1900. ] HASTINGS—POLICE POWER OF THE STATE. 491 
national legislature may, without transcending the limits of the constitu- 
tion, do for human liberty and the fundamental rights of American citi- 
zenship, 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 
implied power to protect and enforce a right, recognized by the constitu- 
tion, 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 the nation to bear upon states and their officers and upon 
such individuals and corporations exercising public functions as assume 
to abridge or impair or deny rights confessedly secured by the supreme 
law of the land.” 
Of course the objection to this is that the slaughter-house cases 
had held that the rights covered by the laws in question were so 
far from being confessedly guaranteed by the constitution that they 
were not guaranteed by it all. That Judge Bradley, who had so 
strongly dissented from the conclusion reached in the slaughter- 
house cases should now be so strenuously supporting it, shows the 
change a decade of experience and reflection had wrought in his 
mind. It seems remarkable that Judge Harlan should have ven- 
tured to assert that the rights of the negro to use of iniis and public 
resorts without discrimination on account of race rests on as ex- 
press a constitutional warrant as did the master’s right to reclaim 
his fugitive slave, and should say this without asking that the 
Slaughter-House cases be overruled, at least in all that portion of 
them defining what are and are not “privileges and immunities of 
citizens of the United States.’’ 
The truth is that a different decision by the court on this civil 
rights question, would have had no social effect to take away the 
color bar. The social purpose sought in this legislation, to borrow 
a phrase from Judge O. W. Holmes, was not then shared by the 
people and would not be to-day. There was room for a conserva- 
tive construction that would defeat the law and the court adopted 
it rather than engage in a hopeless struggle to enforce it against 
social habits with which the court’s members in fact sympathized. 
The country has accepted its conclusions, and the inclination to 
attempt any such explicit change of the federal constitution in such 
terms that the court could not avoid it, has long gone by. The 
people of this country as a whole never desired any far-reaching al- 
