Reese, 92 U.S. 214, we held that the
Fifteenth Amendment has invested the citizens of the United States with a new
constitutional right, which is exemption from discrimination in the exercise of
the elective franchise, on account of race, color, or previous condition of
servitude. From this it appears that the right of suffrage is not a necessary
attribute of national citizenship, but that exemption from discrimination in
the exercise of that right on account of race, &c., is. The right to vote
in the States comes from the States; but the right of exemption from the
prohibited discrimination comes from the United States.The first has not been
granted or secured by the Constitution of the United States, but the last has
been."
Here, in language at once clear and forcible, is stated the principle for which
I contend. It can scarcely be claimed that exemption from race discrimination,
in respect of civil rights, against those to whom State citizenship was granted
by the [*50] nation, is any less, for the colored race, a new
constitutional right, derived from and secured by the national Constitution,
[***90] than is exemption from such discrimination in the exercise
of the elective franchise. It cannot be that the latter is an attribute of
national citizenship, while the other is not essential in national citizenship,
or fundamental in State citizenship.
If, then, exemption from discrimination, in respect of civil rights, is a new
constitutional right, secured by the grant of State citizenship to colored
citizens of the United States -- and I do not see how this can now be
questioned -- why may not the nation, by means of its own legislation of a
primary direct character, guard, protect and enforce that right? It is a right
and privilege which the nation conferred. It did not come from the States in
which those colored citizens reside. It has been the established doctrine of
this court during all its history, accepted as essential to the national
supremacy, that Congress, in the absence of a positive delegation of power to
the State legislatures, may, by its own legislation, enforce and protect any
right derived from or created by the national Constitution. It was so declared
in Prigg v.
This court has always given a broad and liberal construction to the
Constitution, so as to enable Congress, by legislation, to [*51]
enforce rights secured by that instrument.The legislation which Congress may
enact, in execution of its power to enforce the provisions of this amendment,
is such [***92] as may be appropriate to protect the right granted.
The word appropriate was undoubtedly used with reference to its meaning, as
established by repeated decision of this court. Under given circumstances, that
which the court characterizes as corrective legislation might be deemed by
Congress appropriate and entirely sufficient. Under other circumstances primary
direct legislation may be required. But it is for Congress, not the judiciary,
to say that legislation is appropriate -- that is -- best adapted to the end to
be attained. The judiciary may not, with safety to our institutions, enter the
domain of legislative discretion, and dictate the means which Congress shall
employ in the exercise of its granted powers. That would be sheer usurpation of
the functions of a co-ordinate department, which, if often repeated, and
permanently acquiesced in, would work a radical change in our system of
government. In United States v. Fisher, 2 Cr. 358, the court said that
"Congress must possess the choice of means, and must be empowered to use
any means which are in fact conducive to the exercise of a power granted by the
Constitution." "The sound construction of the Constitution,"
said [***93] Chief Justice Marshall, "must allow to the
national legislature that discretion, with respect to the means by which the
powers it confers are to be carried into execution, which will enable that body
to perform the high duties assigned to it in the manner most beneficial to the
people. Let the end be legitimate, let it be within the scope of the
Constitution, and all means which are appropriate, which are plainly adapted to
that end, which are not prohibited, but consist with the letter and spirit of
the Constitution, are constitutional." McCulloch v. Maryland, 4 Wh. 421.
Must these rules of construction be now abandoned? Are the powers of the
national legislature to be restrained in proportion as the rights and
privileges, derived from the nation, are valuable? Are constitutional
provisions, enacted to secure the dearest rights of freemen and citizens, to be
subjected to that rule of construction, applicable to private instruments,
[*52] which requires that the words to be interpreted must be taken
most strongly against those who employ them? Or, shall it be remembered that
"a constitution of government, founded by the people for themselves and
their posterity, and for [***94] objects of the most momentous
nature -- for perpetual union, for the establishment of justice, for the
general welfare, and for a [**51] perpetuation of the blessings of
liberty -- necessarily requires that every interpretation of its powers should
have a constant reference to these objects? No interpretation of the words in
which those powers are granted can be a sound one, which narrows down their
ordinary import so as to defeat those objects." 1 Story Const. § 422.
The opinion of the court, as I have said, proceeds upon the ground that the
power of Congress to legislate for the protection of the rights and privileges
secured by the Fourteenth Amendment cannot be brought into activity except with
the view, and as it may become necessary, to correct and annul State laws and
State proceedings in hostility to such rights and privileges. In the absence of
State laws or State action adverse to such rights and privileges, the nation
may not actively interfere for their protection and security, even against
corporations and individuals exercising public or quasi public functions. Such
I understand to be the position of my brethren. If the grant to colored
citizens of the United [***95] States of citizenship in their
respective States, imports exemption from race discrimination, in their States,
in respect of such civil rights as belong to citizenship, then, to hold that
the amendment remits that right to the States for their protection, primarily,
and stays the hands of the nation, until it is assailed by State laws or State
proceedings, is to adjudge that the amendment, so far from enlarging the powers
of Congress -- as we have heretofore said it did -- not only curtails them, but
reverses the policy which the general government has pursued from its very
organization. Such an interpretation of the amendment is a denial to Congress
of the power, by appropriate legislation, to enforce one of its provisions. In
view of the circumstances under which the recent amendments were incorporated into
the Constitution, and especially in view of the peculiar character of the new
[*53] rights they created and secured, it ought not to be presumed
that the general government has abdicated its authority, by national
legislation, direct and primary in its character, to guard and protect
privileges and immunities secured by that instrument. Such an interpretation of
the Constitution [***96] ought not to be accepted if it be possible
to avoid it.Its acceptance would lead to this anomalous result: that whereas,
prior to the amendments, Congress, with the sanction of this court, passed the
most stringent laws -- operating directly and primarily upon States and their
officers and agents, as well as upon individuals -- in vindication of slavery
and the right of the master, it may not now, by legislation of a like primary
and direct character, guard, protect, and secure the freedom established, and
the most essential right of the citizenship granted, by the constitutional
amendments. With all respect for the opinion of others, I insist that the
national legislature may, without transcending the limits of the Constitution,
do for human liberty and the fundamental rights of American citizenship, what
it did, with the sanction of this court, for the protection of slavery and the
rights of the masters of fugitive slaves. If fugitive slave laws, providing
modes and prescribing penalties, whereby the master could seize and recover
[**52] his fugitive slave, were legitimate exercises of an implied
power to protect and enforce a right recognized by the Constitution, why shall
[***97] the hands of Congress be tied, so that -- under an express
power, by appropriate legislation, to enforce a constitutional provision
granting citizenship -- it may not, by means of direct legislation, bring the
whole power of this nation to bear upon States and their officers, and upon
such individuals and corporations exercising public functions as assume to
abridge, impair, or deny rights confessedly secured by the supreme law of the
land?
It does not seem to me that the fact that, by the second clause of the first
section of the Fourteenth Amendment, the States are expressly prohibited from
making or enforcing laws abridging the privileges and immunities of citizens of
the United States, furnishes any sufficient reason for holding or maintaining
that the amendment was intended to deny Congress the power, by general,
primary, and direct legislation, of [*54] protecting citizens of
the several States, being also citizens of the United States, against all
discrimination, in respect of their rights as citizens, which is founded on
race, color, or previous condition of servitude.
Such an interpretation of the amendment is plainly repugnant to its fifth
section, conferring [***98] upon Congress power, by appropriate
legislation, to enforce not merely the provisions containing prohibitions upon
the States, but all of the provisions of the amendment, including the
provisions, express and implied, in the first clause of the first section of the
article granting citizenship. This alone is sufficient for holding that
Congress is not restricted to the enactment of laws adapted to counteract and
redress the operation of State legislation, or the action of State officers, of
the character prohibited by the amendment. It was perfectly well known that the
great danger to the equal enjoyment by citizens of their rights, as citizens,
was to be apprehended not altogether from unfriendly State legislation, but
from the hostile action of corporations and individuals in the States. And it
is to be presumed that it was intended, by that section, to clothe Congress
with power and authority to meet that danger. If the rights intended to be
secured by the act of 1875 are such as belong to the citizen, in common or
equally with other citizens in the same State, then it is not to be denied that
such legislation is peculiarly appropriate to the end which Congress is
authorized [***99] to accomplish, viz., to protect the citizen, in
respect of such rights, against discrimination on account of his race.
Recurring to the specific prohibition in the Fourteenth Amendment upon the
making or enforcing of State laws abridging the privileges of citizens of the
United States, I remark that if, as held in the Slaughter-House Cases, the
privileges here referred to were those which belonged to citizenship of the
United States, as distinguished from those belonging to State citizenship, it
was impossible for any State prior to the adoption of that amendment to have
enforced laws of that character. The judiciary could have annulled all such
legislation under the provision that the Constitution shall be the supreme law
of the land, anything in the constitution or laws of any State to the contrary
notwithstanding. The States were [*55] already under an implied
prohibition not to abridge any privilege or immunity belonging to citizens of
the United [**53] States as such. Consequently, the prohibition
upon State laws in hostitility to rights belonging to citizens of the United
States, was intended -- in view of the introduction into the body of citizens
of a race formerly [***100] denied the essential rights of
citizenship -- only as an express limitation on the powers of the States, and
was not intended to diminish, in the slightest degree, the authority which the
nation has always exercised, of protecting, by means of its own direct
legislation, rights created or secured by the Constitution. Any purpose to
diminish the national authority in respect of privileges derived from the nation
is distinctly negatived by the express grant of power, by legislation, to
enforce every provision of the amendment, including that which, by the grant of
citizenship in the State, secures exemption from race discrimination in respect
of the civil rights of citizens.
It is said that any interpretation of the Fourteenth Amendment different from
that adopted by the majority of the court, would imply that Congress had
authority to enact a municipal code for all the States, covering every matter
affecting the life, liberty, and property of the citizens of the several
States. Not so. Prior to the adoption of that amendment the constitutions of
the several States, without perhaps an exception, secured all persons against
deprivation of life, liberty, or property, otherwise than [***101]
by due process of law, and, in some form, recognized the right of all persons
to the equal protection of the laws. Those rights, therefore, existed before
that amendment was proposed or adopted, and were not created by it. If, by
reason of that fact, it be assumed that protection in these rights of persons
still rests primarily with the States, and that Congress may not interfere
except to enforce, by means of corrective legislation, the prohibitions upon
State laws or State proceedings inconsistent with those rights, it does not at
all follow, that privileges which have been granted by the nation, may not be
protected by primary legislation upon the part of Congress. The personal rights
and immunities recognized in the prohibitive clauses of the amendment were,
prior to its adoption, [*56] under the protection, primarily, of
the States, while rights, created by or derived from the United States, have
always been, and, in the nature of things, should always be, primarily, under
the protection of the general government. Exemption from race discrimination in
respect of the civil rights which are fundamental in citizenship in a
republican government, is, as we have seen, a new [***102] right,
created by the nation, with express power in Congress, by legislation, to
enforce the constitutional provision from which it is derived. If, in some
sense, such race discrimination is, within the letter of the last clause of the
first section, a denial of that equal protection of the laws which is secured
against State denial to all persons, whether citizens or not, it cannot be
possible that a mere prohibition upon such State denial, or a prohibition upon
State laws abridging the privileges and immunities of citizens of the United
States, takes from the nation the power which it has uniformly exercised of
protecting, by direct primary legislation, those privileges and immunities
which existed under the Constitution before the adoption of the Fourteenth
Amendment, or have been created [**54] by that amendment in behalf
of those thereby made citizens of their respective States.
This construction does not in any degree intrench upon the just rights of the
States in the control of their domestic affairs. It simply recognizes the
enlarged powers conferred by the recent amendments upon the general government.
In the view which I take of those amendments, the [***103] States
possess the same authority which they have always had to define and regulate
the civil rights which their own people, in virtue of State citizenship, may
enjoy within their respective limits; except that its exercise is now subject
to the expressly granted power of Congress, by legislation, to enforce the
provisions of such amendments -- a power which necessarily carries with it
authority, by national legislation, to protect and secure the privileges and
immunities which are created by or are derived from those amendments. That
exemption of citizens from discrimination based on race or color, in respect of
civil rights, is one of those privileges or immunities, can no longer be deemed
an open question in this court.
[*57] It was said of the case of Dred Scott v. Sandford, that this
court, there overruled the action of two generations, virtually inserted a new
clause in the Constitution, changed its character, and made a new departure in
the workings of the federal government. I may be permitted to say that if the
recent amendments are so construed that Congress may not, in its own
discretion, and independently of the action or non-action of the States,
provide, by legislation [***104] of a direct character, for the
security of rights created by the national Constitution; if it be adjudged that
the obligation to protect the fundamental privileges and immunities granted by
the Fourteenth Amendment to citizens residing in the several States, rests
primarily, not on the nation, but on the States; if it be further adjudged that
individuals and corporations, exercising public functions, or wielding power
under public authority, may, without liability to direct primary legislation on
the part of Congress, make the race of citizens the ground for denying them
that equality of civil rights which the Constitution ordains as a principle of
republican citizenship; then, not only the foundations upon which the national
supremacy has always securely rested will be materially disturbed, but we shall
enter upon an era of constitutional law, when the rights of freedom and
American citizenship cannot receive from the nation that efficient protection
which heretofore was unhesitatingly accorded to slavery and the rights of the
master.
But if it were conceded that the power of Congress could not be brought into
activity until the rights specified in the act of 1875 had been abridged
[***105] or denied by some State law or State action, I maintain
that the decision of the court is erroneous. There has been adverse State
action within the Fourteenth Amendment as heretofore interpreted by this court.
I allude to Ex parte Virginia, supra. It appears, in that case, that one Cole,
judge of a county court, was charged with the duty, by the laws of Virginia, of
selecting grand and petit jurors. The law of the State did not authorize or
permit him, in making such selections, to discriminate against colored citizens
because of their race. But he was indicted in the federal court, under the act
of 1875, for making such discriminations. [*58] The
attorney-general of Virginia contended before us, that the State had done its
duty, and had not authorized or directed that county judge to do what he was
charged with having done; that the State had not denied to the colored race the
equal protection of the laws; and that consequently the act of Cole must be
deemed his individual act, in contravention of the will of the State. Plausible
as this argument was, it failed to convince this court, and after saying that
the Fourteenth Amendment had reference to the political body denominated
[***106] a State, "by whatever instruments or in whatever modes
that action may be taken," and that a State acts by its legislative,
executive, and judicial authorities, and can act in no other way, we proceeded:
[**55] "The constitutional provision, therefore, must mean
that no agency of the State, or of the officers or agents by whom its powers
are exerted, shall deny to any person within its jurisdiction the equal
protection of the laws. Whoever, by virtue of public position under a State
government, deprives another of property, life, or liberty without due proceess
of law, or denies or takes away the equal protection of the laws, violates the
constitutional inhibition; and, as he acts under the name and for the State,
and is clothed with the State's power, his act is that of the State. This must
be so, or the constitutional prohibition has no meaning. Then the State has
clothed one of its agents with power to annul or evade it. But the
constitutional amendment was ordained for a purpose. It was to secure equal
rights to all persons, and, to insure to all persons the enjoyment of such
rights, power was given to Congress to enforce its provisions by appropriate
legislation. Such [***107] legislation must act upon persons, not
upon the abstract thing denominated a State, but upon the persons who are the
agents of the State, in the denial of the rights which were intended to be
secured." Ex parte Virginia, 100 U.S. 346-7.
In every material sense applicable to the practical enforcement of the
Fourteenth Amendment, railroad corporations, keepers of inns, and managers of
places of public amusement are agents or instrumentalities of the State,
because they are charged with [*59] duties to the public, and are
amenable, in respect of their duties and functions, to governmental regulation.
It seems to me that, within the principle settled in Ex parte Virginia, a
denial, by these instrumentalities of the State, to the citizen, because of his
race, of that equality of civil rights secured to him by law, is a denial by
the State, within the meaning of the Fourteenth Amendment. If it be not, then
that race is left, in respect of the civil rights in question, practically at
the mercy of corporations and individuals wielding power under the States.
But the court says that Congress did not, in the act of 1866, assume, under the
authority given by the Thirteenth Amendment, [***108] to adjust
what may be called the social rights of men and races in the community. I agree
that government has nothing to do with social, as distinguished from
technically legal, rights of individuals. No government ever has brought, or
ever can bring, its people into social intercourse against their wishes.
Whether one person will permit or maintain social relations with another is a
matter with which government has no concern. I agree that if one citizen
chooses not to hold social intercourse with another, he is not and cannot be
made amenable to the law for his conduct in that regard; for even upon grounds
of race, no legal right of a citizen is violated by the refusal of others to
maintain merely social relations with him. What I affirm is that no State, nor
the officers of any State, nor any corporation or individual wielding power
under State authority for the public benefit or the public convenience, can,
consistently either with the freedom established by the fundamental law, or
with that equality of civil rights which now belongs to every citizen,
discriminate against freemen or citizens, in those rights, because of their
race, or because they once labored [***109] under the disabilities
of slavery imposed upon them as a race. The rights which Congress, by the act
of 1875, endeavored to secure and protect are legal, not social rights. The
right, for instance, of a [**56] colored citizen to use the
accommodations of a public highway, upon the same terms as are permitted to
white citizens, is no more a social right than his right, under the law, to use
the public streets of a city or a town, or a turnpike road, or a public market,
or a post office, or his right to sit [*60] in a public building with
others, of whatever race, for the purpose of hearing the political questions of
the day discussed. Scarcely a day passes without our seeing in this court-room
citizens of the white and black races sitting side by side, watching the
progress of our business. It would never occur to any one that the presence of
a colored citizen in a court-house, or court-room, was an invasion of the
social rights of white persons who may frequent such places. And yet, such a
suggestion would be quite as sound in law -- I say it with all respect -- as is
the suggestion that the claim of a colored citizen to use, upon the same terms
as is permitted to white [***110] citizens, the accommodations of
public highways, or public inns, or places of public amusement, established under
the license of the law, is an invasion of the social rights of the white race.
The court, in its opinion, reserves the question whether Congress, in the
exercise of its power to regulate commerce amongst the several States, might or
might not pass a law regulating rights in public conveyances passing from one
State to another. I beg to suggest that that precise question was substantially
presented here in the only one of these cases relating to railroads -- Robinson
and Wife v. Memphis & Charleston Railroad Company. In that case it appears
that Mrs. Robinson, a citizen of Mississippi, purchased a railroad ticket
entitling her to be carried from Grand Junction, Tennessee, to Lynchburg,
Virginia. Might not the act of 1875 be maintained in that case, as applicable at
least to commerce between the States, notwithstanding it does not, upon its
face, profess to have been passed in pursuance of the power of Congress to
regulate commerce? Has it ever been held that the judiciary should overturn a
statute, because the legislative department did not accurately recite therein
[***111] the particular provision of the Constitution authorizing
its enactment? We have often enforced municipal bonds in aid of railroad
subscriptions, where they failed to recite the statute authorizing their issue,
but recited one which did not sustain their validity. The inquiry in such cases
has been, was there, in any statute, authority for the execution of the bonds?
Upon this branch of the case, it may be remarked that the State of Louisiana, in
1869, passed a statute [*61] giving to passengers, without regard
to race or color, equality of right in the accommodations of railroad and
street cars, steamboats or other water crafts, stage coaches, omnibuses, or
other vehicles. But in Hall v. De Cuir, 95 U.S. 487, that act was pronounced
unconstitutional so far as it related to commerce between the States, this
court saying that "if the public good requires such legislation it must
come from Congress, and not from the States." I suggest, that it may
become a pertinent inquiry whether Congress may, in the exertion of its power
to regulate commerce among the States, enforce [**57] among
passengers on public conveyances, equality of right, without regard to race,
color or previous [***112] condition of servitude, if it be true --
which I do not admit -- that such legislation would be an interference by
government with the social rights of the people.
My brethren say, that 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. It is, I submit, scarcely just
to say that the colored race has been the special favorite of the laws. The
statute of 1875, now adjudged to be unconstitutional, is for the benefit of
citizens of every race and color. What the nation through Congress, has sought
to accomplish in reference to that race, is -- what had already been done in
every State of the Union for the white race -- to secure and protect rights
belonging to them as freemen and citizens; nothing more. It was not deemed
enough "to help the feeble up, but to support him after." The one
underlying purpose of congressional [***113] legislation has been
to enable the black race to take the rank of mere citizens. The difficulty has
been to compel a recognition of the legal right of the black race to take the
rank of citizens, and to secure the enjoyment of privileges belonging, under
the law, to them as a component part of the people for whose welfare and happiness
government is ordained. [*62] At every step, in this direction, the
nation has been confronted with class tyranny, which a contemporary English
historian says is, of all tyrannies, the most intolerable, "for it is
ubiquitous in its operation, and weighs, perhaps, most heavily on those whose
obscurity or distance would withdraw them from the notice of single
despot." To-day, it is the colored race which is denied, by corporations
and individuals wielding public authority, rights fundamental in their freedom
and citizenship. At some future time, it may be that some other race will fall
under the ban of race discrimination. If the constitutional amendments be
enforced, according to the intent with which, as I conceive, they were adopted,
there cannot be, in this republic, any class of human beings in practical
subjection to another class, with power [***114] in the latter to
dole out to the former just such privileges as they may choose to grant. The
supreme law of the land has decreed that no authority shall be exercised in
this country upon the basis of discrimination, in respect of civil rights,
against freemen and citizens because of their race, color, or previous
condition of servitude. To that decree -- for the due enforcement of which, by
appropriate legislation, Congress has been invested with express power -- every
one must bow, whatever may have been, or whatever now are, his individual views
as to the wisdom or policy, either of the recent changes in the fundamental
law, or of the legislation which has been enacted to give them effect.
For the reasons stated I feel constrained to withhold my assent to the opinion
of the court.