Civil Rights Cases 109 U.S. 3 (1883)
CIVIL RIGHTS CASES 109 U.S. 3 (1883)
In an opinion by Justice joseph p. bradley, with only Justice john marshall harlan dissenting, the Supreme Court ruled that Congress had no constitutional authority under either the thirteenth or the fourteenth amendment to pass the civil rights act of 1875. Holding that act unconstitutional proved to be one of the most fateful decisions in American history. It had the effect of reinforcing racist attitudes and practices, while emasculating a heroic effort by Congress and the President to prevent the growth of a Jim Crow society. The Court also emasculated the Fourteenth Amendment's enforcement clause, section five. The tragedy is that the Court made the Constitution legitimize public immorality on the basis of specious reasoning.
The Civil Rights Cases comprised five cases decided together, in which the act of 1875 had been enforced against innkeepers, theater owners, and a railroad company. In each of the five, a black citizen was denied the same accommodations, guaranteed by the statute, as white citizens enjoyed. The Court saw only an invasion of local law by the national government, contrary to the powers reserved to the states under the tenth amendment. Bradley began his analysis with the Fourteenth Amendment, observing that its first section, after declaring who shall be a citizen, was prohibitory: it restrained only state action."Individual invasion of individual rights is not the subject-matter of the amendment." Its fifth section empowered Congress to enforce the amendment by appropriate legislation. "To enforce what? To enforce the prohibition," Bradley answered. He ignored the fact that the enforcement section applied to the entire amendment, including the citizenship clause, which made all persons born or naturalized in the United States and subject to its jurisdiction citizens of the United States and of the states in which they reside. As Harlan pointed out, citizenship necessarily imports "equality of civil rights among citizens of every race in the same state." Congress could guard and enforce rights, including the rights of citizenship, deriving from the Constitution itself. Harlan reminded the Court of its opinion in strauder v. west virginia (1880), where it had said that "a right or immunity created by the constitution or only guarantied by it, even without any express delegation of power, may be protected by congress."
But Bradley took the view that the legislative power conferred upon Congress by the Fourteenth Amendment does not authorize enactments on subjects "which are within the domain of state legislation.…It does not authorize congress to create a code of municipal law for regulation of private rights." Congress can merely provide relief against state action that violates the amendment's prohibitions on the states. Thus, only when the states acted adversely to the rights of citizenship could Congress pass remedial legislation. But its legislation could not cover the whole domain of civil rights or regulate "all private rights between man and man in society." Otherwise, Congress would "supersede" the state legislatures. In effect the Court was saying that the Reconstruction amendments had not revolutionized the federal system. In effect the Court also warned the states not to discriminate racially, lest Congress intervene, as it had in the civil rights act of 1866, which the Court called "corrective" legislation against state action. In the cases under consideration, however, the discrimination derived from purely private acts unsupported by state authority. "The wrongful act of an individual, unsupported by any such authority, is simply a private wrong" that Congress cannot reach. Congress can, of course, reach and regulate private conduct in the normal course of legislation, penalizing individuals; but, Bradley explained, in every such case Congress possesses under the Constitution a power to act on the subject.
Under the Thirteenth Amendment, however, Congress can enact any legislation necessary and proper to eradicate slavery and "all badges and incidents of slavery," and its legislation may operate directly on individuals, whether their acts have the sanction of state authority or not. The question, then, was whether the Thirteenth Amendment vested in Congress the authority to require that all persons shall have equal accommodations in inns, public conveyances, and places of public amusement. The Court conceded that the amendment established "universal civil and political freedom throughout the United States" by abolishing slavery, but it denied that distinctions based on race or color abridged that freedom. Where, Bradley asked, does slavery, servitude, or badges of either arise from race discrimination by private parties? "The thirteenth amendment," he declared, "has respect, not to distinctions of race, or class, or color, but to slavery." The act of the owner of an inn, or theater, or transportation facility in refusing accommodation might inflict an ordinary civil injury, recognizable by state law, but not slavery or an incident of it. "It would be running the slavery argument into the ground," Bradley insisted, "to make it apply to every act of discrimination which a person may see fit to make" as to his guests, or those he will take in his coach, or those he will admit to his concert. On the theory that mere discrimination on account of race or color did not impose badges of slavery, the Court held that the Thirteenth Amendment, like the Fourteenth, did not validate the Civil Rights Act of 1875.
The case involved questions of law, history, and public policy. Harlan, dissenting, had the weight of argument as to all three, but Bradley had the weight of numbers. It was an 8–1 decision, and the eight scarcely bothered to answer the dissenter. Ignoring him might have been more discreet than trying to rebut him. He met their contentions head-on, starting with a strenuous objection to their parsimonious interpretation of national powers under the Thirteenth and Fourteenth Amendments, both of which expressly made affirmative grants of power. By contrast, Harlan demonstrated, the Court had generously construed the Constitution to support congressional enactments on behalf of slaveholders. The fugitive slave acts, which operated on private individuals, were based on a clause in the Constitution, Article 4, section 2, paragraph 3, that did not empower Congress to legislate at all. The clause merely provided that a fugitive slave be delivered up upon the claim of his owner, yet the Court sustained the acts of 1793 (prigg v. pennsylvania, 1842) and of 1850 (ableman v. booth, 1859), implying a national power to enforce a right constitutionally recognized. The Thirteenth Amendment, as the majority admitted, established a constitutional right: civil freedom for citizens throughout the nation. And, as the majority admitted, the abolition of slavery reached the badges of servitude, so that the freedmen would have the same rights as white men. Similarly, the act of 1875 reached badges of servitude, because it, like the amendments to the Constitution, aimed at erasing the assumption that blacks were racially inferior. For Harlan, racial discrimination was a badge of servitude. Bradley had distinguished the act of 1866 from the act of 1875 on the ground that the earlier statute aimed at protecting rights that only the states might deny. Harlan replied that citizens regardless of race were entitled to the same civil rights.
Harlan also demonstrated that the rights allegedly violated by purely private parties were denied by individuals and corporations that exercised public functions and wielded power and authority under the state. Relying on a broad concept of state action, he sought to prove that the parties whom the majority regarded as private were, in contemplation of law, public or quasi-public. A railroad corporation, an innkeeper, and a theater-manager had denied accommodations to black citizens. Railroads and streetcars were common carriers, that is, they were public highways, performing state functions; they were public conveyances which, though privately owned, had been established by state authority for a public use and were subject to control by the state for the public benefit. Free citizens of any race were entitled to use such facilities. Similarly, the common law defined innkeepers as exercising a quasi-public employment that obligated them to take in all travelers, regardless of race. Theaters were places of public amusement, licensed by the public, of which the "colored race is a part," and theaters were clothed with a public interest, in accord with munn v. illinois (1877). Congress had not promiscuously sought to regulate the entire body of civil rights nor had it entered the domain of the states by generally controlling public conveyances, inns, or places of public amusement. Congress had simply declared that in a nation of universal freedom, private parties exercising public authority could not discriminate on ground of race; in effect the statute reached state instrumentalities whose action was tantamount to state action.
Under the Thirteenth Amendment, Congress could reach badges of servitude; under the Fourteenth, it could reach racial discrimination by state agencies. Contrary to the Court's assertion, Congress had not outlawed racial discrimination imposed by purely private action. It had aimed at such discrimination only in public places chartered or licensed by the state, in violation of the rights of citizenship which the Fourteenth Amendment affirmed. The amendment's fifth section empowered Congress to pass legislation enforcing its affirmative as well as its prohibitory clauses. Courts, in the normal exercise of judicial review, could hold unconstitutional state acts that violated the prohibitory clauses. Accordingly, section five was not restricted to merely corrective or remedial national legislation. Congress, not the Court, said Harlan, citing mcculloch v. maryland (1819), might choose the means best adopted to implementing the ends of the two amendments. Harlan insisted that Congress
may, without transcending the limits of the constitution, do for human liberty and the fundamentals 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 his fugitive slave, were legitimate exertions of an implied power to protect and enforce a right recognized by the constitution, why shall 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, assumed to abridge the supreme law of the land.
Some old abolitionists, deploring a ruling that returned the freedmen to a "reign of contempt, injury, and ignominy," denounced the "new dred scott decision," but most were resigned to defeat. Racial segregation was common throughout the country. Not surprisingly The Nation magazine, which approved of the decision, observed that the public's general unconcern about the decision indicated "how completely the extravagant expectations as well as the fierce passions of the war have died out." The Court served "a useful purpose in thus undoing the work of Congress," said the New York Times, and Harper's Weekly agreed. Public opinion supported the Court, but justice and judicial craftsmanship were on the side of Harlan, dissenting.
Leonard W. Levy
Westin, Alan F. 1962 The Case of the Prejudiced Doorkeeper. Pages 128–144 in Garraty, John A., Quarrels That Have Shaped the Constitution. New York: Harper & Row.