1883CivilRightsCaseOverruling1875CivilRightsAct

8/13/2019 1883CivilRightsCaseOverruling1875CivilRightsAct

1/39

Civil Rights Cases, 109 U.S. 3 (1883)

U.S. Supreme Court

Civil Rights Cases, 109 U.S. 3 (1883)

Civil Rights Cases

Submitted Otober !erm, 188"

#eided Otober 1$th, 1888

109 U.S. 3

ON CERTIFICATE OF DIVISION FROM THE CIRCUIT COURT

OF THE UNITED STATES FOR THE DISTRICT OF KANSAS

Syllabus

1. The 1st and 2d sections of the Civil Rights Act passed March 1st, 1876, are unconstitutional enactments as

applied to the several tates, not !eing authori"ed either !# the $%%%th or $%&th Amendments of the

Constitution.

2. The $%&th Amendment is prohi!itor# upon the tates onl#, and the legislation authori"ed to !e adopted !#Congress for enforcing it is not direct legislation on the matters respecting 'hich the tates are prohi!ited from

ma(ing or enforcing certain la's, or doing certain acts, !ut is corrective legislation such as ma# !e necessar#

or proper for counteracting and redressing the effect of such la's or acts.

)age 1*+ . . -

The $%%%th Amendment relates onl# to slaver# and involuntar# servitude 'hich it a!olishes/, and, although, !#

its refle0 action, it esta!lishes universal freedom in the nited tates, and Congress ma# pro!a!l# pass la's

directl# enforcing its provisions, #et such legislative po'er e0tends onl# to the su!ect of slaver# and its

incidents, and the denial of eual accommodations in inns, pu!lic conve#ances, and places of pu!licamusement 'hich is for!idden !# the sections in uestion/, imposes no !adge of slaver# or involuntar#

servitude upon the part# !ut at most, infringes rights 'hich are protected from tate aggression !# the $%&th

Amendment.

-. 3hether the accommodations and privileges sought to !e protected !# the 1st and 2d sections of the Civil

Rights Act are or are not rights constitutionall# demanda!le, and if the# are, in 'hat form the# are to !e

protected, is not no' decided.


2/39

4. 5or is it decided 'hether the la', as it stands, is operative in the Territories and istrict of Colum!ia, the

decision onl# relating to its validit# as applied to the tates.

6. 5or is it decided 'hether Congress, under the commercial po'er, ma# or ma# not pass a la' securing to all

persons eual accommodations on lines of pu!lic conve#ance !et'een t'o or more tates.

These cases 'ere all founded on the first and second sections of the Act of Congress (no'n as the Civil Rights

Act, passed March 1st, 1874, entitled An Act to protect all citi"ens in their civil and legal rights. 18 tat. 4.

T'o of the cases, those against tanle# and 5ichols, 'ere indictments for den#ing to persons of color the

accommodations and privileges of an inn or hotel9 t'o of them, those against R#an and ingleton, 'ere, one

on information, the other an indictment, for den#ing to individuals the privileges and accommodations of a

theatre, the information against R#an !eing for refusing a colored person a seat in the dress circle of Maguire:s

theatre in an ;rancisco, and the indictment against ingleton 'as for den#ing to another person, 'hose color

'as not stated, the full eno#ment of the accommodations of the theatre (no'n as the ouse in

5e' ?or(,

said denial not !eing made for an# reasons !# la' applica!le to citi"ens of ever# race and color, and

regardless of an# previous condition of servitude.

The case of Ro!inson and 'ife against the Memphis @ Charleston R.R. Compan# 'as an action !rought in the

Circuit Court of the nited tates for the 3estern istrict of Tennessee to recover the penalt# of five hundred

dollars

)age 1*+ . . 4

given !# the second section of the act, and the gravamen 'as the refusal !# the conductor of the railroad

compan# to allo' the 'ife to ride in the ladies: car, for the reason, as stated in one of the counts, that she 'as

a person of African descent. The ur# rendered a verdict for the defendants in this case upon the merits, under

a charge of the court to 'hich a !ill of e0ceptions 'as ta(en !# the plaintiffs. The case 'as tried on the

assumption !# !oth parties of the validit# of the act of Congress, and the principal point made !# the

e0ceptions 'as that the udge allo'ed evidence to go to the ur# tending to sho' that the conductor had reason

to suspect that the plaintiff, the 'ife, 'as an improper person !ecause she 'as in compan# 'ith a #oung man

'hom he supposed to !e a 'hite man, and, on that account, inferred that there 'as some improper connection

!et'een them, and the udge charged the ur#, in su!stance, that, if this 'as the conductor:s bona fidereason

for e0cluding the 'oman from the car, the# might ta(e it into consideration on the uestion of the lia!ilit# of the

compan#. The case 'as !rought here !# 'rit of error at the suit of the plaintiffs. The cases of tanle#, 5ichols,

and ingleton came up on certificates of division of opinion !et'een the udges !elo' as to the constitutionalit#

of the first and second sections of the act referred to, and the case of R#an on a 'rit of error to the udgment of

the Circuit Court for the istrict of California sustaining a demurrer to the information.

The tanle#, R#an, 5ichols, and ingleton cases 'ere su!mitted together !# the solicitor general at the last

term of court, on the 7th da# of 5ovem!er, 1882. There 'ere no appearances, and no !riefs filed for the

defendants.


3/39

The Ro!inson case 'as su!mitted on the !riefs at the last term, on the +th da# of arch, 188.

)age 1*+ . . 8

MR. T%CB RADB? delivered the opinion of the court. After stating the facts in the a!ove language, he

continuedE

%t is o!vious that the primar# and important uestion in all

)age 1*+ . . +

the cases is the constitutionalit# of the la', for if the la' is unconstitutional, none of the prosecutions can stand.

The sections of the la' referred to provide as follo'sE

BC. 1. That all persons 'ithin the urisdiction of the nited tates shall !e entitled to the full and eual

eno#ment of the accommodations, advantages, facilities, and privileges of inns, pu!lic conve#ances on land or

'ater, theatres, and other places of pu!lic amusement, su!ect onl# to the conditions and limitations

esta!lished !# la' and applica!le ali(e to citi"ens of ever# race and color, regardless of an# previous condition

of servitude.

BC. 2. That an# person 'ho shall violate the foregoing section !# den#ing to an# citi"en, e0cept for reasons

!# la' applica!le to citi"ens of ever# race and color, and regardless of an# previous condition of servitude, the

full eno#ment of an# of the accommodations, advantages, facilities, or privileges in said section enumerated, or

!# aiding or inciting such denial, shall for ever# such offence, forfeit and pa# the sum of five hundred dollars to

the person aggrieved there!#, to !e recovered in an action of de!t, 'ith full costs, and shall also, for ever# such

offence, !e deemed guilt# of a misdemeanor, and, upon conviction thereof, shall !e fined not less than five

hundred nor more than one thousand dollars, or shall !e imprisoned not less than thirt# da#s nor more than

one #ear, Proided!That all persons ma# elect to sue for the penalt# aforesaid, or to proceed under their rights

at common la' and !# tate statutes, and having so elected to proceed in the one mode or the other, their right

to proceed in the other urisdiction shall !e !arred. ut this provision shall not appl# to criminal proceedings,

either under this act or the criminal la' of an# tate9 and "roided fur#$er!that a udgment for the penalt# in

favor of the part# aggrieved, or a udgment upon an indictment, shall !e a !ar to either prosecution

respectivel#.

Are these sections constitutionalF The first section, 'hich is the principal one, cannot !e fairl# understood

'ithout attending to the last clause, 'hich ualifies the preceding part.

The essence of the la' is not to declare !roadl# that all persons shall !e entitled to the full and eual

eno#ment of the accommodations, advantages, facilities, and privileges of inns,

)age 1*+ . . 1*


4/39

pu!lic conve#ances, and theatres, !ut that such eno#ment shall not !e su!ect to an# conditions applica!le

onl# to citi"ens of a particular race or color, or 'ho had !een in a previous condition of servitude. %n other

'ords, it is the purpose of the la' to declare that, in the eno#ment of the accommodations and privileges of

inns, pu!lic conve#ances, theatres, and other places of pu!lic amusement, no distinction shall !e made

!et'een citi"ens of different race or color or !et'een those 'ho have, and those 'ho have not, !een slaves.

%ts effect is to declare that, in all inns, pu!lic conve#ances, and places of amusement, colored citi"ens, 'hether

formerl# slaves or not, and citi"ens of other races, shall have the same accommodations and privileges in all

inns, pu!lic conve#ances, and places of amusement as are eno#ed !# 'hite citi"ens, and vice versa. The

second section ma(es it a penal offence in an# person to den# to an# citi"en of an# race or color, regardless of

previous servitude, an# of the accommodations or privileges mentioned in the first section.

>as Congress constitutional po'er to ma(e such a la'F =f course, no one 'ill contend that the po'er to pass

it 'as contained in the Constitution !efore the adoption of the last three amendments. The po'er is sought,

first, in the ;ourteenth Amendment, and the vie's and arguments of distinguished enators, advanced 'hilst

the la' 'as under consideration, claiming authorit# to pass it !# virtue of that amendment, are the principal

arguments adduced in favor of the po'er. 3e have carefull# considered those arguments, as 'as due to theeminent a!ilit# of those 'ho put them for'ard, and have felt, in all its force, the 'eight of authorit# 'hich

al'a#s invests a la' that Congress deems itself competent to pass. ut the responsi!ilit# of an independent

udgment is no' thro'n upon this court, and 'e are !ound to e0ercise it according to the !est lights 'e have.

The first section of the ;ourteenth Amendment 'hich is the one relied on/, after declaring 'ho shall !e citi"ens

of the nited tates, and of the several tates, is prohi!itor# in its character, and prohi!itor# upon the tates. %t

declares thatE

)age 1*+ . . 11

5o tate shall ma(e or enforce an# la' 'hich shall a!ridge the privileges or immunities of citi"ens of the

nited tates9 nor shall an# tate deprive an# person of life, li!ert#, or propert# 'ithout due process of la'9 nor

den# to an# person 'ithin its urisdiction the eual protection of the la's.

%t is tate action of a particular character that is prohi!ited. %ndividual invasion of individual rights is not the

su!ect matter of the amendment. %t has a deeper and !roader scope. %t nullifies and ma(es void all tate

legislation, and tate action of ever# (ind, 'hich impairs the privileges and immunities of citi"ens of the nited

tates or 'hich inures them in life, li!ert# or propert# 'ithout due process of la', or 'hich denies to an# of

them the eual protection of the la's. %t not onl# does this, !ut, in order that the national 'ill, thus declared,

ma# not !e a mere bru#u% ful%en!the last section of the amendment invests Congress 'ith po'er to enforce it

!# appropriate legislation. To enforce 'hatF To enforce the prohi!ition. To adopt appropriate legislation for

correcting the effects of such prohi!ited tate la's and tate acts, and thus to render them effectuall# null,

void, and innocuous. This is the legislative po'er conferred upon Congress, and this is the 'hole of it. %t does

not invest Congress 'ith po'er to legislate upon su!ects 'hich are 'ithin the domain of tate legislation, !ut

to provide modes of relief against tate legislation, or tate action, of the (ind referred to. %t does not authori"e

Congress to create a code of municipal la' for the regulation of private rights, !ut to provide modes of redress

against the operation of tate la's and the action of tate officers e0ecutive or udicial 'hen these are


5/39


6/39

!ut it should !e adapted to the mischief and 'rong 'hich the amendment 'as intended to provide against, and

that is tate la's, or tate action of some (ind, adverse to the rights of the citi"en secured !# the amendment.

uch legislation cannot properl# cover the 'hole domain of rights appertaining to life, li!ert# and propert#,

defining them and providing for their vindication. That 'ould !e to esta!lish a code of municipal la' regulative

of all private rights !et'een man and man in societ#. %t 'ould !e to ma(e Congress ta(e the place of the tate

legislatures and to supersede them. %t is a!surd to affirm that, !ecause the rights of life, li!ert#, and propert#

'hich include all civil rights that men have/ are, !# the amendment, sought to !e protected against invasion on

the part of the tate 'ithout due process of la', Congress ma# therefore provide due process of la' for their

vindication in ever# case, and that, !ecause the denial !# a tate to an# persons of the eual protection of the

la's is prohi!ited !# the amendment, therefore Congress ma# esta!lish la's for their eual protection. %n fine,

the legislation 'hich Congress is authori"ed to adopt in this !ehalf is not general legislation upon the rights of

the citi"en, !ut corrective legislation, that is, such as ma# !e necessar# and proper for counteracting such la's

as the tates ma#

)age 1*+ . . 1-

adopt or enforce, and 'hich, !# the amendment, the# are prohi!ited from ma(ing or enforcing, or such acts and

proceedings as the tates ma# commit or ta(e, and 'hich, !# the amendment, the# are prohi!ited from

committing or ta(ing. %t is not necessar# for us to state, if 'e could, 'hat legislation 'ould !e proper for

Congress to adopt. %t is sufficient for us to e0amine 'hether the la' in uestion is of that character.

An inspection of the la' sho's that it ma(es no reference 'hatever to an# supposed or apprehended violation

of the ;ourteenth Amendment on the part of the tates. %t is not predicated on an# such vie'. %t proceeds e)

dire+#oto declare that certain acts committed !# individuals shall !e deemed offences, and shall !e prosecuted

and punished !# proceedings in the courts of the nited tates. %t does not profess to !e corrective of an#

constitutional 'rong committed !# the tates9 it does not ma(e its operation to depend upon an# such 'rongcommitted. %t applies euall# to cases arising in tates 'hich have the ustest la's respecting the personal

rights of citi"ens, and 'hose authorities are ever read# to enforce such la's, as to those 'hich arise in tates

that ma# have violated the prohi!ition of the amendment. %n other 'ords, it steps into the domain of local

urisprudence, and la#s do'n rules for the conduct of individuals in societ# to'ards each other, and imposes

sanctions for the enforcement of those rules, 'ithout referring in an# manner to an# supposed action of the

tate or its authorities.

%f this legislation is appropriate for enforcing the prohi!itions of the amendment, it is difficult to see 'here it is to

stop. 3h# ma# not Congress, 'ith eual sho' of authorit#, enact a code of la's for the enforcement and

vindication of all rights of life, li!ert#, and propert#F %f it is supposa!le that the tates ma# deprive persons oflife, li!ert#, and propert# 'ithout due process of la' and the amendment itself does suppose this/, 'h# should

not Congress proceed at once to prescri!e due process of la' for the protection of ever# one of these

fundamental rights, in ever# possi!le case, as 'ell as to prescri!e eual privileges in inns, pu!lic conve#ances,

and theatresF The truth is that the implication of a po'er to legislate in this manner is !ased

)age 1*+ . . 14


7/39


8/39

on account of such person:s !eing an alien, or !# reason of his color or race, than is prescri!ed for the

punishment of citi"ens, shall !e deemed guilt# of a misdemeanor, and su!ect to fine and imprisonment as

specified in the act. This la' is clearl# corrective in its character, intended to counteract and furnish redress

against tate la's and proceedings, and customs having the force of la', 'hich sanction the 'rongful acts

specified. %n the Revised tatutes, it is true, a ver# important clause, toG'it, the 'ords an# la', statute,

ordinance, regulation or custom to the contrar# not'ithstanding, 'hich gave the declarator# section its point

and effect, are omitted9 !ut the penal part, !# 'hich the declaration is enforced, and 'hich is reall# the effective

part of the la', retains the reference to tate la's !# ma(ing the penalt# appl# onl# to those 'ho should

su!ect

)age 1*+ . . 17

parties to a deprivation of their rights under color of an# statute, ordinance, custom, etc., of an# tate or

Territor#, thus preserving the corrective character of the legislation. Rev. t. HH 177, 1+78, 1+7+, 441*. The

Civil Rights ill here referred to is analogous in its character to 'hat a la' 'ould have !een under the original

Constitution, declaring that the validit# of contracts should not !e impaired, and that, if an# person !ound !# acontract should refuse to compl# 'ith it, under color or pretence that it had !een rendered void or invalid !# a

tate la', he should !e lia!le to an action upon it in the courts of the nited tates, 'ith the addition of a

penalt# for setting up such an unust and unconstitutional defence.

%n this connection, it is proper to state that civil rights, such as are guaranteed !# the Constitution against tate

aggression, cannot !e impaired !# the 'rongful acts of individuals, unsupported !# tate authorit# in the shape

of la's, customs, or udicial or e0ecutive proceedings. The 'rongful act of an individual, unsupported !# an#

such authorit#, is simpl# a private 'rong, or a crime of that individual9 an invasion of the rights of the inured

part#, it is true, 'hether the# affect his person, his propert#, or his reputation9 !ut if not sanctioned in some 'a#

!# the tate, or not done under tate authorit#, his rights remain in full force, and ma# presuma!l# !evindicated !# resort to the la's of the tate for redress. An individual cannot deprive a man of his right to vote,

to hold propert#, to !u# and sell, to sue in the courts, or to !e a 'itness or a uror9 he ma#, !# force or fraud,

interfere 'ith the eno#ment of the right in a particular case9 he ma# commit an assault against the person, or

commit murder, or use ruffian violence at the polls, or slander the good name of a fello' citi"en9 !ut, unless

protected in these 'rongful acts !# some shield of tate la' or tate authorit#, he cannot destro# or inure the

right9 he 'ill onl# render himself amena!le to satisfaction or punishment, and amena!le therefor to the la's of

the tate 'here the 'rongful acts are committed. >ence, in all those cases 'here the Constitution see(s to

protect the rights of the citi"en against discriminative and unust la's of the tate !# prohi!iting such la's, it is

not individual offences, !ut a!rogation and

)age 1*+ . . 18

denial of rights, 'hich it denounces and for 'hich it clothes the Congress 'ith po'er to provide a remed#. This

a!rogation and denial of rights for 'hich the tates alone 'ere or could !e responsi!le 'as the great seminal

and fundamental 'rong 'hich 'as intended to !e remedied. And the remed# to !e provided must necessaril#

!e predicated upon that 'rong. %t must assume that, in the cases provided for, the evil or 'rong actuall#

committed rests upon some tate la' or tate authorit# for its e0cuse and perpetration.


9/39

=f course, these remar(s do not appl# to those cases in 'hich Congress is clothed 'ith direct and plenar#

po'ers of legislation over the 'hole su!ect, accompanied 'ith an e0press or implied denial of such po'er to

the tates, as in the regulation of commerce 'ith foreign nations, among the several tates, and 'ith the

%ndian tri!es, the coining of mone#, the esta!lishment of post offices and post roads, the declaring of 'ar, etc.

%n these cases, Congress has po'er to pass la's for regulating the su!ects specified in ever# detail, and the

conduct and transactions of individuals in respect thereof. ut 'here a su!ect is not su!mitted to the general

legislative po'er of Congress, !ut is onl# su!mitted thereto for the purpose of rendering effective some

prohi!ition against particular tate legislation or tate action in reference to that su!ect, the po'er given is

limited !# its o!ect, and an# legislation !# Congress in the matter must necessaril# !e corrective in its

character, adapted to counteract and redress the operation of such prohi!ited tate la's or proceedings of

tate officers.

%f the principles of interpretation 'hich 'e have laid do'n are correct, as 'e deem them to !e and the# are in

accord 'ith the principles laid do'n in the cases !efore referred to, as 'ell as in the recent case of Uni#ed

S#a#es & Harris!1*6 . . 62+/, it is clear that the la' in uestion cannot !e sustained !# an# grant of

legislative po'er made to Congress !# the ;ourteenth Amendment. That amendment prohi!its the tates fromden#ing to an# person the eual protection of the la's, and declares that Congress shall have po'er to

enforce, !# appropriate legislation, the provisions of the amendment. The la' in uestion, 'ithout an#

reference to adverse tate legislation on the su!ect,

)age 1*+ . . 1+

declares that all persons shall !e entitled to eual accommodations and privileges of inns, pu!lic conve#ances,

and places of pu!lic amusement, and imposes a penalt# upon an# individual 'ho shall den# to an# citi"en such

eual accommodations and privileges. This is not corrective legislation9 it is primar# and direct9 it ta(es

immediate and a!solute possession of the su!ect of the right of admission to inns, pu!lic conve#ances, andplaces of amusement. %t supersedes and displaces tate legislation on the same su!ect, or onl# allo's it

permissive force. %t ignores such legislation, and assumes that the matter is one that !elongs to the domain of

national regulation. 3hether it 'ould not have !een a more effective protection of the rights of citi"ens to have

clothed Congress 'ith plenar# po'er over the 'hole su!ect is not no' the uestion. 3hat 'e have to decide

is 'hether such plenar# po'er has !een conferred upon Congress !# the ;ourteenth Amendment, and, in our

udgment, it has not.

3e have discussed the uestion presented !# the la' on the assumption that a right to eno# eual

accommodation and privileges in all inns, pu!lic conve#ances, and places of pu!lic amusement is one of the

essential rights of the citi"en 'hich no tate can a!ridge or interfere 'ith. 3hether it is such a right or not is adifferent uestion 'hich, in the vie' 'e have ta(en of the validit# of the la' on the ground alread# stated, it is

not necessar# to e0amine.

3e have also discussed the validit# of the la' in reference to cases arising in the tates onl#, and not in

reference to cases arising in the Territories or the istrict of Colum!ia, 'hich are su!ect to the plenar#

legislation of Congress in ever# !ranch of municipal regulation. 3hether the la' 'ould !e a valid one as

applied to the Territories and the istrict is not a uestion for consideration in the cases !efore us, the# all
http://supreme.justia.com/us/106/629/case.htmlhttp://supreme.justia.com/us/106/629/case.htmlhttp://supreme.justia.com/us/106/629/case.html


10/39

!eing cases arising 'ithin the limits of tates. And 'hether Congress, in the e0ercise of its po'er to regulate

commerce amongst the several tates, might or might not pass a la' regulating rights in pu!lic conve#ances

passing from one tate to another is also a uestion 'hich is not no' !efore us, as the sections in uestion are

not conceived in an# such vie'.

)age 1*+ . . 2*

ut the po'er of Congress to adopt direct and primar#, as distinguished from corrective, legislation on the

su!ect in hand is sought, in the second place, from the Thirteenth Amendment, 'hich a!olishes slaver#. This

amendment declares

that neither slaver#, nor involuntar# servitude, e0cept as a punishment for crime, 'hereof the part# shall have

!een dul# convicted, shall e0ist 'ithin the nited tates, or an# place su!ect to their urisdiction,

and it gives Congress po'er to enforce the amendment !# appropriate legislation.

This amendment, as 'ell as the ;ourteenth, is undou!tedl# selfGe0ecuting, 'ithout an# ancillar# legislation, so

far as its terms are applica!le to an# e0isting state of circumstances. # its o'n unaided force and effect, it

a!olished slaver# and esta!lished universal freedom. till, legislation ma# !e necessar# and proper to meet all

the various cases and circumstances to !e affected !# it, and to prescri!e proper modes of redress for its

violation in letter or spirit. And such legislation ma# !e primar# and direct in its character, for the amendment is

not a mere prohi!ition of tate la's esta!lishing or upholding slaver#, !ut an a!solute declaration that slaver#

or involuntar# servitude shall not e0ist in an# part of the nited tates.

%t is true that slaver# cannot e0ist 'ithout la', an# more than propert# in lands and goods can e0ist 'ithout la',

and, therefore, the Thirteenth Amendment ma# !e regarded as nullif#ing all tate la's 'hich esta!lish or

uphold slaver#. ut it has a refle0 character also, esta!lishing and decreeing universal civil and political

freedom throughout the nited tates, and it is assumed that the po'er vested in Congress to enforce the

article !# appropriate legislation clothes Congress 'ith po'er to pass all la's necessar# and proper for

a!olishing all !adges and incidents of slaver# in the nited tates, and, upon this assumption ,it is claimed that

this is sufficient authorit# for declaring !# la' that all persons shall have eual accommodations and privileges

in all inns, pu!lic conve#ances, and places of amusement, the argument !eing that the denial of such eual

accommodations and privileges is, in itself, a su!ection to a species of servitude 'ithin the meaning of the

amendment. Conceding the maor proposition to !e true, that

)age 1*+ . . 21

Congress has a right to enact all necessar# and proper la's for the o!literation and prevention of slaver# 'ith

all its !adges and incidents, is the minor proposition also true, that the denial to an# person of admission to the

accommodations and privileges of an inn, a pu!lic conve#ance, or a theatre does su!ect that person to an#

form of servitude, or tend to fasten upon him an# !adge of slaver#F %f it does not, then po'er to pass the la' is

not found in the Thirteenth Amendment.


11/39

%n a ver# a!le and learned presentation of the cognate uestion as to the e0tent of the rights, privileges and

immunities of citi"ens 'hich cannot rightfull# !e a!ridged !# state la's under the ;ourteenth Amendment,

made in a former case, a long list of !urdens and disa!ilities of a servile character, incident to feudal vassalage

in ;rance, and 'hich 'ere a!olished !# the decrees of the 5ational Assem!l#, 'as presented for the purpose

of sho'ing that all ineualities and o!servances e0acted !# one man from another 'ere servitudes or !adges

of slaver# 'hich a great nation, in its effort to esta!lish universal li!ert#, made haste to 'ipe out and destro#.

ut these 'ere servitudes imposed !# the old la', or !# long custom, 'hich had the force of la', and e0acted

!# one man from another 'ithout the latter:s consent. hould an# such servitudes !e imposed !# a state la',

there can !e no dou!t that the la' 'ould !e repugnant to the ;ourteenth, no less than to the Thirteenth,

Amendment, nor an# greater dou!t that Congress has adeuate po'er to for!id an# such servitude from !eing

e0acted.

ut is there an# similarit# !et'een such servitudes and a denial !# the o'ner of an inn, a pu!lic conve#ance,

or a theatre of its accommodations and privileges to an individual, even though the denial !e founded on the

race or color of that individualF 3here does an# slaver# or servitude, or !adge of either, arise from such an act

of denialF 3hether it might not !e a denial of a right 'hich, if sanctioned !# the state la', 'ould !e o!no0iousto the prohi!itions of the ;ourteenth Amendment is another uestion. ut 'hat has it to do 'ith the uestion of

slaver#F

%t ma# !e that, !# the lac( Code as it 'as called/, in the times 'hen slaver# prevailed, the proprietors of inns

and pu!lic

)age 1*+ . . 22

conve#ances 'ere for!idden to receive persons of the African race !ecause it might assist slaves to escape

from the control of their masters. This 'as merel# a means of preventing such escapes, and 'as no part of theservitude itself. A la' of that (ind could not have an# such o!ect no', ho'ever ustl# it might !e deemed an

invasion of the part#:s legal right as a citi"en, and amena!le to the prohi!itions of the ;ourteenth Amendment.

The long e0istence of African slaver# in this countr# gave us ver# distinct notions of 'hat it 'as and 'hat 'ere

its necessar# incidents. Compulsor# service of the slave for the !enefit of the master, restraint of his

movements e0cept !# the master:s 'ill, disa!ilit# to hold propert#, to ma(e contracts, to have a standing in

court, to !e a 'itness against a 'hite person, and such li(e !urdens and incapacities 'ere the insepara!le

incidents of the institution. everer punishments for crimes 'ere imposed on the slave than on free persons

guilt# of the same offences. Congress, as 'e have seen, !# the Civil Rights ill of 1866, passed in vie' of the

Thirteenth Amendment !efore the ;ourteenth 'as adopted, undertoo( to 'ipe out these !urdens and

disa!ilities, the necessar# incidents of slaver# constituting its su!stance and visi!le form, and to secure to all

citi"ens of ever# race and color, and 'ithout regard to previous servitude, those fundamental rights 'hich are

the essence of civil freedom, namel#, the same right to ma(e and enforce contracts, to sue, !e parties, give

evidence, and to inherit, purchase, lease, sell and conve# propert# as is eno#ed !# 'hite citi"ens. 3hether this

legislation 'as full# authori"ed !# the Thirteenth Amendment alone, 'ithout the support 'hich it after'ard

received from the ;ourteenth Amendment, after the adoption of 'hich it 'as reenacted 'ith some additions, it

is not necessar# to inuire. %t is referred to for the purpose of sho'ing that, at that time in 1866/, Congress did


12/39

not assume, under the authorit# given !# the Thirteenth Amendment, to adust 'hat ma# !e called the social

rights of men and races in the communit#, !ut onl# to declare and vindicate those fundamental rights 'hich

appertain to the essence of citi"enship, and the eno#ment or deprivation of 'hich constitutes the essential

distinction !et'een freedom and slaver#.

)age 1*+ . . 2

3e must not forget that the province and scope of the Thirteenth and ;ourteenth amendments are differentE the

former simpl# a!olished slaver#9 the latter prohi!ited the tates from a!ridging the privileges or immunities of

citi"ens of the nited tates, from depriving them of life, li!ert#, or propert# 'ithout due process of la', and

from den#ing to an# the eual protection of the la's. The amendments are different, and the po'ers of

Congress under them are different. 3hat Congress has po'er to do under one it ma# not have po'er to do

under the other. nder the Thirteenth Amendment, it has onl# to do 'ith slaver# and its incidents. nder the

;ourteenth Amendment, it has po'er to counteract and render nugator# all tate la's and proceedings 'hich

have the effect to a!ridge an# of the privileges or immunities of citi"ens of the nited tates, or to deprive them

of life, li!ert# or propert# 'ithout due process of la', or to den# to an# of them the eual protection of the la's.nder the Thirteenth Amendment, the legislation, so far as necessar# or proper to eradicate all forms and

incidents of slaver# and involuntar# servitude, ma# !e direct and primar#, operating upon the acts of

individuals, 'hether sanctioned !# tate legislation or not9 under the ;ourteenth, as 'e have alread# sho'n, it

must necessaril# !e, and can onl# !e, corrective in its character, addressed to counteract and afford relief

against tate regulations or proceedings.

The onl# uestion under the present head, therefore, is 'hether the refusal to an# persons of the

accommodations of an inn or a pu!lic conve#ance or a place of pu!lic amusement !# an individual, and 'ithout

an# sanction or support from an# tate la' or regulation, does inflict upon such persons an# manner of

servitude or form of slaver# as those terms are understood in this countr#F Man# 'rongs ma# !e o!no0ious tothe prohi!itions of the ;ourteenth Amendment 'hich are not, in an# ust sense, incidents or elements of

slaver#. uch, for e0ample, 'ould !e the ta(ing of private propert# 'ithout due process of la', or allo'ing

persons 'ho have committed certain crimes horse stealing, for e0ample/ to !e sei"ed and hung !# the"osse

+o%i#a#us'ithout regular trial, or den#ing to an# person, or class of persons, the right to pursue an# peaceful

)age 1*+ . . 2-

avocations allo'ed to others. 3hat is called class legislation 'ould !elong to this categor#, and 'ould !e

o!no0ious to the prohi!itions of the ;ourteenth Amendment, !ut 'ould not necessaril# !e so to the Thirteenth,

'hen not involving the idea of an# su!ection of one man to another. The Thirteenth Amendment has respect

not to distinctions of race or class or color, !ut to slaver#. The ;ourteenth Amendment e0tends its protection to

races and classes, and prohi!its an# tate legislation 'hich has the effect of den#ing to an# race or class, or to

an# individual, the eual protection of the la's.

5o', conceding for the sa(e of the argument that the admission to an inn, a pu!lic conve#ance, or a place of

pu!lic amusement on eual terms 'ith all other citi"ens is the right of ever# man and all classes of men, is it

an# more than one of those rights 'hich the states, !# the ;ourteenth Amendment, are for!idden to den# to


13/39

an# personF And is the Constitution violated until the denial of the right has some tate sanction or authorit#F

Can the act of a mere individual, the o'ner of the inn, the pu!lic conve#ance or place of amusement, refusing

the accommodation, !e ustl# regarded as imposing an# !adge of slaver# or servitude upon the applicant, or

onl# as inflicting an ordinar# civil inur#, properl# cogni"a!le !# the la's of the tate and presuma!l# su!ect to

redress !# those la's until the contrar# appearsF

After giving to these uestions all the consideration 'hich their importance demands, 'e are forced to the

conclusion that such an act of refusal has nothing to do 'ith slaver# or involuntar# servitude, and that, if it is

violative of an# right of the part#, his redress is to !e sought under the la's of the tate, or, if those la's are

adverse to his rights and do not protect him, his remed# 'ill !e found in the corrective legislation 'hich

Congress has adopted, or ma# adopt, for counteracting the effect of tate la's or tate action prohi!ited !# the

;ourteenth Amendment. %t 'ould !e running the slaver# argument into the ground to ma(e it appl# to ever# act

of discrimination 'hich a person ma# see fit to ma(e as to the guests he 'ill entertain, or as to the people he

'ill ta(e into his coach or ca! or car, or admit to his concert or theatre, or deal 'ith in

)age 1*+ . . 24

other matters of intercourse or !usiness. %nn(eepers and pu!lic carriers, !# the la's of all the tates, so far as

'e are a'are, are !ound, to the e0tent of their facilities, to furnish proper accommodation to all uno!ectiona!le

persons 'ho in good faith appl# for them. %f the la's themselves ma(e an# unust discrimination amena!le to

the prohi!itions of the ;ourteenth Amendment, Congress has full po'er to afford a remed# under that

amendment and in accordance 'ith it.

3hen a man has emerged from slaver#, and, !# the aid of !eneficent legislation, has sha(en off the

insepara!le concomitants of that state, there must !e some stage in the progress of his elevation 'hen he

ta(es the ran( of a mere citi"en and ceases to !e the special favorite of the la's, and 'hen his rights as aciti"en or a man are to !e protected in the ordinar# modes !# 'hich other men:s rights are protected. There

'ere thousands of free colored people in this countr# !efore the a!olition of slaver#, eno#ing all the essential

rights of life, li!ert# and propert# the same as 'hite citi"ens, #et no one at that time thought that it 'as an#

invasion of his personal status as a freeman !ecause he 'as not admitted to all the privileges eno#ed !# 'hite

citi"ens, or !ecause he 'as su!ected to discriminations in the eno#ment of accommodations in inns, pu!lic

conve#ances and places of amusement. Mere discriminations on account of race or color 'ere not regarded as

!adges of slaver#. %f, since that time, the eno#ment of eual rights in all these respects has !ecome

esta!lished !# constitutional enactment, it is not !# force of the Thirteenth Amendment 'hich merel# a!olishes

slaver#/, !ut !# force of the Thirteenth and ;ifteenth Amendments.

=n the 'hole, 'e are of opinion that no countenance of authorit# for the passage of the la' in uestion can !e

found in either the Thirteenth or ;ourteenth Amendment of the Constitution, and no other ground of authorit#

for its passage !eing suggested, it must necessaril# !e declared void, at least so far as its operation in the

several tates is concerned.

This conclusion disposes of the cases no' under consideration. %n the cases of the Uni#ed S#a#es & Mi+$ael

Ryan!and of Ri+$ard A& Robinson and ,ife & T$e Me%"$is - C$arles#on


14/39

)age 1*+ . . 26

Railroad Co%"any!the udgments must !e affirmed. %n the other cases, the ans'er to !e given 'ill !e that the

first and second sections of the act of Congress of March 1st, 1874, entitled An Act to protect all citi"ens in

their civil and legal rights, are unconstitutional and void, and that udgment should !e rendered upon the

several indictments in those cases accordingl#.

And i# is so ordered&

MR. T%CB >ARDA5 dissenting.

The opinion in these cases proceeds, it seems to me, upon grounds entirel# too narro' and artificial. % cannot

resist the conclusion that the su!stance and spirit of the recent amendments of the Constitution have !een

sacrificed !# a su!tle and ingenious ver!al criticism.

%t is not the 'ords of the la', !ut the internal sense of it that ma(es the la'9 the letter of the la' is the !od#9

the sense and reason of the la' is the soul.

Constitutional provisions, adopted in the interest of li!ert# and for the purpose of securing, through national

legislation, if need !e, rights inhering in a state of freedom and !elonging to American citi"enship have !een so

construed as to defeat the ends the people desired to accomplish, 'hich the# attempted to accomplish, and

'hich the# supposed the# had accomplished !# changes in their fundamental la'. # this % do not mean that

the determination of these cases should have !een materiall# controlled !# considerations of mere e0pedienc#

or polic#. % mean onl#, in this form, to e0press an earnest conviction that the court has departed from the

familiar rule reuiring, in the interpretation of constitutional provisions, that full effect !e given to the intent 'ith

'hich the# 'ere adopted.

The purpose of the first section of the act of Congress of March 1, 1874, 'as to prevent race discrimination in

respect of the accommodations and facilities of inns, pu!lic conve#ances, and places of pu!lic amusement. %t

does not assume to define the general conditions and limitations under 'hich inns, pu!lic conve#ances, and

places of pu!lic amusement ma# !e conducted, !ut onl# declares that such conditions and limitations,

'hatever the# ma# !e, shall not !e applied so as to 'or( a

)age 1*+ . . 27

discrimination solel# !ecause of race, color, or previous condition of servitude. The second section provides a

penalt# against an#one den#ing, or aiding or inciting the denial, of an# citi"en, of that eualit# of right given !#

the first section e0cept for reasons !# la' applica!le to citi"ens of ever# race or color and regardless of an#

previous condition of servitude.

There seems to !e no su!stantial difference !et'een m# !rethren and m#self as to the purpose of Congress,

for the# sa# that the essence of the la' is not to declare !roadl# that all persons shall !e entitled to the full and

eual eno#ment of the accommodations, advantages, facilities, and privileges of inns, pu!lic conve#ances, and


15/39

theatres, !ut that such eno#ment shall not !e su!ect to conditions applica!le onl# to citi"ens of a particular

race or color, or 'ho had !een in a previous condition of servitude. The effect of the statute, the court sa#s, is

that colored citi"ens, 'hether formerl# slaves or not, and citi"ens of other races shall have the same

accommodations and privileges in all inns, pu!lic conve#ances, and places of amusement as are eno#ed !#

'hite persons, and vice versa.

The court adudges, % thin( erroneousl#, that Congress is 'ithout po'er, under either the Thirteenth or

;ourteenth Amendment, to esta!lish such regulations, and that the first and second sections of the statute are,

in all their parts, unconstitutional and void.

3hether the legislative department of the government has transcended the limits of its constitutional po'ers,

is at all times, said this court in Fle#+$er & Pe+'!6 Cr. 128,

a uestion of much delicac# 'hich ought seldom, if ever, to !e decided in the affirmative in a dou!tful

case. . . . The opposition !et'een the Constitution and the la' should !e such that the udge feels a clear and

strong conviction of their incompati!ilit# 'ith each other.

More recentl#, in Sin'in( Fund Cases!++ . . 718, 'e saidE

%t is our dut#, 'hen reuired in the regular course of udicial proceedings, to declare an act of Congress void if

not 'ithin the legislative po'er of the nited tates, !ut this declaration should never !e made e0cept in a

clear case. Bver# possi!le presumption is

)age 1*+ . . 28

in favor of the validit# of a statute, and this continues until the contrar# is sho'n !e#ond a rational dou!t. =ne

!ranch of the government cannot encroach on the domain of another 'ithout danger. The safet# of our

institutions depends in no small degree on a strict o!servance of this salutar# rule.

efore considering the language and scope of these amendments, it 'ill !e proper to recall the relations

su!sisting, prior to their adoption, !et'een the national government and the institution of slaver#, as indicated

!# the provisions of the Constitution, the legislation of Congress, and the decisions of this court. %n this mode,

'e ma# o!tain (e#s 'ith 'hich to open the mind of the people and discover the thought intended to !e

e0pressed.

%n section 2 of article %& of the Constitution, it 'as provided that

no person held to service or la!or in one tate, under the la's thereof, escaping into another, shall, in

conseuence of an# la' or regulation therein, !e discharged from such service or la!or, !ut shall !e delivered

up on claim of the part# to 'hom such service or la!or ma# !e due.

nder the authorit# of this clause, Congress passed the ;ugitive lave Da' of 17+, esta!lishing a mode for

the recover# of fugitive slaves and prescri!ing a penalt# against an# person 'ho should (no'ingl# and 'illingl#
http://supreme.justia.com/us/99/700/case.html#718http://supreme.justia.com/us/99/700/case.html#718http://supreme.justia.com/us/99/700/case.html#718


16/39

o!struct or hinder the master, his agent, or attorne# in sei"ing, arresting, and recovering the fugitive, or 'ho

should rescue the fugitive from him, or 'ho should har!or or conceal the slave after notice that he 'as a

fugitive.

%nPri(( & Co%%on*eal#$ of Pennsylania!16 )et. 4+, this court had occasion to define the po'ers and

duties of Congress in reference to fugitives from la!or. pea(ing !# MR. T%CB T=R?, it laid do'n these

propositionsE

That a clause of the Constitution conferring a right should not !e so construed as to ma(e it shado'# or

unsu!stantial, or leave the citi"en 'ithout a remedial po'er adeuate for its protection 'hen another

construction euall# accordant 'ith the 'ords and the sense in 'hich the# 'ere used 'ould enforce and

protect the right granted9

That Congress is not restricted to legislation for the e0ecution

)age 1*+ . . 2+

of its e0pressl# granted po'ers, !ut, for the protection of rights guaranteed !# the Constitution, ma# emplo#

such means, not prohi!ited, as are necessar# and proper, or such as are appropriate, to attain the ends

proposed9

That the Constitution recogni"ed the master:s right of propert# in his fugitive slave, and, as incidental thereto,

the right of sei"ing and recovering him, regardless of an# tate la' or regulation or local custom 'hatsoever9

and,

That the right of the master to have his slave, thus escaping, delivered up on claim, !eing guaranteed !# the

Constitution, the fair implication 'as that the national government 'as clothed 'ith appropriate authorit# and

functions to enforce it.

The court said

The fundamental principle, applica!le to all cases of this sort, 'ould seem to !e that, 'hen the end is reuired

the means are given, and 'hen the dut# is enoined, the a!ilit# to perform it is contemplated to e0ist on the part

of the functionar# to 'hom it is entrusted.

Again,

%t 'ould !e a strange anomal# and forced construction to suppose that the national government meant to rel#

for the due fulfillment of its o'n proper duties, and the rights 'hich it intended to secure, upon tate legislation,

and not upon that of the nion.A for#iori!it 'ould !e more o!ectiona!le to suppose that a po'er 'hich 'as to

!e the same throughout the nion should !e confided to tate sovereignt#, 'hich could not rightfull# act

!e#ond its o'n territorial limits
http://supreme.justia.com/us/41/539/case.htmlhttp://supreme.justia.com/us/41/539/case.htmlhttp://supreme.justia.com/us/41/539/case.html


17/39

The act of 17+ 'as, upon these grounds, adudged to !e a constitutional e0ercise of the po'ers of Congress.

%t is to !e o!served from the report of )riggs: case that )enns#lvania, !# her attorne# general, pressed the

argument that the o!ligation to surrender fugitive slaves 'as on the tates and for the tates, su!ect to the

restriction that the# should not pass la's or esta!lish regulations li!erating such fugitives9 that the Constitution

did not ta(e from the tates the right to determine the status of all persons 'ithin their respective urisdictions9

that it 'as for the tate in 'hich the alleged fugitive 'as found to determine, through her courts or in such

modes as she prescri!ed, 'hether the person arrested 'as, in fact, a freeman or a fugitive slave9 that the sole

po'er

)age 1*+ . . *

of the general government in the premises 'as, !# udicial instrumentalit#, to restrain and correct, not to for!id

and prevent in the a!sence of hostile tate action, and that, for the general government to assume primar#

authorit# to legislate on the su!ect of fugitive slaves, to the e0clusion of the tates, 'ould !e a dangerous

encroachment on tate sovereignt#. ut to such suggestions, this court turned a deaf ear, and adudged thatprimar# legislation !# Congress to enforce the master:s right 'as authori"ed !# the Constitution.

3e ne0t come to the ;ugitive lave Act of 184*, the constitutionalit# of 'hich rested, as did that of 17+, solel#

upon the implied po'er of Congress to enforce the master:s rights. The provisions of that act 'ere far in

advance of previous legislation. The# placed at the disposal of the master see(ing to recover his fugitive slave

su!stantiall# the 'hole po'er of the nation. %t invested commissioners, appointed under the act, 'ith po'er to

summon the"osse +o%i#a#usfor the enforcement of its provisions, and commanded all good citi"ens to assist

in its prompt and efficient e0ecution 'henever their services 'ere reuired as part of the "osse +o%i#a#us&

3ithout going into the details of that act, it is sufficient to sa# that Congress omitted from it nothing 'hich the

utmost ingenuit# could suggest as essential to the successful enforcement of the master:s claim to recover hisfugitive slave. And this court, inAble%an & .oo#$!21 >o'. 4*6, adudged it to !e in all of its provisions, full#

authori"ed !# the Constitution of the nited tates.

The onl# other case, prior to the adoption of the recent amendments, to 'hich reference 'ill !e made, is that of

Dred S+o## & Sanford!1+ >o'. ++. That case 'as instituted in a circuit court of the nited tates !# red

cott, claiming to !e a citi"en of Missouri, the defendant !eing a citi"en of another tate. %ts o!ect 'as to

assert the title of himself and famil# to freedom. The defendant pleaded in a!atement that cott GG !eing of

African descent, 'hose ancestors, of pure African !lood, 'ere !rought into this countr# and sold as slaves GG

'as not a citi"en. The onl# matter in issue, said the court, 'as 'hether the descendants of slaves thus

imported

)age 1*+ . . 1

and sold, 'hen the# should !e emancipated, or 'ho 'ere !orn of parents 'ho had !ecome free !efore their

!irth, are citi"ens of a tate in the sense in 'hich the 'ord citi"en is used in the Constitution of the nited

tates.
http://supreme.justia.com/us/62/506/case.htmlhttp://supreme.justia.com/us/62/506/case.htmlhttp://supreme.justia.com/us/62/506/case.htmlhttp://supreme.justia.com/us/60/393/case.html#399http://supreme.justia.com/us/60/393/case.html#399http://supreme.justia.com/us/62/506/case.htmlhttp://supreme.justia.com/us/60/393/case.html#399


18/39

%n determining that uestion, the court instituted an inuir# as to 'ho 'ere citi"ens of the several tates at the

adoption of the Constitution and 'ho at that time 'ere recogni"ed as the people 'hose rights and li!erties had

!een violated !# the ritish government. The result 'as a declaration !# this court, spea(ing !# Chief ustice

Tane#, that the legislation and histories of the times, and the language used in the eclaration of

%ndependence, sho'ed

that neither the class of persons 'ho had !een imported as slaves nor their descendants, 'hether the# had

!ecome free or not, 'ere then ac(no'ledged as a part of the people, nor intended to !e included in the general

'ords used in that instrument9

that

the# had for more than a centur# !efore !een regarded as !eings of an inferior race, and altogether unfit to

associate 'ith the 'hite race either in social or political relations, and so far inferior that the# had no rights

'hich the 'hite man 'as !ound to respect, and that the negro might ustl# and la'full# !e reduced to slaver#

for his !enefit9

that he 'as !ought and sold, and treated as an ordinar# article of merchandise and traffic, 'henever a profit

could !e made !# it9 and, that

this opinion 'as at that time fi0ed and universal in the civili"ed portion of the 'hite race. %t 'as regarded as an

a0iom in morals, as 'ell as in politics, 'hich no one thought of disputing, or supposed to !e open to dispute,

and men in ever# grade and position in societ# dail# and ha!ituall# acted upon it in their private pursuits, as

'ell as in matters of pu!lic concern, 'ithout for a moment dou!ting the correctness of this opinion.

The udgment of the court 'as that the 'ords people of the nited tates and citi"ens meant the same

thing, !oth descri!ing

the political !od# 'ho, according to our repu!lican institutions, form the sovereignt# and hold the po'er and

conduct the government through their representatives9

that

the# are 'hat 'e familiarl# call the :sovereign people,: and

)age 1*+ . . 2

ever# citi"en is one of this people and a constituent mem!er of this sovereignt#9

!ut that the class of persons descri!ed in the plea in a!atement did not compose a portion of this people, 'ere

not included, and 'ere not intended to !e included, under the 'ord +i#i/ens0 in #$e Cons#i#u#ion12 #$a#!

#$erefore! #$ey +ould 2+lai% none of #$e ri($#s and "riile(es *$i+$ #$a# ins#ru%en# "roides for and se+ures #o

+i#i/ens of #$e Uni#ed S#a#es12 #$a#!


19/39

on the contrar#, the# 'ere at that time considered as a su!ordinate and inferior class of !eings 'ho had !een

su!ugated !# the dominant race and, 'hether emancipated or not, #et remained su!ect to their authorit#, and

had no rights or privileges !ut such as those 'ho held the po'er and the government might choose to grant

them.

uch 'ere the relations 'hich formerl# e0isted !et'een the government, 'hether national or state, and the

descendants, 'hether free or in !ondage, of those of African !lood 'ho had !een imported into this countr#

and sold as slaves.

The first section of the Thirteenth Amendment provides that

neither slaver# nor involuntar# servitude, e0cept as a punishment for crime, 'hereof the part# shall have !een

dul# convicted, shall e0ist 'ithin the nited tates, or an# place su!ect to their urisdiction.

%ts second section declares that Congress shall have po'er to enforce this article !# appropriate legislation.

This amendment 'as follo'ed !# the Civil Rights Act of April +, 1866, 'hich, among other things, provided that

all persons !orn in the nited tates, and not su!ect to an# foreign po'er, e0cluding %ndians not ta0ed, are

here!# declared to !e citi"ens of the nited tates.

1- tat. 27. The po'er of Congress, in this mode, to elevate the enfranchised race to national citi"enship 'as

maintained !# the supporters of the act of 1866 to !e as full and complete as its po'er, !# general statute, to

ma(e the children, !eing of full age, of persons naturali"ed in this countr#, citi"ens of the nited tates 'ithout

going through the process of naturali"ation. The act of 1866 in this respect 'as also li(ened to that of 18-, in

'hich Congress declared

that the toc(!ridge tri!e of %ndians, and each and ever# one of them, shall !e deemed to !e and are here!#

declared to !e, citi"ens of the nited tates to

)age 1*+ . .

all intents and purposes, and shall !e entitled to all the rights, privileges, and immunities of such citi"ens, and

shall in all respects !e su!ect to the la's of the nited tates.

%f the act of 1866 'as valid in conferring national citi"enship upon all em!raced !# its terms, then the colored

race, enfranchised !# the Thirteenth Amendment, !ecame citi"ens of the nited tates prior to the adoption of

the ;ourteenth Amendment. ut, in the vie' 'hich % ta(e of the present case, it is not necessar# to e0amine

this uestion.

The terms of the Thirteenth Amendment are a!solute and universal. The# em!race ever# race 'hich then 'as,

or might thereafter !e, 'ithin the nited tates. 5o race, as such, can !e e0cluded from the !enefits or rights

there!# conferred. ?et it is historicall# true that that amendment 'as suggested !# the condition, in this

countr#, of that race 'hich had !een declared !# this court to have had GG according to the opinion entertained


20/39

!# the most civili"ed portion of the 'hite race at the time of the adoption of the Constitution GG no rights 'hich

the 'hite man 'as !ound to respect, none of the privileges or immunities secured !# that instrument to

citi"ens of the nited tates. %t had reference, in peculiar sense, to a people 'hich although the larger part of

them 'ere in slaver#/ had !een invited !# an act of Congress to aid in saving from overthro' a government

'hich, theretofore, !# all of its departments, had treated them as an inferior race, 'ith no legal rights or

privileges e0cept such as the 'hite race might choose to grant them.

These are the circumstances under 'hich the Thirteenth Amendment 'as proposed for adoption. The# are

no' recalled onl# that 'e ma# !etter understand 'hat 'as in the minds of the people 'hen that amendment

'as considered, and 'hat 'ere the mischiefs to !e remedied and the grievances to !e redressed !# its

adoption.

3e have seen that the po'er of Congress, !# legislation, to enforce the master:s right to have his slave

delivered up on claim 'as i%"liedfrom the recognition of that right in the national Constitution. ut the po'er

conferred !# the Thirteenth Amendment does not rest upon implication or

)age 1*+ . . -

inference. Those 'ho framed it 'ere not ignorant of the discussion, covering man# #ears of our countr#:s

histor#, as to the constitutional po'er of Congress to enact the ;ugitive lave Da's of 17+ and 184*. 3hen,

therefore, it 'as determined, !# a change in the fundamental la', to uproot the institution of slaver# 'herever it

e0isted in the land and to esta!lish universal freedom, there 'as a fi0ed purpose to place the authorit# of

Congress in the premises !e#ond the possi!ilit# of a dou!t. Therefore, e) indus#ria!po'er to enforce the

Thirteenth Amendment !# appropriate legislation 'as e0pressl# granted. Degislation for that purpose, m#

!rethren concede, ma# !e direct and primar#. ut to 'hat specific ends ma# it !e directedF This court has

uniforml# held that the national government has the po'er, 'hether e0pressl# given or not, to secure andprotect rights conferred or guaranteed !# the Constitution. Uni#ed S#a#es & Reese!+2 . . 21-9S#rauder &

,es# Vir(inia!1** . . *.That doctrine ought not no' to !e a!andoned 'hen the inuir# is not as to an

implied po'er to protect the master:s rights, !ut 'hat ma# Congress, under po'ers e0pressl# granted, do for

the protection of freedom and the rights necessaril# inhering in a state of freedom.

The Thirteenth Amendment, it is conceded, did something more than to prohi!it slaver# as an ins#i#u#ionresting

upon distinctions of race and upheld !# positive la'. M# !rethren admit that it esta!lished and decreed

universal +iil freedo%throughout the nited tates. ut did the freedom thus esta!lished involve nothing more

than e0emption from actual slaver#F 3as nothing more intended than to for!id one man from o'ning another

as propert#F 3as it the purpose of the nation simpl# to destro# the institution, and then remit the race,

theretofore held in !ondage, to the several tates for such protection, in their civil rights, necessaril# gro'ing

out of freedom, as those tates, in their discretion, might choose to provideF 3ere the tates against 'hose

protest the institution 'as destro#ed to !e left free, so far as national interference 'as concerned, to ma(e or

allo' discriminations against that race, as such, in the eno#ment of those fundamental rights 'hich, !#

universal concession, inhere in a state of freedomF

)age 1*+ . . 4
http://supreme.justia.com/us/92/214/case.htmlhttp://supreme.justia.com/us/92/214/case.htmlhttp://supreme.justia.com/us/92/214/case.htmlhttp://supreme.justia.com/us/100/303/case.htmlhttp://supreme.justia.com/us/100/303/case.htmlhttp://supreme.justia.com/us/100/303/case.htmlhttp://supreme.justia.com/us/92/214/case.htmlhttp://supreme.justia.com/us/100/303/case.html


21/39

>ad the Thirteenth Amendment stopped 'ith the s'eeping declaration in its first section against the e0istence

of slaver# and involuntar# servitude e0cept for crime, Congress 'ould have had the po'er, !# implication,

according to the doctrines of Pri(( & Co%%on*eal#$ of Pennsylania!repeated in S#rauder & ,es# Vir(inia!to

protect the freedom esta!lished, and conseuentl#, to secure the eno#ment of such civil rights as 'ere

fundamental in freedom. That it can e0ert its authorit# to that e0tent is made clear, and 'as intended to !e

made clear, !# the e0press grant of po'er contained in the second section of the Amendment.

That there are !urdens and disa!ilities 'hich constitute !adges of slaver# and servitude, and that the po'er to

enforce !# appropriate legislation the Thirteenth Amendment ma# !e e0erted !# legislation of a direct and

primar# character for the eradication not simpl# of the institution, !ut of its !adges and incidents, are

propositions 'hich ought to !e deemed indisputa!le. The# lie at the foundation of the Civil Rights Act of 1866.

3hether that act 'as authori"ed !# the Thirteenth Amendment alone, 'ithout the support 'hich it

su!seuentl# received from the ;ourteenth Amendment, after the adoption of 'hich it 'as reenacted 'ith

some additions, m# !rethren do not consider it necessar# to inuire. ut % su!mit, 'ith all respect to them, that

its constitutionalit# is conclusivel# sho'n !# their opinion. The# admit, as % have said, that the Thirteenth

Amendment esta!lished freedom9 that there are !urdens and disa!ilities, the necessar# incidents of slaver#,'hich constitute its su!stance and visi!le form9 that Congress, !# the act of 1866, passed in vie' of the

Thirteenth Amendment, !efore the ;ourteenth 'as adopted, undertoo( to remove certain !urdens and

disa!ilities, the necessar# incidents of slaver#, and to secure to all citi"ens of ever# race and color, and 'ithout

regard to previous servitude, those fundamental rights 'hich are the essence of civil freedom, namel#, the

same right to ma(e and enforce contracts, to sue, !e parties, give evidence, and to inherit, purchase, lease,

sell, and conve# propert# as is eno#ed !# 'hite citi"ens9 that, under the Thirteenth Amendment, Congress has

to do 'ith slaver# and

)age 1*+ . . 6

its incidents, and that legislation, so far as necessar# or proper to eradicate all forms and incidents of slaver

and involuntar# servitude, ma# !e direct and primar#, operating upon the acts of individuals, 'hether

sanctioned !# tate legislation or not. These propositions !eing conceded, it is impossi!le, as it seems to me,

to uestion the constitutional validit# of the Civil Rights Act of 1866. % do not contend that the Thirteenth

Amendment invests Congress 'ith authorit#, !# legislation, to define and regulate the entire !od# of the civil

rights 'hich citi"ens eno#, or ma# eno#, in the several tates. ut % hold that, since slaver#, as the court has

repeatedl# declared, Slau($#er$ouse Cases!16 3all. 69 S#rauder ,es# Vir(inia!1** . . *,'as the

moving or principal cause of the adoption of that amendment, and since that institution rested 'holl# upon the

inferiorit#, as a race, of those held in !ondage, their freedom necessaril# involved immunit# from, and

protection against, all discrimination against them, !ecause of their race, in respect of such civil rights as!elong to freemen of other races. Congress, therefore, under its e0press po'er to enforce that amendment !#

appropriate legislation, ma# enact la's to protect that people against the deprivation, be+ause of #$eir ra+e!of

an# civil rights granted to other freemen in the same tate, and such legislation ma# !e of a direct and primar#

character, operating upon tates, their officers and agents, and also upon at least such individuals and

corporations as e0ercise pu!lic functions and 'ield po'er and authorit# under the tate.
http://supreme.justia.com/us/83/36/case.htmlhttp://supreme.justia.com/us/83/36/case.htmlhttp://supreme.justia.com/us/100/303/case.htmlhttp://supreme.justia.com/us/100/303/case.htmlhttp://supreme.justia.com/us/100/303/case.htmlhttp://supreme.justia.com/us/83/36/case.htmlhttp://supreme.justia.com/us/100/303/case.html


22/39

To test the correctness of this position, let us suppose that, prior to the adoption of the ;ourteenth Amendment,

a tate had passed a statute den#ing to freemen of African descent, resident 'ithin its limits, the same right

'hich 'as accorded to 'hite persons of ma(ing and enforcing contracts and of inheriting, purchasing, leasing,

selling and conve#ing propert#9 or a statute su!ecting colored people to severer punishment for particular

offences than 'as prescri!ed for 'hite persons, or e0cluding that race from the !enefit of the la's e0empting

homesteads from e0ecution. Recall the legislation of 1864G1866 in some of the tates, of 'hich this court in the

Slau($#er$ouse

)age 1*+ . . 7

Casessaid that it imposed upon the colored race onerous disa!ilities and !urdens9 curtailed their rights in the

pursuit of life, li!ert# and propert# to such an e0tent that their freedom 'as of little value9 for!ade them to

appear in the to'ns in an# other character than menial servants9 reuired them to reside on and cultivate the

soil, 'ithout the right to purchase or o'n it9 e0cluded them from man# occupations of gain, and denied them

the privilege of giving testimon# in the courts 'here a 'hite man 'as a part#. 16 3all. 8 . . 47.Can there

!e an# dou!t that all such enactments might have !een reached !# direct legislation upon the part of Congressunder its e0press po'er to enforce the Thirteenth AmendmentF 3ould an# court have hesitated to declare that

such legislation imposed !adges of servitude in conflict 'ith the civil freedom ordained !# that amendmentF

That it 'ould have !een also in conflict 'ith the ;ourteenth Amendment !ecause inconsistent 'ith the

fundamental rights of American citi"enship does not prove that it 'ould have !een consistent 'ith the

Thirteenth Amendment.

3hat has !een said is sufficient to sho' that the po'er of Congress under the Thirteenth Amendment is not

necessaril# restricted to legislation against slaver# as an institution upheld !# positive la', !ut ma# !e e0erted

to the e0tent, at least, of protecting the li!erated race against discrimination in respect of legal rights !elonging

to freemen 'here such discrimination is !ased upon race.

%t remains no' to inuire 'hat are the legal rights of colored persons in respect of the accommodations,

privileges and facilities of pu!lic conve#ances, inns, and places of pu!lic amusementF

Firs#!as to pu!lic conve#ances on land and 'ater. %n Ne* 3ersey S#ea% Nai(a#ion Co& & Mer+$an#s0 .an'!6

>o'. --, this court, spea(ing !# Mr. ustice 5elson, said that a common carrier is

in the e0ercise of a sort of pu!lic office, and has pu!lic duties to perform, from 'hich he should not !e

permitted to e0onerate himself 'ithout the assent of the parties concerned.

To the same effect is Munn & Illinois!+- . . 11. %n Ol+o## & Su"erisor!16 3all. 678, it 'as ruled that

)age 1*+ . . 8

railroads are pu!lic high'a#s, esta!lished !# authorit# of the tate for the pu!lic use9 that the# are nonetheless

pu!lic high'a#s !ecause controlled and o'ned !# private corporations9 that it is a part of the function of

government to ma(e and maintain high'a#s for the convenience of the pu!lic9 that no matter 'ho is the agent,
http://supreme.justia.com/us/83/36/case.html#57http://supreme.justia.com/us/83/36/case.html#57http://supreme.justia.com/us/47/344/case.htmlhttp://supreme.justia.com/us/47/344/case.htmlhttp://supreme.justia.com/us/94/113/case.htmlhttp://supreme.justia.com/us/83/678/case.htmlhttp://supreme.justia.com/us/83/678/case.htmlhttp://supreme.justia.com/us/83/36/case.html#57http://supreme.justia.com/us/47/344/case.htmlhttp://supreme.justia.com/us/94/113/case.htmlhttp://supreme.justia.com/us/83/678/case.html


23/39

or 'hat is the agenc#, the function performed is #$a# of #$e S#a#e1that, although the o'ners ma# !e private

companies, the# ma# !e compelled to permit the pu!lic to use these 'or(s in the manner in 'hich the# can !e

used9 that, upon these grounds alone have the courts sustained the investiture of railroad corporations 'ith the

tate:s right of eminent domain, or the right of municipal corporations, under legislative authorit#, to assess,

lev# and collect ta0es to aid in the construction of railroads. o in To*ns$i" of 4ueensbury & Culer!1+ 3all.

8, it 'as said that a municipal su!scription of railroad stoc( 'as in aid of the construction and maintenance of

a pu!lic high'a#, and for the promotion of a pu!lic use. Again, in To*ns$i" of Pine 5roe & Tal+o##!1+ 3all.

666E Though the corporation IrailroadJ 'as private, its 'or( 'as pu!lic, as much so as if it 'ere to !e

constructed !# the tate. To the li(e effect are numerous adudications in this and the tate courts 'ith 'hich

the profession is familiar. The upreme udicial Court of Massachusetts, in In$abi#an#s of ,or+es#er & T$e

,es#ern R&R& Cor"ora#ion!- Met. 46-, said in reference to a railroadE

The esta!lishment of that great thoroughfare is regarded as a pu!lic 'or(, esta!lished !# pu!lic authorit#,

intended for the pu!lic use and !enefit, the use of 'hich is secured to the 'hole communit#, and constitutes,

therefore, li(e a canal, turnpi(e, or high'a#, a pu!lic easement. . . . %t is true that the real and personal

propert#, necessar# to the esta!lishment and management of the railroad is vested in the corporation, !ut it isin trust for the pu!lic.

%n Erie! E#+&! R&R& Co& & Casey!26 )enn. t. 287, the court, referring to an act repealing the charter of a

railroad, and under 'hich the tate too( possession of the road, saidE

%t is a pu!lic high'a#, solemnl# devoted to pu!lic use. 3hen the lands 'ere ta(en, it 'as for such use, or the#

could not have !een ta(en at all. . . . Railroads esta!lished

)age 1*+ . . +

upon land ta(en !# the right of eminent domain !# authorit# of the common'ealth, created !# her la's as

thoroughfares for commerce, are her high'a#s. 5o corporation has propert# in them, though it ma# have

franchises anne0ed to and e0ercisa!le 'ithin them.

%n man# courts it has !een held that, !ecause of the pu!lic interest in such a corporation, the land of a railroad

compan# cannot !e levied on and sold under e0ecution !# a creditor. The sum of the adudged cases is that a

railroad corporation is a governmental agenc#, created primaril# for pu!lic purposes and su!ect to !e

controlled for the pu!lic !enefit. pon this ground, the tate, 'hen unfettered !# contract, ma# regulate, in its

discretion, the rates of fares of passengers and freight. And upon this ground, too, the tate ma# regulate the

entire management of railroads in all matters affecting the convenience and safet# of the pu!lic, as, for

e0ample, !# regulating speed, compelling stops of prescri!ed length at stations, and prohi!iting discriminations

and favoritism. %f the corporation neglect or refuse to discharge its duties to the pu!lic, it ma# !e coerced to do

so !# appropriate proceedings in the name or in !ehalf of the tate.

uch !eing the relations these corporations hold to the pu!lic, it 'ould seem that the right of a colored person

to use an improved pu!lic high'a# upon the terms accorded to freemen of other races is as fundamental, in the
http://supreme.justia.com/us/86/83/case.htmlhttp://supreme.justia.com/us/86/666/case.htmlhttp://supreme.justia.com/us/86/83/case.htmlhttp://supreme.justia.com/us/86/666/case.html


24/39

state of freedom esta!lished in this countr#, as are an# of the rights 'hich m# !rethren concede to !e so far

fundamental as to !e deemed the essence of civil freedom. )ersonal li!ert# consists, sa#s lac(stone,

in the po'er of locomotion, of changing situation, or removing one:s person to 'hatever places one:s o'n

inclination ma# direct, 'ithout restraint unless !# due course of la'.

ut of 'hat value is this right of locomotion if it ma# !e clogged !# such !urdens as Congress intended !# the

act of 1874 to removeF The# are !urdens 'hich la# at the ver# foundation of the institution of slaver# as it once

e0isted. The# are not to !e sustained e0cept upon the assumption that there is, in this land of universal li!ert#,

a class 'hich ma# still !e discriminated against, even in respect of rights of a character

)age 1*+ . . -*

so necessar# and supreme that, deprived of their eno#ment in common 'ith others, a freeman is not onl#

!randed as one inferior and infected, !ut, in the competitions of life, is ro!!ed of some of the most essential

means of e0istence, and all this solel# !ecause the# !elong to a particular race 'hich the nation has li!erated.The Thirteenth Amendment alone o!literated the race line so far as all rights fundamental in a state of freedom

are concerned.

Se+ond!as to inns. The same general o!servations 'hich have !een made as to railroads are applica!le to

inns. The 'ord inn has a technical legal signification. %t means, in the act of 1874, ust 'hat it meant at

common la'. A mere private !oarding house is not an inn, nor is its (eeper su!ect to the responsi!ilities, or

entitled to the privileges, of a common inn(eeper.

To constitute one an inn(eeper 'ithin the legal force of that term, he must (eep a house of entertainment or

lodging for all travelers or 'a#farers 'ho might choose to accept the same, !eing of good character or

conduct.

Redfield on Carriers, etc., H 7. a#s udge tor#E

An inn(eeper ma# !e defined to !e the (eeper of a common inn for the lodging and entertainment of travelers

and passengers, their horses and attendants. An inn(eeper is !ound to ta(e in all travelers and 'a#faring

persons, and to entertain them, if he can accommodate them, for a reasona!le compensation, and he must

guard their goods 'ith proper diligence. . . . %f an inn(eeper improperl# refuses to receive or provide for a guest,

he is lia!le to !e indicted therefor. . . . The# carriers of passengers/ are no more at li!ert# to refuse a

passenger, if the# have sufficient room and accommodations, than an inn(eeper is to refuse suita!le room and

accommodations to a guest.

tor# on ailments HH -74G-76.

%n Re) & Iens!7 Carrington @ )a#ne 21, 2 B.C.D. -+, the court, spea(ing !# Mr. ustice Coleridge, saidE


25/39

An indictment lies against an inn(eeper 'ho refuses to receive a guest, he having at the time room in his

house and either the price of the guest:s entertainment !eing tendered to him or such circumstances occurring

as 'ill dispense 'ith that

)age 1*+ . . -1

tender. This la' is founded in good sense. The inn(eeper is not to select his guest. >e has no right to sa# to

one, #ou shall come to m# inn, and to another, #ou shall not, as ever#one coming and conducting himself in a

proper manner has a right to !e received, and, for this purpose inn(eepers are a sort of pu!lic servants, the#

having, in return a (ind of privilege of entertaining travelers and suppl#ing them 'ith 'hat the# 'ant.

These authorities are sufficient to sho' that a (eeper of an inn is in the e0ercise of a 6uasiGpu!lic emplo#ment.

The la' gives him special privileges. and he is charged 'ith certain duties and responsi!ilities to the pu!lic.

The pu!lic nature of his emplo#ment for!ids him from discriminating against an# person as(ing admission as a

guest on account of the race or color of that person.

T$ird&As to places of pu!lic amusement. %t ma# !e argued that the managers of such places have no duties to

perform 'ith 'hich the pu!lic are, in an# legal sense, concerned, or 'ith 'hich the pu!lic have an# right to

interfere, and that the e0clusion of a !lac( man from a place of pu!lic amusement on account of his race, or the

denial to him on that ground of eual accommodations at such places, violates no legal right for the vindication

of 'hich he ma# invo(e the aid of the courts. M# ans'er is that places of pu!lic amusement, 'ithin the

meaning of the act of 1874, are such as are esta!lished and maintained under direct license of the la'. The

authorit# to esta!lish and maintain them comes from the pu!lic. The colored race is a part of that pu!lic. The

local government granting the license represents them as 'ell as all other races 'ithin its urisdiction. A license

from the pu!lic to esta!lish a place of pu!lic amusement imports in la' eualit# of right at such places among

all the mem!ers of that pu!lic. This must !e so unless it !e GG 'hich % den# GG that the common municipalgovernment of all the people ma#, in the e0ertion of its po'ers, conferred for the !enefit of all, discriminate or

authori"e discrimination against a particular race solel# !ecause of its former condition of servitude.

% also su!mit, 'hether it can !e said GG in vie' of the doctrines of this court as announced in Munn & S#a#e of

Illinois!

)age 1*+ . . -2

+- . . 11, and reaffirmed in Pei' & C$i+a(o - N&,& Rail*ay Co&!+- . . 16-,16+ Iargument of counsel GG

omittedJ, that the management of places of pu!lic amusement is a purel# private matter, 'ith 'hich

government has no rightful concernF %n the Munncase, the uestion 'as 'hether the tate of %llinois could fi0,

!# la', the ma0imum of charges for the storage of grain in certain 'arehouses in that tate GG the "ria#e

"ro"er#y of indiidual +i#i/ens&After uoting a remar( attri!uted to Dord Chief ustice >ale, to the effect that,

'hen private propert# is affected 'ith a pu!lic interest, it ceases to !e7uris "ria#ionl#, the court sa#sE

)ropert# does !ecome clothed 'ith a pu!lic interest 'hen used in a manner to ma(e it of pu!lic conseuence

and affect the communit# at large. 3hen, therefore, one devotes his propert# to a use in 'hich the pu!lic has
http://supreme.justia.com/us/94/113/case.htmlhttp://supreme.justia.com/us/94/113/case.htmlhttp://supreme.justia.com/us/94/113/case.htmlhttp://supreme.justia.com/us/94/164/case.htmlhttp://supreme.justia.com/us/94/164/case.htmlhttp://supreme.justia.com/us/94/164/case.htmlhttp://supreme.justia.com/us/94/113/case.htmlhttp://supreme.justia.com/us/94/113/case.htmlhttp://supreme.justia.com/us/94/113/case.htmlhttp://supreme.justia.com/us/94/164/case.html


26/39

an interest, he, in effect, grants to the pu!lic an interest in that use, and must su!mit to !e controlled !# the

pu!lic for the common good to the e0tent of the interest he has thus created. >e ma# 'ithdra' his grant !#

discontinuing the use, !ut, so long as he maintains the use, he must su!mit to the control.

The doctrines of Munn & Illinoishave never !een modified !# this court, and % am ustified upon the authorit# of

that case in sa#ing that places of pu!lic amusement, conducted under the authorit# of the la', are clothed 'ith

a pu!lic interest !ecause used in a manner to ma(e them of pu!lic conseuence and to affect the communit#

at large. The la' ma# therefore regulate, to some e0tent, the mode in 'hich the# shall !e conducted, and,

conseuentl#, the pu!lic have rights in respect of such places 'hich ma# !e vindicated !# the la'. %t is

conseuentl# not a matter purel# of private concern.

Congress has not, in these matters, entered the domain of tate control and supervision. %t does not, as % have

said, assume to prescri!e the general conditions and limitations under 'hich inns, pu!lic conve#ances, and

places of pu!lic amusement shall !e conducted or managed. %t simpl# declares, in effect, that, since the nation

has esta!lished universal freedom in this countr# for all time, there shall !e no discrimination, !ased merel#

upon race or color, in respect of the accommodations

)age 1*+ . . -

and advantages of pu!lic conve#ances, inns, and places of pu!lic amusement.

% am of the opinion that such discrimination practised !# corporations and individuals in the e0ercise of their

pu!lic or 6uasiGpu!lic functions is a !adge of servitude the imposition of 'hich Congress ma# prevent under its

po'er, !# appropriate legislation, to enforce the Thirteenth Amendment9 and conseuentl#, 'ithout reference to

its enlarged po'er under the ;ourteenth Amendment, the act of March 1, 1874, is not, in m# udgment,

repugnant to the Constitution.

%t remains no' to consider these cases 'ith reference to the po'er Congress has possessed since the

adoption of the ;ourteenth Amendment. Much that has !een said as to the po'er of Congress under the

Thirteenth Amendment is applica!le to this !ranch of the discussion, and 'ill not !e repeated.

efore the adoption of the recent amendments, it had !ecome, as 'e have seen, the esta!lished doctrine of

this court that negroes, 'hose ancestors had !een imported and sold as slaves, could not !ecome citi"ens of a

tate, or even of the nited tates, 'ith the rights and privileges guaranteed to citi"ens !# the national

Constitution9 further, that one might have all the rights and privileges of a citi"en of a tate 'ithout !eing a

citi"en in the sense in 'hich that 'ord 'as used in the national Constitution, and 'ithout !eing entitled to the

privileges and immunities of citi"ens of the several tates. till further, !et'een the adoption of the Thirteenth

Amendment and the proposal !# Congress of the ;ourteenth Amendment, on une 16, 1866, the statute !oo(s

of several of the tates, as 'e have seen, had !ecome loaded do'n 'ith enactments 'hich, under the guise of

Apprentice, &agrant, and contract regulations, sought to (eep the colored race in a condition, practicall#, of

servitude. %t 'as openl# announced that 'hatever might !e the rights 'hich persons of that race had as

freemen, under the guarantees of the national Constitution, the# could not !ecome citi"ens of a tate, 'ith the


27/39

privileges !elonging to citi"ens, e0cept !# the consent of such tate9 conseuentl#, that their civil rights as

citi"ens of the tate depended entirel# upon tate legislation. To meet this ne' peril to the !lac( race, that the

)age 1*+ . . --

purposes of the nation might not !e dou!ted or defeated, and !# 'a# of further enlargement of the po'er ofCongress, the ;ourteenth Amendment 'as proposed for adoption.

Remem!ering that this court, in the Slau($#er$ouse Cases!declared that the one pervading purpose found in

all the recent amendments, l#ing at the foundation of each and 'ithout 'hich none of them 'ould have !een

suggested, 'as

the freedom of the slave race, the securit# and firm esta!lishment of that freedom, and the protection of the

ne'l# made freeman and citi"en from the oppression of those 'ho had formerl# e0ercised unlimited dominion

over him

GG that each amendment 'as addressed primaril# to the grievances of that race GG let us proceed to consider the

language of the ;ourteenth Amendment.

%ts first and fifth sections are in these 'ordsE

BC. 1. All persons !orn or naturali"ed in the nited tates, and su!ect to the urisdiction thereof, are citi"ens

of the nited tates and of the tate 'herein the# reside. 5o tate shall ma(e or enforce an# la' 'hich shall

a!ridge the privileges or immunities of citi"ens of the nited tates9 nor shall an# tate deprive an# person of

life, li!ert#, or propert#, 'ithout due process of la'9 nor den# to an# person 'ithin its urisdiction the eual

protection of the la's.

8 8 8 82

BC. 4. That Congress shall have po'er to enforce, !# appropriate legislation, the provisions of this article.

%t 'as adudged in S#rauder & ,es# Vir(inia!1** . . *, and E) "ar#e Vir(inia!1** . . +, and m#

!rethren concede, that positive rights and privileges 'ere intended to !e secured, and are, in fact, secured, !#

the ;ourteenth Amendment.

ut 'hen, under 'hat circumstances, and to 'hat e0tent ma# Congress, !# means of legislation, e0ert its

po'er to enforce the provisions of this amendmentF The theor# of the opinion of the maorit# of the court GG the

foundation upon 'hich their reasoning seems to rest GG is that the general government cannot, in advance of

hostile tate la's or hostile tate

)age 1*+ . . -4
http://supreme.justia.com/us/100/303/case.htmlhttp://supreme.justia.com/us/100/303/case.htmlhttp://supreme.justia.com/us/100/339/case.htmlhttp://supreme.justia.com/us/100/339/case.htmlhttp://supreme.justia.com/us/100/303/case.htmlhttp://supreme.justia.com/us/100/339/case.html


28/39

proceedings, activel# interfere for the protection of m# of the rights, privileges, and immunities secured !# the

;ourteenth Amendment. %t is sai

Date post:	04-Jun-2018
Category:	Documents
Upload:	julio-vargas
View:	214 times
Download:	0 times

1883CivilRightsCaseOverruling1875CivilRightsAct

Documents