CIVIL RIGHTS. 



133 



may be exerted by legislation of a direct and primary 

 character, for the eradication not simply of the in- 

 stitution, but of its badges and incidents, are propo- 

 sitions which ought to be deemed indisputable. They 

 lie at the very foundation of the Civil-Rights Act of 

 1866. 



"I do not contend," continued Justice Ilar- 

 lan, " that the thirteenth amendment invests 

 Congress with authority, by legislation, to regu- 

 late the entire body of the civil rights which 

 citizens enjoy, or may enjoy, in the several 

 States. But I do hold that since slavery, as 

 the Court has repeatedly declared, was the 

 moving or principal cause of the adoption of 

 that amendment, and since that institution 

 rested wholly upon the inferiority, as a race, 

 of those held in bondage, their freedom neces- 

 sarily involved immunity from, and protection 

 against, all discrimination against them, be- 

 cause of their race, in respect of such civil 

 rights as belong to freemen of other races. 

 Congress, therefore, under its express power 

 to enforce that amendment, by appropriate 

 legislation, may enact laws to protect that 

 people against the deprivation, on account of 

 their race, of any civil rights enjoyed by other 

 freemen in the same State; and such legisla- 

 tion may be of a direct and primary character, 

 operating upon States, their officers and agents, 

 and also upon, at least, such individuals and 

 corporations as exercise public functions and 

 wield power and authority under the State. 

 What has been said is sufficient to show that 

 the power of Congress under the thirteenth 

 amendment is not necessarily restricted to 

 legislation against slavery as an institution up- 

 held by positive law, but may be exerted to 

 the extent, at least, of protecting the race, so 

 liberated, against discrimination, in respect of 

 legal rights belonging to freemen, where such 

 discrimination is based upon race." 

 _ He then contended that the denial to colored 

 citizens of the equal accommodations and privi- 

 leges of hotels, public conveyances, and places 

 of amusement, presents a discrimination on 

 account of color, which is a badge of servi- 

 tude whose imposition Congress is empowered 

 by the thirteenth amendment to prevent. 

 u They are burdens which lay at the very foun- 

 dation of the institution of slavery as it once 

 existed. They are not to be sustained, except 

 upon the assumption that there is still, in this 

 land of universal liberty, a class which may 

 yet be discriminated against, even in respect 

 of rights of a character so essential and so 

 supreme that, deprived of their enjoyment, in 

 common with others, a freeman is not only 

 branded as one inferior and infected, but, in 

 the competitions of life, is robbed of some of 

 the most essential means of existence ; and all 

 this solely because they belong to a particular 

 race which the nation has liberated. The thir- 

 teenth amendment alone obliterated the race- 

 line, so far as all rights fundamental in a state 

 of freedom are concerned." 



Justice Harlan proceeded to maintain that 

 power was given to Congress by the fourteenth 



amendment also to enact such a civil-rights 

 law as that of 1875. He said : 



The assumption that this amendment consists 

 wholly of prohibitions upon State laws and State 

 proceedings in hostility to its provisions, is unauthor- 

 ized by its language. The first clause of the first sec- 

 tion ** all persons born or naturalized in the United 

 States, and subject to the jurisdiction thereof, are citi- 

 zens of the United States, and of the State wherein 

 they reside" is of a distinctly affirmative character. 

 In its application to the colored race, previously liber- 

 ated, it created and granted, as well citizenship of the 

 United States as citizenship of the State in which 

 they respectively resided. It introduced all of that 

 race whose ancestors had been imported and sold as 

 slaves, at once, into the political community known 

 as the "people of the United States." They be- 

 came, instantly, citizens of the United States, and of 

 their respective States. Further, they_ were brought, 

 by this supreme act of the nation, within the direct 

 operation of that provision of the Constitution which 

 declares that " the citizens of each State shall be en- 

 titled to all privileges and immunities of citizens in 

 the several States" (Art. IV, sec. 2). 



The citizenship thus acquired, by that race, in vir- 

 tue of an affirmative grant by the nation, may be pro- 

 tected, not alone by the judicial branch of the Govern- 

 ment, but by congressional legislation of a primary 

 direct character ; this, because the power of Congress 

 is not restricted to the enforcement of prohibitions 

 upon State laws or State action. It is, in terms dis- 

 tinct and positive, to enforce " the provision* of thie 

 article" of amendment; not simply those of a pro- 

 hibitive character, but the provisions all of the pro- 

 visions affirmative and prohibitive, of the amend- 

 ment. It is, therefore, a grave misconception to sup- 

 pose that the fifth section of the amendment has ref- 

 erence exclusively to express prohibitions upon State 

 laws or State action. If any right was created by 

 that amendment, the grant of power, through appro- 

 priate legislation, to enforce its provisions, authorizes 

 Congress, by means of legislation, operating through- 

 out the entire Union, to guard, secure, and protect 

 that right. . . . 



Although this Court has wisely forborne any at- 

 tempt, by a comprehensive definition, to indicate all 

 of the privileges and immunities to which the citizens 

 of each State are entitled, of right, to enjoy in the 

 several States, 1 hazard nothing, in view ot former 

 adjudications, in saying that no State can sustain her 

 denial to colored citizens of other States, while within 

 her limits^ of privileges or immunities, fundamental 

 in republican citizenship, upon the ground that she 

 accords such privileges and immunities only to her 

 white citizens and withholds them from her colored 

 citizens. The colored citizens of other States, within 

 the jurisdiction of that State, could claim, under the 

 Constitution, every privilege and immunity which 

 that State secures to her white citizens. ... No 

 State may, by discrimination against a portion of its 

 own citizens of a particular race, in respect of privi- 

 leges and immunities fundamental in citizenship, im- 

 pair the constitutional right of citizens of other States, 

 of whatever race, to enjoy in that State all such privi- 

 leges and immunities as are there accorded to her 

 most favored citizens. A colored citizen of Ohio or 

 Indiana, being in the jurisdiction of Tennessee, is en- 

 titled to enjoy any privilege or immunity, funda- 

 mental in citizenship, which is given to citizens of 

 the white race in the latter State. It is not to be sup- " 

 posed that any one will controvert this proposition. 



But what was secured to colored citizens of the 

 United States as between them and their respective 

 States by the grant to them of State citizenship ? 

 With what rights, privileges, or immunities did this 

 grant from the nation invest them ? There is one, if 

 there be no others exemption from race discrimina- 

 tion in respect of any civil right belonging to citizens 

 of the white race in the same State. That,' surely, is 

 their constitutional privilege when within the juris- 



