Civil Rights Cases, 109 U.S.

3 (1883)

U.S. Supreme Court

Civil Rights Cases, 109 U.S. 3 (1883)
Civil Rights Cases Submitted O tober !erm, 188" #e ided O tober 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!1ect of slaver# and its incidents, and the denial of e2ual accommodations in inns, pu!lic conve#ances, and places of pu!lic amusement .'hich is for!idden !# the sections in 2uestion/, 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.

4. 5or is it decided 'hether the la', as it stands, is operative in the Territories and 6istrict 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 e2ual 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 7An Act to protect all citi"ens in their civil and legal rights.7 18 tat. 884. 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 en1o#ment of the accommodations of the theatre (no'n as the <rand =pera >ouse in 5e' ?or(, 7said 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.7 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 6istrict 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 1ur# 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 1udge allo'ed evidence to go to the 1ur# 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 1udge charged the 1ur#, in su!stance, that, if this 'as the conductor:s bona fide reason for e0cluding the 'oman from the car, the# might ta(e it into consideration on the 2uestion 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 1udges !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 1udgment of the Circuit Court for the 6istrict 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.

The Ro!inson case 'as su!mitted on the !riefs at the last term, on the +th da# of arch, 1888. )age 1*+ ,. . 8 MR. A, T%CB CRA6DB? 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 2uestion 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 7 BC. 1. That all persons 'ithin the 1urisdiction of the ,nited tates shall !e entitled to the full and e2ual en1o#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!1ect 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.7 7 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 en1o#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, Pro ided! 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 1urisdiction shall !e !arred. Cut this provision shall not appl# to criminal proceedings, either under this act or the criminal la' of an# tate9 and "ro ided fur#$er! that a 1udgment for the penalt# in favor of the part# aggrieved, or a 1udgment upon an indictment, shall !e a !ar to either prosecution respectivel#.7 Are these sections constitutionalF The first section, 'hich is the principal one, cannot !e fairl# understood 'ithout attending to the last clause, 'hich 2ualifies the preceding part. The essence of the la' is not to declare !roadl# that all persons shall !e entitled to the full and e2ual en1o#ment of the accommodations, advantages, facilities, and privileges of inns, )age 1*+ ,. . 1*

pu!lic conve#ances, and theatres, !ut that such en1o#ment shall not !e su!1ect 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 en1o#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 en1o#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 the eminent 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. Cut the responsi!ilit# of an independent 1udgment 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 75o 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 1urisdiction the e2ual protection of the la's.7 %t is tate action of a particular character that is prohi!ited. %ndividual invasion of individual rights is not the su!1ect 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 in1ures them in life, li!ert# or propert# 'ithout due process of la', or 'hich denies to an# of them the e2ual 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!1ects '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 1udicial 'hen these are

su!versive of the fundamental rights specified in the amendment. )ositive rights and privileges are undou!tedl# secured !# the ;ourteenth Amendment, !ut the# are secured !# 'a# of prohi!ition against tate la's and tate proceedings affecting those rights and privileges, and !# po'er given to Congress to legislate for the purpose of carr#ing such prohi!ition into effect, and such legislation must necessaril# !e predicated upon such supposed tate la's or tate proceedings, and !e directed to the correction )age 1*+ ,. . 12 of their operation and effect. A 2uite full discussion of this aspect of the amendment ma# !e found in Uni#ed Sa#es & Crui's$an'! +2 ,. . 4-29 Vir(inia & Ri es! 1** ,. . 818, and E) "ar#e Vir(inia! 1** ,. . 88+. An apt illustration of this distinction ma# !e found in some of the provisions of the original Constitution. Ta(e the su!1ect of contracts, for e0ample. The Constitution prohi!ited the tates from passing an# la' impairing the o!ligation of contracts. This did not give to Congress po'er to provide la's for the general enforcement of contracts, nor po'er to invest the courts of the ,nited tates 'ith 1urisdiction over contracts, so as to ena!le parties to sue upon them in those courts. %t did, ho'ever, give the po'er to provide remedies !# 'hich the impairment of contracts !# tate legislation might !e counteracted and corrected, and this po'er 'as e0ercised. The remed# 'hich Congress actuall# provided 'as that contained in the 24th section of the Audiciar# Act of 178+, 1 tat. 8, giving to the upreme Court of the ,nited tates 1urisdiction !# 'rit of error to revie' the final decisions of tate courts 'henever the# should sustain the validit# of a tate statute or authorit# alleged to !e repugnant to the Constitution or la's of the ,nited tates. C# this means, if a tate la' 'as passed impairing the o!ligation of a contract and the tate tri!unals sustained the validit# of the la', the mischief could !e corrected in this court. The legislation of Congress, and the proceedings provided for under it, 'ere corrective in their character. 5o attempt 'as made to dra' into the ,nited tates courts the litigation of contracts generall#, and no such attempt 'ould have !een sustained. 3e do not sa# that the remed# provided 'as the onl# one that might have !een provided in that case. )ro!a!l# Congress had po'er to pass a la' giving to the courts of the ,nited tates direct 1urisdiction over contracts alleged to !e impaired !# a tate la', and under the !road provisions of the act of March 8d 1874, ch. 187, 18 tat. -7*, giving to the circuit courts 1urisdiction of all cases arising under the Constitution and la's of the ,nited tates, it is possi!le that such 1urisdiction no' e0ists. Cut under that, or an# other la', it must appear as )age 1*+ ,. . 18 'ell !# allegation, as proof at the trial, that the Constitution had !een violated !# the action of the tate legislature. ome o!no0ious tate la' passed, or that might !e passed, is necessar# to !e assumed in order to la# the foundation of an# federal remed# in the case, and for the ver# sufficient reason that the constitutional prohi!ition is against S#a#e la*s impairing the o!ligation of contracts. And so, in the present case, until some tate la' has !een passed, or some tate action through its officers or agents has !een ta(en, adverse to the rights of citi"ens sought to !e protected !# the ;ourteenth Amendment, no legislation of the ,nited tates under said amendment, nor an# proceeding under such legislation, can !e called into activit#, for the prohi!itions of the amendment are against tate la's and acts done under tate authorit#. =f course, legislation ma#, and should, !e provided in advance to meet the e0igenc# 'hen it arises,

!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 e2ual protection of the la's is prohi!ited !# the amendment, therefore Congress ma# esta!lish la's for their e2ual 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*+ ,. . 1adopt 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 2uestion 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+#o to 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 'rong committed. %t applies e2uall# to cases arising in tates 'hich have the 1ustest 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 1urisprudence, 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 e2ual 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 of life, 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 e2ual 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

upon the assumption that, if the tates are for!idden to legislate or act in a particular 'a# on a particular su!1ect, and po'er is conferred upon Congress to enforce the prohi!ition, this gives Congress po'er to legislate generall# upon that su!1ect, and not merel# po'er to provide modes of redress against such tate legislation or action. The assumption is certainl# unsound. %t is repugnant to the Tenth Amendment of the Constitution, 'hich declares that po'ers not delegated to the ,nited tates !# the Constitution, nor prohi!ited !# it to the tates, are reserved to the tates respectivel# or to the people. 3e have not overloo(ed the fact that the fourth section of the act no' under consideration has !een held !# this court to !e constitutional. That section declares 7that no citi"en, possessing all other 2ualifications 'hich are or ma# !e prescri!ed !# la', shall !e dis2ualified for service as grand or petit 1uror in an# court of the ,nited tates, or of an# tate, on account of race, color, or previous condition of servitude, and an# officer or other person charged 'ith an# dut# in the selection or summoning of 1urors 'ho shall e0clude or fail to summon an# citi"en for the cause aforesaid, shall, on conviction thereof, !e deemed guilt# of a misdemeanor, and !e fined not more than five thousand dollars.7 %n E) "ar#e Vir(inia! 1** ,. . 88+, it 'as held that an indictment against a tate officer under this section for e0cluding persons of color from the 1ur# list is sustaina!le. Cut a moment:s attention to its terms 'ill sho' that the section is entirel# corrective in its character. 6is2ualifications for service on 1uries are onl# created !# the la', and the first part of the section is aimed at certain dis2ualif#ing la's, namel#, those 'hich ma(e mere race or color a dis2ualification, and the second clause is directed against those 'ho, assuming to use the authorit# of the tate government, carr# into effect such a rule of dis2ualification. %n the &irginia case, the tate, through its officer, enforced a rule of dis2ualification 'hich the la' 'as intended to a!rogate and counteract. 3hether the statute !oo( of the tate actuall# laid do'n an# such rule of dis2ualification or not, the tate, through its officer, enforced such a rule, and it is against such tate action, through its officers and agents, that the last clause of the section is directed. )age 1*+ ,. . 16 This aspect of the la' 'as deemed sufficient to divest it of an# unconstitutional character, and ma(es it differ 'idel# from the first and second sections of the same act 'hich 'e are no' considering. These sections, in the o!1ectiona!le features !efore referred to, are different also from the la' ordinaril# called the 7Civil Rights Cill,7 originall# passed April +th, 1866, 1- tat. 27, ch. 81, and reenacted 'ith some modifications in sections 16, 17, 18, of the Bnforcement Act, passed a# 81st, 187*, 16 tat. 1-*, ch. 11-. That la', as reenacted, after declaring that all persons 'ithin the 1urisdiction of the ,nited tates shall have the same right in ever# tate and Territor# to ma(e and enforce contracts, to sue, !e parties, give evidence, and to the full and e2ual !enefit of all la's and proceedings for the securit# of persons and propert# as is en1o#ed !# 'hite citi"ens, and shall !e su!1ect to li(e punishment, pains, penalties, ta0es, licenses and e0actions of ever# (ind, and none other, an# la', statute, ordinance, regulation or custom to the contrar# not'ithstanding, proceeds to enact that an# person 'ho, under color of an# la', statute, ordinance, regulation or custom, shall su!1ect, or cause to !e su!1ected, an# inha!itant of an# tate or Territor# to the deprivation of an# rights secured or protected !# the preceding section .a!ove 2uoted/, or to different punishment, pains, or penalties,

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!1ect 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 7an# la', statute, ordinance, regulation or custom to the contrar# not'ithstanding,7 '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!1ect )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 Cill 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 !# a contract 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 un1ust 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 1udicial 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 in1ured 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# !e vindicated !# 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 1uror9 he ma#, !# force or fraud, interfere 'ith the en1o#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 in1ure 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 un1ust 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.

=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!1ect, 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!1ects specified in ever# detail, and the conduct and transactions of individuals in respect thereof. Cut 'here a su!1ect 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!1ect, the po'er given is limited !# its o!1ect, 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 2uestion cannot !e sustained !# an# grant of legislative po'er made to Congress !# the ;ourteenth Amendment. That amendment prohi!its the tates from den#ing to an# person the e2ual 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 2uestion, 'ithout an# reference to adverse tate legislation on the su!1ect, )age 1*+ ,. . 1+ declares that all persons shall !e entitled to e2ual 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 e2ual accommodations and privileges. This is not corrective legislation9 it is primar# and direct9 it ta(es immediate and a!solute possession of the su!1ect of the right of admission to inns, pu!lic conve#ances, and places of amusement. %t supersedes and displaces tate legislation on the same su!1ect, 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!1ect is not no' the 2uestion. 3hat 'e have to decide is 'hether such plenar# po'er has !een conferred upon Congress !# the ;ourteenth Amendment, and, in our 1udgment, it has not. 3e have discussed the 2uestion presented !# the la' on the assumption that a right to en1o# e2ual 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 a different 2uestion '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 6istrict of Colum!ia, 'hich are su!1ect 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 6istrict is not a 2uestion for consideration in the cases !efore us, the# all

!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 2uestion 'hich is not no' !efore us, as the sections in 2uestion are not conceived in an# such vie'. )age 1*+ ,. . 2* Cut the po'er of Congress to adopt direct and primar#, as distinguished from corrective, legislation on the su!1ect in hand is sought, in the second place, from the Thirteenth Amendment, 'hich a!olishes slaver#. This amendment declares 7that 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!1ect to their 1urisdiction,7 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. C# 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#. Cut 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 e2ual accommodations and privileges in all inns, pu!lic conve#ances, and places of amusement, the argument !eing that the denial of such e2ual accommodations and privileges is, in itself, a su!1ection to a species of servitude 'ithin the meaning of the amendment. Conceding the ma1or 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!1ect 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.

%n a ver# a!le and learned presentation of the cognate 2uestion 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 ine2ualities 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#. Cut 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 ade2uate po'er to for!id an# such servitude from !eing e0acted. Cut 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!no0ious to the prohi!itions of the ;ourteenth Amendment is another 2uestion. Cut 'hat has it to do 'ith the 2uestion of slaver#F %t ma# !e that, !# the Clac( 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 the servitude itself. A la' of that (ind could not have an# such o!1ect no', ho'ever 1ustl# 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 Cill 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 en1o#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 in2uire. %t is referred to for the purpose of sho'ing that, at that time .in 1866/, Congress did

not assume, under the authorit# given !# the Thirteenth Amendment, to ad1ust '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 en1o#ment or deprivation of 'hich constitutes the essential distinction !et'een freedom and slaver#. )age 1*+ ,. . 28 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 e2ual 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 e2ual 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# 2uestion 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 to the prohi!itions of the ;ourteenth Amendment 'hich are not, in an# 1ust 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*+ ,. . 2avocations 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!1ection 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 e2ual 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 e2ual 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

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 1ustl# regarded as imposing an# !adge of slaver# or servitude upon the applicant, or onl# as inflicting an ordinar# civil in1ur#, properl# cogni"a!le !# the la's of the tate and presuma!l# su!1ect to redress !# those la's until the contrar# appearsF After giving to these 2uestions 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!1ectiona!le persons 'ho in good faith appl# for them. %f the la's themselves ma(e an# un1ust 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 a citi"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#, en1o#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 en1o#ed !# 'hite citi"ens, or !ecause he 'as su!1ected to discriminations in the en1o#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 en1o#ment of e2ual 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 2uestion 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

)age 1*+ ,. . 26 Railroad Co%"any! the 1udgments 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 7An Act to protect all citi"ens in their civil and legal rights,7 are unconstitutional and void, and that 1udgment should !e rendered upon the several indictments in those cases accordingl#. And i# is so ordered& MR. A, 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. 7%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.7 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'. C# 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 re2uiring, 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 e2ualit# 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 e2ual en1o#ment of the accommodations, advantages, facilities, and privileges of inns, pu!lic conve#ances, and

theatres, !ut that such en1o#ment shall not !e su!1ect 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 en1o#ed !# 'hite persons, and vice versa. The court ad1udges, % 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, 7is at all times,7 said this court in Fle#+$er & Pe+'! 6 Cr. 128, 7a 2uestion 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 1udge feels a clear and strong conviction of their incompati!ilit# 'ith each other.7 More recentl#, in Sin'in( Fund Cases! ++ ,. . 718, 'e saidE 7%t is our dut#, 'hen re2uired in the regular course of 1udicial 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.7 Cefore 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 7no person held to service or la!or in one tate, under the la's thereof, escaping into another, shall, in conse2uence 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.7 ,nder the authorit# of this clause, Congress passed the ;ugitive lave Da' of 17+8, esta!lishing a mode for the recover# of fugitive slaves and prescri!ing a penalt# against an# person 'ho should (no'ingl# and 'illingl#

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. %n Pri(( & Co%%on*eal#$ of Pennsyl ania! 16 )et. 48+, this court had occasion to define the po'ers and duties of Congress in reference to fugitives from la!or. pea(ing !# MR. A, 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 ade2uate for its protection 'hen another construction e2uall# 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 7The fundamental principle, applica!le to all cases of this sort, 'ould seem to !e that, 'hen the end is re2uired the means are given, and 'hen the dut# is en1oined, the a!ilit# to perform it is contemplated to e0ist on the part of the functionar# to 'hom it is entrusted.7 Again, 7%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!1ectiona!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 7

The act of 17+8 'as, upon these grounds, ad1udged 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!1ect 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 1urisdictions9 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*+ ,. . 8* of the general government in the premises 'as, !# 1udicial 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!1ect of fugitive slaves, to the e0clusion of the tates, 'ould !e a dangerous encroachment on tate sovereignt#. Cut to such suggestions, this court turned a deaf ear, and ad1udged that primar# 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+8, 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#us for the enforcement of its provisions, and commanded all good citi"ens to assist in its prompt and efficient e0ecution 'henever their services 'ere re2uired 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 his fugitive slave. And this court, in Able%an & .oo#$! 21 >o'. 4*6, ad1udged it to !e 7in all of its provisions, full# authori"ed !# the Constitution of the ,nited tates.7 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'. 8++. That case 'as instituted in a circuit court of the ,nited tates !# 6red cott, claiming to !e a citi"en of Missouri, the defendant !eing a citi"en of another tate. %ts o!1ect '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*+ ,. . 81 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 7citi"en7 is used in the Constitution of the ,nited tates.

%n determining that 2uestion, the court instituted an in2uir# 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 Critish government. The result 'as a declaration !# this court, spea(ing !# Chief Austice Tane#, that the legislation and histories of the times, and the language used in the 6eclaration of %ndependence, sho'ed 7that 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 instrument97 that 7the# 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 1ustl# and la'full# !e reduced to slaver# for his !enefit97 that he 'as 7!ought and sold, and treated as an ordinar# article of merchandise and traffic, 'henever a profit could !e made !# it97 and, that 7this 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.7 The 1udgment of the court 'as that the 'ords 7people of the ,nited tates7 and 7citi"ens7 meant the same thing, !oth descri!ing 7the political !od# 'ho, according to our repu!lican institutions, form the sovereignt# and hold the po'er and conduct the government through their representatives97 that 7the# are 'hat 'e familiarl# call the :sovereign people,: and )age 1*+ ,. . 82 ever# citi"en is one of this people and a constituent mem!er of this sovereignt#97 !ut that the class of persons descri!ed in the plea in a!atement did not compose a portion of this people, 'ere not 7included, 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 "ri ile(es *$i+$ #$a# ins#ru%en# "ro ides for and se+ures #o +i#i/ens of #$e Uni#ed S#a#es12 #$a#!

7on the contrar#, the# 'ere at that time considered as a su!ordinate and inferior class of !eings 'ho had !een su!1ugated !# the dominant race and, 'hether emancipated or not, #et remained su!1ect 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.7 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 7neither 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!1ect to their 1urisdiction.7 %ts second section declares that 7Congress shall have po'er to enforce this article !# appropriate legislation.7 This amendment 'as follo'ed !# the Civil Rights Act of April +, 1866, 'hich, among other things, provided that 7all persons !orn in the ,nited tates, and not su!1ect to an# foreign po'er, e0cluding %ndians not ta0ed, are here!# declared to !e citi"ens of the ,nited tates.7 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 18-8, in 'hich Congress declared 7that 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*+ ,. . 88 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!1ect to the la's of the ,nited tates.7 %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. Cut, in the vie' 'hich % ta(e of the present case, it is not necessar# to e0amine this 2uestion. 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

!# the most civili"ed portion of the 'hite race at the time of the adoption of the Constitution GG 7no rights 'hich the 'hite man 'as !ound to respect,7 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%"lied from the recognition of that right in the national Constitution. Cut the po'er conferred !# the Thirteenth Amendment does not rest upon implication or )age 1*+ ,. . 8inference. 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+8 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#. Cut 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 and protect rights conferred or guaranteed !# the Constitution. Uni#ed S#a#es & Reese! +2 ,. . 21-9 S#rauder & ,es# Vir(inia! 1** ,. . 8*8. That doctrine ought not no' to !e a!andoned 'hen the in2uir# 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#ion resting upon distinctions of race and upheld !# positive la'. M# !rethren admit that it esta!lished and decreed universal +i il freedo% throughout the ,nited tates. Cut 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 en1o#ment of those fundamental rights 'hich, !# universal concession, inhere in a state of freedomF )age 1*+ ,. . 84

>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 Pennsyl ania! repeated in S#rauder & ,es# Vir(inia! to protect the freedom esta!lished, and conse2uentl#, to secure the en1o#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!se2uentl# received from the ;ourteenth Amendment, after the adoption of 'hich it 'as reenacted 'ith some additions, m# !rethren do not consider it necessar# to in2uire. Cut % 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 en1o#ed !# 'hite citi"ens9 that, under the Thirteenth Amendment, Congress has to do 'ith slaver# and )age 1*+ ,. . 86 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 2uestion 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 en1o#, or ma# en1o#, in the several tates. Cut % hold that, since slaver#, as the court has repeatedl# declared, Slau($#er$ouse Cases! 16 3all. 869 S#rauder ,es# Vir(inia! 1** ,. . 8*8, '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.

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!1ecting 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*+ ,. . 87 Cases said 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 re2uired 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. 88 ,. . 47. Can there !e an# dou!t that all such enactments might have !een reached !# direct legislation upon the part of Congress under 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 in2uire '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% Na i(a#ion Co& & Mer+$an#s0 .an'! 6 >o'. 8--, this court, spea(ing !# Mr. Austice 5elson, said that a common carrier is 7in 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.7 To the same effect is Munn & Illinois! +- ,. . 118. %n Ol+o## & Su"er isor! 16 3all. 678, it 'as ruled that )age 1*+ ,. . 88 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,

or 'hat is the agenc#, the function performed is #$a# of #$e S#a#e1 that, 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$i" of 4ueensbury & Cul er! 1+ 3all. 88, it 'as said that a municipal su!scription of railroad stoc( 'as in aid of the construction and maintenance of a pu!lic high'a#, and for the promotion of a pu!lic use. Again, in To*ns$i" of Pine 5ro e & Tal+o##!1+ 3all. 666E 7Though the corporation IrailroadJ 'as private, its 'or( 'as pu!lic, as much so as if it 'ere to !e constructed !# the tate.7 To the li(e effect are numerous ad1udications in this and the tate courts 'ith 'hich the profession is familiar. The upreme Audicial 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 7The 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 is in trust for the pu!lic.7 %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 7%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*+ ,. . 8+ 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.7 %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 ad1udged cases is that a railroad corporation is a governmental agenc#, created primaril# for pu!lic purposes and su!1ect 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

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. 7)ersonal li!ert# consists,7 sa#s Clac(stone, 7in 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'.7 Cut 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 en1o#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 7inn7 has a technical legal signification. %t means, in the act of 1874, 1ust 'hat it meant at common la'. A mere private !oarding house is not an inn, nor is its (eeper su!1ect to the responsi!ilities, or entitled to the privileges, of a common inn(eeper. 7To 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.7 Redfield on Carriers, etc., H 7. a#s Audge tor#E 7An 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.7 7 tor# on Cailments HH -74G-76.7 %n Re) & I ens! 7 Carrington @ )a#ne 218, 82 B.C.D. -+, the court, spea(ing !# Mr. Austice Coleridge, saidE

7An 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.7 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$ird& As to places of pu!lic amusement. %t ma# !e argued that the managers of such places have no duties to perform 'ith 'hich the pu!lic are, in an# legal sense, concerned, or 'ith 'hich the pu!lic have an# right to interfere, and that the e0clusion of a !lac( man from a place of pu!lic amusement on account of his race, or the denial to him on that ground of e2ual accommodations at such places, violates no legal right for the vindication of 'hich he ma# invo(e the aid of the courts. M# ans'er is that places of pu!lic amusement, 'ithin the meaning of the act of 1874, are such as are esta!lished and maintained under direct license of the la'. The authorit# to esta!lish and maintain them comes from the pu!lic. The colored race is a part of that pu!lic. The local government granting the license represents them as 'ell as all other races 'ithin its 1urisdiction. A license from the pu!lic to esta!lish a place of pu!lic amusement imports in la' e2ualit# of right at such places among all the mem!ers of that pu!lic. This must !e so unless it !e GG 'hich % den# GG that the common municipal government of all the people ma#, in the e0ertion of its po'ers, conferred for the !enefit of all, discriminate or authori"e discrimination against a particular race solel# !ecause of its former condition of servitude. % also su!mit, 'hether it can !e said GG in vie' of the doctrines of this court as announced in Munn & S#a#e of Illinois! )age 1*+ ,. . -2 +- ,. . 118, and reaffirmed in Pei' & C$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 Munn case, the 2uestion '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 "ri a#e "ro"er#y of indi idual +i#i/ens& After 2uoting a remar( attri!uted to Dord Chief Austice >ale, to the effect that, 'hen private propert# is 7affected 'ith a pu!lic interest, it ceases to !e 7uris "ri a#i onl#,7 the court sa#sE 7)ropert# does !ecome clothed 'ith a pu!lic interest 'hen used in a manner to ma(e it of pu!lic conse2uence and affect the communit# at large. 3hen, therefore, one devotes his propert# to a use in 'hich the pu!lic has

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.7 The doctrines of Munn & Illinois have never !een modified !# this court, and % am 1ustified 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 conse2uence and to affect the communit# at large. The la' ma# therefore regulate, to some e0tent, the mode in 'hich the# shall !e conducted, and, conse2uentl#, the pu!lic have rights in respect of such places 'hich ma# !e vindicated !# the la'. %t is conse2uentl# 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*+ ,. . -8 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 conse2uentl#, 'ithout reference to its enlarged po'er under the ;ourteenth Amendment, the act of March 1, 1874, is not, in m# 1udgment, 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. Cefore 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 Aune 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

privileges !elonging to citi"ens, e0cept !# the consent of such tate9 conse2uentl#, 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 of Congress, 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 7the 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 him7 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 7 BC. 1. All persons !orn or naturali"ed in the ,nited tates, and su!1ect to the 1urisdiction 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 1urisdiction the e2ual protection of the la's.7 78 8 8 82 7 BC. 4. That Congress shall have po'er to enforce, !# appropriate legislation, the provisions of this article.7 %t 'as ad1udged in S#rauder & ,es# Vir(inia! 1** ,. . 8*8, and E) "ar#e Vir(inia! 1** ,. . 88+, and m# !rethren concede, that positive rights and privileges 'ere intended to !e secured, and are, in fact, secured, !# the ;ourteenth Amendment. Cut '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 ma1orit# 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

proceedings, activel# interfere for the protection of m# of the rights, privileges, and immunities secured !# the ;ourteenth Amendment. %t is said that such rights, privileges, and immunities are secured !# 'a# of "ro$ibi#ion against tate la's and tate proceedings affecting such rights and privileges, and !# po'er given to Congress to legislate for the purpose of carr#ing su+$ "ro$ibi#ion into effect9 also, that congressional legislation must necessaril# !e predicated upon such supposed tate la's or tate proceedings, and !e directed to the correction of their operation and effect. %n illustration of its position, the court refers to the clause of the Constitution for!idding the passage !# a tate of an# la' impairing the o!ligation of contracts. That clause does not, % su!mit, furnish a proper illustration of the scope and effect of the fifth section of the ;ourteenth Amendment. 5o e0press po'er is given Congress to enforce, !# primar# direct legislation, the prohi!ition upon tate la's impairing the o!ligation of contracts. Authorit# is, indeed, conferred to enact all necessar# and proper la's for carr#ing into e0ecution the enumerated po'ers of Congress and all other po'ers vested !# the Constitution in the government of the ,nited tates or in an# department or officer thereof. And, as heretofore sho'n, there is also, !# necessar# implication, po'er in Congress, !# legislation, to protect a right derived from the national Constitution. Cut a prohi!ition upon a tate is not a po'er in Con(ress or in #$e na#ional (o ern%en#& %t is simpl# a denial of "o*er to the tate. And the onl# mode in 'hich the inhi!ition upon tate la's impairing the o!ligation of contracts can !e enforced is indirectl#, through the courts in suits 'here the parties raise some 2uestion as to the constitutional validit# of such la's. The 1udicial po'er of the ,nited tates e0tends to such suits for the reason that the# are suits arising under the Constitution. The ;ourteenth Amendment presents the first instance in our histor# of the investiture of Congress 'ith affirmative po'er, !# le(isla#ion! to enfor+e an e0press prohi!ition upon the tates. %t is not said that the 7udi+ial po'er of the nation ma# !e e0erted for the enforcement of that amendment. 5o enlargement of the 1udicial po'er 'as re2uired, for it is clear )age 1*+ ,. . -6 that, had the fifth section of the ;ourteenth Amendment !een entirel# omitted, the 1udiciar# could have stric(en do'n all tate la's and nullified all tate proceedings in hostilit# to rights and privileges secured or recogni"ed !# that amendment. The po'er given is, in terms, !# congressional legislation, to enforce the provisions of the amendment. The assumption that this amendment consists 'holl# of prohi!itions upon tate la's and tate proceedings in hostilit# to its provisions is unauthori"ed !# its language. The first clause of the first section GG 7All persons !orn or naturali"ed in the ,nited tates, and su!1ect to the 1urisdiction thereof, are citi"ens of the ,nited tates, and of the tate 'herein the# reside7 GG is of a distinctl# affirmative character. %n its application to the colored race, previousl# li!erated, it created and granted as 'ell citi"enship of the ,nited tates as citi"enship of the tate in 'hich the# respectivel# resided. %t introduced all of that race 'hose ancestors had !een imported and sold as slaves at once into the political communit# (no'n as the 7)eople of the ,nited tates.7 The# !ecame instantl# citi"ens of the ,nited tates and of their respective tates. ;urther, the# 'ere !rought !# this supreme act of the nation 'ithin the direct

operation of that provision of the Constitution 'hich declares that 7the citi"ens of each tate shall !e entitled to all privileges and immunities of citi"ens in the several tates.7 Art. -, H 2. The citi"enship thus ac2uired !# that race in virtue of an affirmative grant from the nation ma# !e protected not alone !# the 1udicial !ranch of the government, !ut !# congressional legislation of a primar# direct character, this !ecause the po'er of Congress is not restricted to the enforcement of prohi!itions upon tate la's or tate action. %t is, in terms distinct and positive, to enforce 7the "ro isions of #$is ar#i+le7 of amendment9 not simpl# those of a prohi!itive character, !ut the provisions GG all of the provisions GG affirmative and prohi!itive, of the amendment. %t is, therefore, a grave misconception to suppose that the fifth section of the amendment has reference e0clusivel# to e0press prohi!itions upon tate la's or tate action. %f an# right 'as created !# that amendment, the )age 1*+ ,. . -7 grant of po'er through appropriate legislation to enforce its provisions authori"es Congress, !# means of legislation operating throughout the entire ,nion, to guard, secure, and protect that right. %t is therefore an essential in2uir# 'hat, if an#, right, privilege or immunit# 'as given, !# the nation to colored persons 'hen the# 'ere made citi"ens of the tate in 'hich the# resideF 6id the constitutional grant of tate citi"enship to that race, of its o'n force, invest them 'ith an# rights, privileges and immunities 'hateverF That the# !ecame entitled, upon the adoption of the ;ourteenth Amendment, 7to all privileges and immunities of citi"ens in the several tates,7 'ithin the meaning of section 2 of article - of the Constitution, no one, % suppose, 'ill for a moment 2uestion. 3hat are the privileges and immunities to 'hich, !# that clause of the Constitution, the# !ecame entitledF To this it ma# !e ans'ered generall#, upon the authorit# of the ad1udged cases, that the# are those 'hich are fundamental in citi"enship in a free repu!lican government, such as are 7common to the citi"ens in the latter tates under their constitutions and la's !# virtue of their !eing citi"ens.7 =f that provision it has !een said, 'ith the approval of this court, that no other one in the Constitution has tended so strongl# to constitute the citi"ens of the ,nited tates one people. ,ard & Maryland! 12 3all. -189 Corfield & Coryell! - 3ash.C.C. 8719 Paul & Vir(inia! 8 3all. 1689 Slau($#er$ouse Cases! 16 id& 86. Although this court has 'isel# for!orne an# attempt !# a comprehensive definition to indicate all of the privileges and immunities to 'hich the citi"en of a tate is entitled of right 'hen 'ithin the 1urisdiction of other tates, % ha"ard nothing, in vie' of former ad1udications, in sa#ing that no tate can sustain her denial to colored citi"ens of other tates, 'hile 'ithin her limits, of privileges or immunities fundamental in repu!lican citi"enship upon the ground that she accords such privileges and immunities onl# to her 'hite citi"ens, and 'ithholds them from her colored citi"ens. The colored citi"ens of other tates, 'ithin the 1urisdiction of that tate, could claim, in virtue of section 2 of article - of the Constitution, ever# privilege and immunit# )age 1*+ ,. . -8 'hich that tate secures to her 'hite citi"ens. =ther'ise it 'ould !e in the po'er of an# tate, !# discriminating class legislation against its o'n citi"ens of a particular race or color, to 'ithhold from citi"ens of other tates !elonging to that proscri!ed race, 'hen 'ithin her limits, privileges and immunities of the

character regarded !# all courts as fundamental in citi"enship, and that too 'hen the constitutional guarant# is that the citi"ens of each tate shall !e entitled to 7all privileges and immunities of citi"ens of the several tates.7 5o tate ma#, !# discrimination against a portion of its o'n citi"ens of a particular race, in respect of privileges and immunities fundamental in citi"enship, impair the constitutional right of citi"ens of other tates, of 'hatever race, to en1o# in that tate all such privileges and immunities as are there accorded to her most favored citi"ens. A colored citi"en of =hio or %ndiana, 'hile in the 1urisdiction of Tennessee, is entitled to en1o# an# privilege or immunit#, fundamental in citi"enship, 'hich is given to citi"ens of the 'hite race in the latter tate. %t is not to !e supposed that an#one 'ill controvert this proposition. Cut 'hat 'as secured to colored citi"ens of the ,nited tates GG as !et'een them and their respective tates GG !# the national grant to them of tate citi"enshipF 3ith 'hat rights, privileges, or immunities did this grant invest themF There is one, if there !e no other GG e0emption from race discrimination in respect of an# civil right !elonging to citi"ens of the 'hite race in the same tate. That, surel#, is their constitutional privilege 'hen 'ithin the 1urisdiction of other tates. And such must !e their constitutional right in their o'n tate, unless the recent amendments !e splendid !au!les thro'n out to delude those 'ho deserved fair and generous treatment at the hands of the nation. Citi"enship in this countr# necessaril# imports at least e2ualit# of civil rights among citi"ens of ever# race in the same tate. %t is fundamental in American citi"enship that, in respect of such rights, there shall !e no discrimination !# the tate, or its officers, or !# individuals or corporations e0ercising pu!lic functions or authorit#, against an# citi"en !ecause of his race or previous condition of servitude. %n Uni#ed S#a#es & Crui's$an'! +2 ,. . 4-2, it 'as said at page +2 ,. . 444, that the )age 1*+ ,. . -+ rights of life and personal li!ert# are natural rights of man, and that 7the e2ualit# of the rights of citi"ens is a principle of repu!licanism.7 And in E) "ar#e Vir(inia! 1** ,. . 88-, the emphatic language of this court is that 7one great purpose of these amendments 'as to raise the colored race from that condition of inferiorit# and servitude in 'hich most of them had previousl# stood into perfect e2ualit# of civil rights 'ith all other persons 'ithin the 1urisdiction of the tates.7 o, in S#rauder & ,es# Vir(inia! 1** ,. . at 1** ,. . 8*6, the court, alluding to the ;ourteenth Amendment, saidE 7This is one of a series of constitutional provisions having a common purpose, namel#, securing to a race recentl# emancipated, a race that, through man# generations, had !een held in slaver#, all the civil rights that the superior race en1o#.7 Again, in Neal & Dela*are! 1*8 ,. . 886, it 'as ruled that this amendment 'as designed primaril# 7to secure to the colored race, there!# invested 'ith the rights, privileges, and responsi!ilities of citi"enship, the en1o#ment of all the civil rights that, under the la', are en1o#ed !# 'hite persons.7

The language of this court 'ith reference to the ;ifteenth Amendment adds to the force of this vie'. %n Uni#ed S#a#es & Crui's$an'! it 'as saidE 7%n Uni#ed S#a#es & Reese! +2 ,. . 21-, 'e held that the ;ifteenth Amendment has invested the citi"ens of the ,nited tates 'ith a ne' constitutional right, 'hich is e0emption from discrimination in tho e0ercise of the elective franchise, on account of race, color, or previous condition of servitude. ;rom this it appears that the right of suffrage is not a necessar# attri!ute of national citi"enship, !ut that e0emption from discrimination in the e0ercise of that right on account of race, @c., is. The right to vote in the tates comes from the tates, !ut the right of e0emption from the prohi!ited discrimination comes from the ,nited tates. The first has not !een granted or secured !# the Constitution of the ,nited tates, !ut the last has !een.7 >ere, in language at once clear and forci!le, is stated the principle for 'hich % contend. %t can scarcel# !e claimed that e0emption from race discrimination, in respect of civil rights, against those to 'hom tate citi"enship 'as granted !# the )age 1*+ ,. . 4* nation, is an# less, for the colored race, a ne' constitutional right, derived from and secured !# the national Constitution, than is e0emption from such discrimination in the e0ercise of the elective franchise. %t cannot !e that the latter is an attri!ute of national citi"enship, 'hile the other is not essential in national citi"enship or fundamental in tate citi"enship. %f, then, e0emption from discrimination in respect of civil rights is a ne' constitutional right, secured !# the grant of tate citi"enship to colored citi"ens of the ,nited tates GG and % do not see ho' this can no' !e 2uestioned GG 'h# ma# not the nation, !# means of its o'n legislation of a primar# direct character, guard, protect, and enforce that rightF %t is a right and privilege 'hich the nation conferred. %t did not come from the tates in 'hich those colored citi"ens reside. %t has !een the esta!lished doctrine of this court during all its histor#, accepted as essential to the national supremac#, that Congress, in the a!sence of a positive delegation of po'er to the tate legislatures, ma#, !# its o'n legislation, enforce and protect an# right derived from or created !# the national Constitution. %t 'as so declared in Pri(( & Co%%on*eal#$ of Pennsyl ania& %t 'as reiterated in Uni#ed S#a#es & Reese! +2 ,. . 21-, 'here the court said that 7rights and immunities created !# and dependent upon the Constitution of the ,nited tates can !e protected !# Congress. The form and manner of the protection ma# !e such as Congress, in the legitimate e0ercise of its discretion, shall provide. These ma# !e varied to meet the necessities of the particular right to !e protected.7 %t 'as distinctl# reaffirmed in S#rauder & ,es# Vir(inia! 1** ,. . at 1** ,. . 81*, 'here 'e said that 7a right or immunit# created !# the Constitution or onl# guaranteed !# it, even 'ithout an# e0press delegation of po'er, ma# !e protected !# Congress.7

>o' then can it !e claimed, in vie' of the declarations of this court in former cases, that e0emption of colored citi"ens, 'ithin their tates, from race discrimination in respect of the civil rights of citi"ens is not an immunit# created or derived from the national ConstitutionF This court has al'a#s given a !road and li!eral construction to the Constitution, so as to ena!le Congress, !# legislation, to )age 1*+ ,. . 41 enforce rights secured !# that instrument. The legislation 'hich Congress ma# enact in e0ecution of its po'er to enforce the provisions of this amendment is such as ma# !e appropriate to protect the right granted. The 'ord appropriate 'as undou!tedl# used 'ith reference to its meaning, as esta!lished !# repeated decisions of this court. ,nder given circumstances, that 'hich the court characteri"es as corrective legislation might !e deemed !# Congress appropriate and entirel# sufficient. ,nder other circumstances, primar# direct legislation ma# !e re2uired. Cut it is for Congress, not the 1udiciar#, to sa# that legislation is appropriate GG that is, !est adapted to the end to !e attained. The 1udiciar# ma# not, 'ith safet# to our institutions, enter the domain of legislative discretion and dictate the means 'hich Congress shall emplo# in the e0ercise of its granted po'ers. That 'ould !e sheer usurpation of the functions of a coordinate department, 'hich, if often repeated, and permanentl# ac2uiesced in, 'ould 'or( a radical change in our s#stem of government. %n Uni#ed S#a#es & Fis$er! 2 Cr. 88, the court said that 7Congress must possess the choice of means, and must !e empo'ered to use an# means 'hich are, in fact, conducive to the e0ercise of a po'er granted !# the Constitution. . . . The sound construction of the Constitution,7 said Chief Austice Marshall, 7must allo' to the national legislature that discretion, 'ith respect to the means !# 'hich the po'ers it confers are to !e carried into e0ecution, 'hich 'ill ena!le that !od# to perform the high duties assigned to it in the manner most !eneficial to the people. Det the end !e legitimate, let it !e 'ithin the scope of the Constitution, and all means 'hich are appropriate, 'hich are plainl# adapted to that end, 'hich are not prohi!ited, !ut consist 'ith the letter and spirit of the Constitution, are constitutional.7 M+Cullo+$ & Maryland! - 3heat. -21. Must these rules of construction !e no' a!andonedF Are the po'ers of the national legislature to !e restrained in proportion as the rights and privileges, derived from the nation, are valua!leF Are constitutional provisions, enacted to secure the dearest rights of freemen and citi"ens, to !e su!1ected to that rule of construction, applica!le to private instruments, )age 1*+ ,. . 42

'hich re2uires that the 'ords to !e interpreted must !e ta(en most strongl# against those 'ho emplo# themF =r shall it !e remem!ered that 7a constitution of government, founded !# the people for themselves and their posterit# and for o!1ects of the most momentous nature GG for perpetual union, for the esta!lishment of 1ustice, for the general 'elfare, and for a perpetuation of the !lessings of li!ert# GG necessaril# re2uires that ever# interpretation of its po'ers should have a constant reference to these o!1ectsF 5o interpretation of the 'ords in 'hich those po'ers are granted can !e a sound one 'hich narro's do'n their ordinar# import so as to defeat those o!1ects.7 tor# Const. H -22. The opinion of the court, as % have said, proceeds upon the ground that the po'er of Congress to legislate for the protection of the rights and privileges secured !# the ;ourteenth Amendment cannot !e !rought into activit# e0cept 'ith the vie', and as it ma# !ecome necessar#, to correct and annul tate la's and tate proceedings in hostilit# to such rights and privileges. %n the a!sence of tate la's or tate action adverse to such rights and privileges, the nation ma# not activel# interfere for their protection and securit#, even against corporations and individuals e0ercising pu!lic or 6uasiGpu!lic functions. uch % understand to !e the position of m# !rethren. %f the grant to colored citi"ens of the ,nited tates of citi"enship in their respective tates imports e0emption from race discrimination in their tates in respect of such civil rights as !elong to citi"enship, then to hold that the amendment remits that right to the tates for their protection, primaril#, and sta#s the hands of the nation until it is assailed !# tate la's or tate proceedings is to ad1udge that the amendment, so far from enlarging the po'ers of Congress GG as 'e have heretofore said it did GG not onl# curtails them, !ut reverses the polic# 'hich the general government has pursued from its ver# organi"ation. uch an interpretation of the amendment is a denial to Congress of the po'er, !# appropriate legislation, to enforce one of its provisions. %n vie' of the circumstances under 'hich the recent amendments 'ere incorporated into the Constitution, and especiall# in vie' of the peculiar character of the ne' )age 1*+ ,. . 48 rights the# created and secured, it ought not to !e presumed that the general government has a!dicated its authorit#, !# national legislation, direct and primar# in its character, to guard and protect privileges and immunities secured !# that instrument. uch an interpretation of the Constitution ought not to !e accepted if it !e possi!le to avoid it. %ts acceptance 'ould lead to this anomalous resultE that, 'hereas, prior to the amendments, Congress, 'ith the sanction of this court, passed the most stringent la's GG operating directl# and primaril# upon tates and their officers and agents, as 'ell as upon individuals GG in vindication of slaver# and the right of the master, it ma# not no', !# legislation of a li(e primar# and direct character, guard, protect, and secure the freedom esta!lished, and the most essential right of the citi"enship granted, !# the constitutional amendments. 3ith all respect for the opinion of others, % insist that the national legislature ma#, 'ithout transcending the limits of the Constitution, do for human li!ert# and the fundamental rights of American citi"enship 'hat it did, 'ith the sanction of this court, for the protection of slaver# and the rights of the masters of fugitive slaves. %f fugitive slave la's, providing modes and prescri!ing penalties 'here!# the master could sei"e and recover his fugitive slave, 'ere legitimate e0ercises of an implied po'er to protect and enforce a right recogni"ed !# the Constitution, 'h# shall the hands of Congress !e tied so that GG under an e0press

po'er, !# appropriate legislation, to enforce a constitutional provision granting citi"enship GG it ma# not, !# means of direct legislation, !ring the 'hole po'er of this nation to !ear upon tates and their officers and upon such individuals and corporations e0ercising pu!lic functions as assume to a!ridge, impair, or den# rights confessedl# secured !# the supreme la' of the landF %t does not seem to me that the fact that, !# the second clause of the first section of the ;ourteenth Amendment, the tates are e0pressl# prohi!ited from ma(ing or enforcing la's a!ridging the privileges and immunities of citi"ens of the ,nited tates furnishes an# sufficient reason for holding or maintaining that the amendment 'as intended to den# Congress the po'er, !# general, primar#, and direct legislation, of )age 1*+ ,. . 4protecting citi"ens of the several tates, !eing also citi"ens of the ,nited tates, against all discrimination in respect of their rights as citi"ens 'hich is founded on race, color, or previous condition of servitude. uch an interpretation of the amendment is plainl# repugnant to its fifth section, conferring upon Congress po'er, !# appropriate legislation, to enforce not merel# the provisions containing prohi!itions upon the tates, !ut all of the provisions of the amendment, including the provisions, e0press and implied, in the first clause of the first section of the article granting citi"enship. This alone is sufficient for holding that Congress is not restricted to the enactment of la's adapted to counteract and redress the operation of tate legislation, or the action of tate officers, of the character prohi!ited !# the amendment. %t 'as perfectl# 'ell (no'n that the great danger to the e2ual en1o#ment !# citi"ens of their rights as citi"ens 'as to !e apprehended not altogether from unfriendl# tate legislation, !ut from the hostile action of corporations and individuals in the tates. And it is to !e presumed that it 'as intended !# that section to clothe Congress 'ith po'er and authorit# to meet that danger. %f the rights intended to !e secured !# the act of 1874 are such as !elong to the citi"en in common or e2uall# 'ith other citi"ens in the same tate, then it is not to !e denied that such legislation is peculiarl# appropriate to the end 'hich Congress is authori"ed to accomplish, i/&! to protect the citi"en, in respect of such rights, against discrimination on account of his race. Recurring to the specific prohi!ition in the ;ourteenth Amendment upon the ma(ing or enforcing of tate la's a!ridging the privileges of citi"ens of the ,nited tates, % remar( that if, as held in the Slau($#er$ouse Cases! the privileges here referred to 'ere those 'hich !elonged to citi"enship of the ,nited tates, as distinguished from those !elonging to tate citi"enship, it 'as impossi!le for an# tate prior to the adoption of that amendment to have enforced la's of that character. The 1udiciar# could have annulled all such legislation under the provision that the Constitution shall !e the supreme la' of the land, an#thing in the constitution or la's of an# tate to the contrar# not'ithstanding. The tates 'ere )age 1*+ ,. . 44 alread# under an implied prohi!ition not to a!ridge an# privilege or immunit# !elonging to citi"ens of the ,nited tates as such. Conse2uentl#, the prohi!ition upon tate la's in hostilit# to rights !elonging to citi"ens of the ,nited tates 'as intended GG in vie' of the introduction into the !od# of citi"ens of a race formerl# denied the essential rights of citi"enship GG onl# as an e0press limitation on the po'ers of the tates, and 'as not intended to diminish in the slightest degree the authorit# 'hich the nation has al'a#s e0ercised of protecting, !# means

of its o'n direct legislation, rights created or secured !# the Constitution. An# purpose to diminish the national authorit# in respect of privileges derived from the nation is distinctl# negatived !# the e0press grant of po'er !# legislation to enforce ever# provision of the amendment, including that 'hich, !# the grant of citi"enship in the tate, secures e0emption from race discrimination in respect of the civil rights of citi"ens. %t is said that an# interpretation of the ;ourteenth Amendment different from that adopted !# the ma1orit# of the court 'ould impl# that Congress had authorit# to enact a municipal code for all the tates covering ever# matter affecting the life, li!ert#, and propert# of the citi"ens of the several tates. 5ot so. )rior to the adoption of that amendment, the constitutions of the several tates, 'ithout perhaps an e0ception, secured all "ersons against deprivation of life, li!ert#, or propert# other'ise than !# due process of la', and, in some form, recogni"ed the right of all "ersons to the e2ual protection of the la's. Those rights therefore e0isted !efore that amendment 'as proposed or adopted, and 'ere not created !# it. %f, !# reason of that fact, it !e assumed that protection in these rights of persons still rests primaril# 'ith the tates, and that Congress ma# not interfere e0cept to enforce, !# means of corrective legislation, the prohi!itions upon tate la's or tate proceedings inconsistent 'ith those rights, it does not at all follo' that privileges 'hich have !een (ran#ed by #$e na#ion ma# not !e protected !# primar# legislation upon the part of Congress. The personal rights and immunities recogni"ed in the prohi!itive clauses of the amendment 'ere, prior to its adoption, )age 1*+ ,. . 46 under the protection, primaril#, of the tates, 'hile rights, created !# or derived from the ,nited tates have al'a#s !een and, in the nature of things, should al'a#s !e, primaril# under the protection of the general government. B0emption from race discrimination in respect of the civil rights 'hich are fundamental in +i#i/ens$i" in a repu!lican government, is, as 'e have seen, a ne' right, created !# the nation, 'ith e0press po'er in Congress, !# legislation, to enforce the constitutional provision from 'hich it is derived. %f, in some sense, such race discrimination is, 'ithin the letter of the last clause of the first section, a denial of that e2ual protection of the la's 'hich is secured against tate denial to all persons, 'hether citi"ens or not, it cannot !e possi!le that a mere prohi!ition upon such tate denial, or a prohi!ition upon tate la's a!ridging the privileges and immunities of citi"ens of the ,nited tates, ta(es from the nation the po'er 'hich it has uniforml# e0ercised of protecting, !# direct primar# legislation, those privileges and immunities 'hich e0isted under the Constitution !efore the adoption of the ;ourteenth Amendment or have !een created !# that amendment in !ehalf of those there!# made +i#i/ens of their respective tates. This construction does not in an# degree intrench upon the 1ust rights of the tates in the control of their domestic affairs. %t simpl# recogni"es the enlarged po'ers conferred !# the recent amendments upon the general government. %n the vie' 'hich % ta(e of those amendments, the tates possess the same authorit# 'hich the# have al'a#s had to define and regulate the civil rights 'hich their o'n people, in virtue of tate citi"enship, ma# en1o# 'ithin their respective limits, e0cept that its e0ercise is no' su!1ect to the e0pressl# granted po'er of Congress, !# legislation, to enforce the provisions of such amendments GG a po'er 'hich necessaril# carries 'ith it authorit#, !# national legislation, to protect and secure the privileges and immunities 'hich are created !# or are derived from those amendments. That e0emption of citi"ens from discrimination !ased on race or color, in respect of civil rights, is one of those privileges or immunities can no longer !e deemed an open 2uestion in this court.

)age 1*+ ,. . 47 %t 'as said of the case of Dred S+o## & Sandford that this court there overruled the action of t'o generations, virtuall# inserted a ne' clause in the Constitution, changed its character, and made a ne' departure in the 'or(ings of the federal government. % ma# !e permitted to sa# that, if the recent amendments are so construed that Congress ma# not, in its o'n discretion and independentl# of the action or nonaction of the tates, provide !# legislation of a direct character for the securit# of rights created !# the national Constitution, if it !e ad1udged that the o!ligation to protect the fundamental privileges and immunities granted !# the ;ourteenth Amendment to citi"ens residing in the several tates rests primaril# not on the nation, !ut on the tates, if it !e further ad1udged that individuals and corporations e0ercising pu!lic functions or 'ielding po'er under pu!lic authorit# ma#, 'ithout lia!ilit# to direct primar# legislation on the part of Congress, ma(e the race of citi"ens the ground for den#ing them that e2ualit# of civil rights 'hich the Constitution ordains as a principle of repu!lican citi"enship, then not onl# the foundations upon 'hich the national supremac# has al'a#s securel# rested 'ill !e materiall# distur!ed, !ut 'e shall enter upon an era of constitutional la' 'hen the rights of freedom and American citi"enship cannot receive from the nation that efficient protection 'hich heretofore 'as unhesitatingl# accorded to slaver# and the rights of the master. Cut if it 'ere conceded that the po'er of Congress could not !e !rought into activit# until the rights specified in the act of 1874 had !een a!ridged or denied !# some tate la' or tate action, % maintain that the decision of the court is erroneous. There has !een adverse tate action 'ithin the ;ourteenth Amendment as heretofore interpreted !# this court. % allude to E) "ar#e Vir(inia! su"ra& %t appears in that case that one Cole, 1udge of a count# court, 'as charged 'ith the dut# !# the la's of &irginia of selecting grand and petit 1urors. The la' of the tate did not authori"e or permit him, in ma(ing such selections, to discriminate against colored citi"ens !ecause of their race. Cut he 'as indicted in the federal court, under the act of 1874, for ma(ing such discriminations. )age 1*+ ,. . 48 The attorne# general of &irginia contended !efore us that the tate had done its dut#, and had not authori"ed or directed that count# 1udge to do 'hat he 'as charged 'ith having done9 that the tate had not denied to the colored race the e2ual protection of the la's, and that conse2uentl# the act of Cole must !e deemed his individual act, in contravention of the 'ill of the tate. )lausi!le as this argument 'as, it failed to convince this court, and after sa#ing that the ;ourteenth Amendment had reference to the political !od# denominated a tate 7!# 'hatever instruments or in 'hatever modes that action ma# !e ta(en,7 and that a tate acts !# its legislative, e0ecutive, and 1udicial authorities, and can act in no other 'a#, 'e proceededE 7The constitutional provision, therefore, must mean that no agenc# of the tate or of the officers or agents !# 'hom its po'ers are e0erted shall den# to an# person 'ithin its 1urisdiction the e2ual protection of the la's. 3hoever, !# virtue of pu!lic position under a tate government, deprives another of propert#, life, or li!ert# 'ithout due process of la', or denies or ta(es a'a# the e2ual protection of the la's, violates the constitutional inhi!ition9 and, as he acts under the name and for the tate, and is clothed 'ith the tate:s po'er, his act is that of the tate. This must !e so, or the constitutional prohi!ition has no meaning. Then the tate has clothed one of its agents 'ith po'er to annul or evade it. Cut the constitutional amendment 'as ordained for a purpose.

%t 'as to secure e2ual rights to all persons, and, to insure to all persons the en1o#ment of such rights, po'er 'as given to Congress to enforce its provisions !# appropriate legislation. uch legislation must act upon persons, not upon the a!stract thing denominated a tate, !ut upon the persons 'ho are the agents of the tate in the denial of the rights 'hich 'ere intended to !e secured.7 E) "ar#e Vir(inia! 1** ,. . 8-6G8-7. %n ever# material sense applica!le to the practical enforcement of the ;ourteenth Amendment, railroad corporations, (eepers of inns, and managers of places of pu!lic amusement are agents or instrumentalities of the tate, !ecause the# are charged 'ith )age 1*+ ,. . 4+ duties to the pu!lic and are amena!le, in respect of their duties and functions, to governmental regulation. %t seems to me that, 'ithin the principle settled in E) "ar#e Vir(inia! a denial !# these instrumentalities of the tate to the citi"en, !ecause of his race, of that e2ualit# of civil rights secured to him !# la' is a denial !# the tate 'ithin the meaning of the ;ourteenth Amendment. %f it !e not, then that race is left, in respect of the civil rights in 2uestion, practicall# at the merc# of corporations and individuals 'ielding po'er under the tates. Cut the court sa#s that Congress did not, in the act of 1866, assume, under the authorit# given !# the Thirteenth Amendment, to ad1ust 'hat ma# !e called the social rights of men and races in the communit#. % agree that government has nothing to do 'ith social, as distinguished from technicall# legal, rights of individuals. 5o government ever has !rought, or ever can !ring, its people into social intercourse against their 'ishes. 3hether one person 'ill permit or maintain social relations 'ith another is a matter 'ith 'hich government has no concern. % agree that, if one citi"en chooses not to hold social intercourse 'ith another, he is not and cannot !e made amena!le to the la' for his conduct in that regard, for even upon grounds of race, no legal right of a citi"en is violated !# the refusal of others to maintain merel# social relations 'ith him. 3hat % affirm is that no tate, nor the officers of an# tate, nor an# corporation or individual 'ielding po'er under tate authorit# for the pu!lic !enefit or the pu!lic convenience, can, consistentl# either 'ith the freedom esta!lished !# the fundamental la' or 'ith that e2ualit# of civil rights 'hich no' !elongs to ever# citi"en, discriminate against freemen or citi"ens in those rights !ecause of their race, or !ecause the# once la!ored under the disa!ilities of slaver# imposed upon them as a race. The rights 'hich Congress, !# the act of 1874, endeavored to secure and protect are legal, not social, rights. The right, for instance, of a colored citi"en to use the accommodations of a pu!lic high'a# upon the same terms as are permitted to 'hite citi"ens is no more a social right than his right under the la' to use the pu!lic streets of a cit# or a to'n, or a turnpi(e road, or a pu!lic mar(et, or a post office, or his right to sit )age 1*+ ,. . 6* in a pu!lic !uilding 'ith others, of 'hatever race, for the purpose of hearing the political 2uestions of the da# discussed. carcel# a da# passes 'ithout our seeing in this courtroom citi"ens of the 'hite and !lac( races sitting side !# side, 'atching the progress of our !usiness. %t 'ould never occur to an#one that the presence of a colored citi"en in a courthouse, or courtroom, 'as an invasion of the social rights of 'hite persons 'ho ma#

fre2uent such places. And #et such a suggestion 'ould !e 2uite as sound in la' GG % sa# it 'ith all respect GG as is the suggestion that the claim of a colored citi"en to use, upon the same terms as is permitted to 'hite citi"ens, the accommodations of pu!lic high'a#s, or pu!lic inns, or places of pu!lic amusement, esta!lished under the license of the la', is an invasion of the social rights of the 'hite race. The court, in its opinion, reserves the 2uestion '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. % !eg to suggest that that precise 2uestion 'as su!stantiall# presented here in the onl# one of these cases relating to railroads GG Robinson and ,ife & Me%"$is - C$arles#on Railroad Co%"any& %n that case, it appears that Mrs. Ro!inson, a citi"en of Mississippi, purchased a railroad tic(et entitling her to !e carried from <rand Aunction, Tennessee, to D#nch!urg, &irginia. Might not the act of 1874 !e maintained in that case as applica!le at least to commerce !et'een the tates, not'ithstanding it does not, upon its face, profess to have !een passed in pursuance of the po'er of Congress to regulate commerceF >as it ever !een held that the 1udiciar# should overturn a statute !ecause the legislative department did not accuratel# recite therein the particular provision of the Constitution authori"ing its enactmentF 3e have often enforced municipal !onds in aid of railroad su!scriptions 'here the# failed to recite the statute authori"ing their issue, !ut recited one 'hich did not sustain their validit#. The in2uir# in such cases has !een 'as there, in an# statute, authorit# for the e0ecution of the !ondsF ,pon this !ranch of the case, it ma# !e remar(ed that the tate of Douisiana, in 186+, passed a statute )age 1*+ ,. . 61 giving to passengers, 'ithout regard to race or color, e2ualit# of right in the accommodations of railroad and street cars, steam!oats or other 'atercrafts, stage coaches, omni!uses, or other vehicles. Cut in Hall & De Cuir! +4 ,. . -87, that act 'as pronounced unconstitutional so far as it related to commerce !et'een the tates, this court sa#ing that, 7if the pu!lic good re2uires such legislation, it must come from Congress, and not from the tates.7 % suggest, that it ma# !ecome a pertinent in2uir# 'hether Congress ma#, in the e0ertion of its po'er to regulate commerce among the tates, enforce among passengers on pu!lic conve#ances e2ualit# of right, 'ithout regard to race, color or previous condition of servitude, if it !e true GG 'hich % do not admit GG that such legislation 'ould !e an interference !# government 'ith the social rights of the people. M# !rethren sa# that, 'hen 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 a citi"en or a man are to !e protected in the ordinar# modes !# 'hich other men:s rights are protected. %t is, % su!mit, scarcel# 1ust to sa# that the colored race has !een the special favorite of the la's. The statute of 1874, no' ad1udged to !e unconstitutional, is for the !enefit of citi"ens of ever# race and color. 3hat the nation, through Congress, has sought to accomplish in reference to that race is 'hat had alread# !een done in ever# tate of the ,nion for the 'hite race GG to secure and protect rights !elonging to them as freemen and citi"ens, nothing more. %t 'as not deemed enough 7to help the fee!le up, !ut to support him after.7 The one underl#ing purpose of congressional legislation has !een to ena!le the !lac( race to ta(e the ran( of mere citi"ens. The difficult# has !een to compel a recognition of the legal right of the !lac( race to ta(e the ran( of

citi"ens, and to secure the en1o#ment of privileges !elonging, under the la', to them as a component part of the people for 'hose 'elfare and happiness government is ordained. )age 1*+ ,. . 62 At ever# step in this direction, the nation has !een confronted 'ith class t#rann#, 'hich a contemporar# Bnglish historian sa#s is, of all t#rannies, the most intolera!le, 7for it is u!i2uitous in its operation and 'eighs perhaps most heavil# on those 'hose o!scurit# or distance 'ould 'ithdra' them from the notice of a single despot.7 Toda# it is the colored race 'hich is denied, !# corporations and individuals 'ielding pu!lic authorit#, rights fundamental in their freedom and citi"enship. At some future time, it ma# !e that some other race 'ill fall under the !an of race discrimination. %f the constitutional amendments !e enforced according to the intent 'ith 'hich, as % conceive, the# 'ere adopted, there cannot !e, in this repu!lic, an# class of human !eings in practical su!1ection to another class 'ith po'er in the latter to dole out to the former 1ust such privileges as the# ma# choose to grant. The supreme la' of the land has decreed that no authorit# shall !e e0ercised in this countr# upon the !asis of discrimination, in respect of civil rights, against freemen and citi"ens !ecause of their race, color, or previous condition of servitude. To that decree GG for the due enforcement of 'hich, !# appropriate legislation, Congress has !een invested 'ith e0press po'er GG ever#one must !o', 'hatever ma# have !een, or 'hatever no' are, his individual vie's as to the 'isdom or polic# either of the recent changes in the fundamental la' or of the legislation 'hich has !een enacted to give them effect. ;or the reasons stated, % feel constrained to 'ithhold m# assent to the opinion of the court.