134 



CIVIL RIGHTS. 



diction of other States. And such must be their con- 

 stitutional right in their own State, unless the recent 

 amendments be "splendid baubles." thrown out to 

 delude those who deserved fair and generous treat- 

 ment at the hands of the nation. Citizenship in this 

 country necessarily imports equality of civil rights 

 among citizens of every race in the same State. It is 

 fundamental in American citizenship that, in respect of 

 such rights, there shall be no discrimination by the 

 State, or its officers, or by individuals or corporations 

 exercising public functions or authority, against any 

 citizen because of his race or previous condition of 

 servitude. 



After repeating that the opinion of the ma- 

 jority proceeds on the ground that the power 

 of Congress to legislate for the protection of 

 the rights and privileges secured by the four- 

 teenth amendment can not be brought into 

 activity except with the view, and as it may 

 become necessary, to correct and annul State 

 laws and State proceedings hostile to such 

 rights and privileges, and that, in the absence 

 of State laws or State action adverse to such 

 rights and privileges, the nation may not ac- 

 tively interfere for their protection and secu- 

 rity, Justice Harlan adds : 



If the grant to colored citizens of the United States 

 of citizenship in their respective States, imports ex- 

 emption from race discrimination, in their States, in 

 respect of the civil rights belonging to citizenship, 

 then, to hold that the amendment remits that right to 

 the States for their protection : primarily, and stays 

 the hands of the nation, until it is assailed by State 

 laws or State proceedings, is to adjudge that the 

 amendment, so far from enlarging the powers of 

 Congress as we have heretofore said it did not only 

 curtails them, but reverses the policy -which the Gen- 

 eral Government has pursued from its very organiza- 

 tion. Such an interpretation of the amendment is a 

 denial to Congress ot the power, by appropriate legis- 

 lation, to enforce one of its provisions. In view of 

 the circumstances under which the recent amendments 

 were incorporated into the Constitution, and especial- 

 ly in view of the peculiar character of the new rights 

 they created and secured, it ought not to be presumed 

 that the General Government has abdicated its author- 

 ity, by national legislation, direct and primary in its 

 character, to guard and protect privileges and immu- 

 nities secured by that instrument. Such an interpre- 

 tation of the Constitution ought not to be accepted if 

 it be possible to avoid it. Its acceptance would lead 

 to this anomalous result : that whereas, prior to the 

 amendments, Congress, with the sanction of this court, 

 passed the most stringent laws operating directly 

 and primarily upon States and their officers and agents, 

 as well as upon individuals in vindication of slavery 

 and the right of the master, it may not now, by legis- 

 lation of a like primary and direct character, guard, 

 protect, and secure the freedom established, and the 

 most essential right of the citizenship granted, by the 

 constitutional amendments. I venture, with all re- 

 spect for the opinion of others, to insist that the na- 

 tional Legislature may, without transcending the limits 

 of the Constitution, do for human liberty and the 

 fundamental rights of American citizenship what it 

 did, with the sanction of this court, for the protection 

 of slavery and the rights of the masters of fugitive 

 slaves. If fugitive-slave laws, providing modes and 

 prescribing penalties, whereby the master could seize 

 and recover his fugitive slave, were legitimate exer- 

 tions 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 consti- 

 tutional provision, granting citizenship it may not, 

 by means of direct legislation, bring the whole "power 

 ot this nation to bear upon States and their officers, 



and upon such individuals and corporation? exercising 

 public functions as assume to abridge, impair, or 

 deny rights confessedly secured by the supreme law 

 of the land? 



Justice Harlan further maintained that the 

 decision of the Court was erroneous, even con- 

 ceding that Congress has power to legislate 

 only against hostile State action. He pointed 

 out that the court had held, in Ex-parte Vir- 

 ginia (100 U. S. Reports), that the fourteenth 

 amendment means that no agency of the State, 

 or of the officers or agents by whom its au- 

 thority is exercised, shall deny to any person 

 equal protection of the laws, and then said: 

 "In every material sense applicable to the 

 practical enforcement of the fourteenth amend- 

 ment, railroad corporations, keepers of inns, 

 and managers of places of public amusement, 

 are agents of the State, because amenable, in 

 respect of their public duties and functions, to 

 public regulation. It seems to me that, within 

 the principle settled in Ex-parte Virginia, a 

 denial, by these instrumentalities of the State, 

 to the citizen, because of his race, of that equal- 

 ity of civil rights secured to him by law, is a 

 denial by the State within the meaning of the 

 fourteenth amendment. If it be not, then that 

 race is left, in respect of the civil rights under 

 discussion, practically at the mercy of corpora- 

 tions and individuals wielding power under 

 public authority." 



Justice Harlan conceded that Congress has 

 no authority to regulate the social rights of 

 men and races in the community, but he 

 claimed that the rights covered by the law 

 of 1875 were not social but legal. He set 

 forth his views on this point as follows: 



I agree that Government has nothing to do with 

 social, as distinguished from technically legal, rights 

 of individuals. No government ever has brought, or 

 ever can bring, its people into social intercourse 

 against their wishes, "vv hether one person will per- 

 mit or maintain social relations with another is a 

 matter with which government has no concern. I 

 agree that if one citizen chooses not to hold social in- 

 tercourse with another, even upon grounds of race, 

 he is not and can not be made amenable to the law 

 for his conduct in that regard ; for no legal right of 

 a citizen is violated by the refusal of others to main- 

 tain merely social relations with him. What 1 affirm 

 is that no State, nor the officers of any State, nor any 

 corporation or individual wielding po'wer under State 

 authority for the public benefit or the public conven- 

 ience, can, consistently either with the freedom es- 

 tablished by the fundamental law, or with that equal- 

 ity of civil rights which now belongs to every citizen, 

 discriminate against freemen or citizens, in their civil 

 rights, because of their race, or because they once 

 labored under disabilities imposed upon them as a 

 race. The rights which Congress by the act of 1875 

 endeavored to secure and protect are legal, not social, 

 rights. The right, for instance, of a colored citizen 

 to use the accommodations of a public highway, upon 

 the same terms as are permitted to white citizens, is 

 no more a social right than his right, under the law, 

 to use the public streets of a city, or a town, or a turn- 

 pike-road, or a public market, or a post-office ? or his 

 right to sit in a public building with others, of what- 

 ever race, for the purpose of hearing the political 

 questions of the day discussed. Scarcely a day pass- 

 es without our seeing in this court-room citizens of 

 the white and black races sitting side by side, watch- 



