granted, by the constitutional amendments."
It did not seem to Justice Harlan that the fact that, by the second clause of the first section of the Fourteenth Amendment, the States are expressly prohibited from making or enforcing laws abridging the rights and immunities of citizens of the United States, furnished any sufficient reason for upholding or maintaining that the amendment was intended to deny Congress the power, by general, primary, and direct legislation, of protecting citizens of the several States, being also citizens of the United States, against all discrimination, in respect of their rights as citizens, which is founded on "race, color, or previous condition of servitude." "Such an interpretation," thought he, "is plainly repugnant to its fifth section, conferring upon Congress power, by appropriate legislation, to enforce not merely the provisions containing prohibitions upon the States, but all of the provisions of the amendment, including the provisions, express and implied, in the first clause of the first section of the article granting citizenship." The prohibition of the State laws could have been negatived by judicial interpretation without the Fourteenth Amendment on the ground that they would have conflicted with the Constitution.
The court said the Fourteenth Amendment was not intended to enact a municipal code for the States. No one will gainsay this. This Amendment, moreover, is not altogether for the benefit of the Negro. It simply interferes with the local laws when they operate so as to discriminate against persons or permit agents of the States to discriminate against persons of any race on account of color or previous condition of servitude. Of what benefit was it if it did not do this? The constitutions of the several States had already secured all persons against deprivation of life, liberty or property otherwise than by due process of law, and in some form recognized the right of all persons to the equal protection of the laws. If this be the correct interpretation even, it does not follow that privileges which have been granted by the nation, may not be protected by primary legislation upon the part of Congress. Justice Harlan pointed out that it is for Congress not the judiciary, to say that legislation is appropriate, for that would be sheer usurpation of the functions of a coordinate department. Why should these rules of interpretation be abandoned in the case of maintaining the rights of the Negro guaranteed by the Constitution?
The Civil Rights Act of 1875 could have been maintained on the ground that it regulated interstate passenger traffic, as one of the cases, Robinson and Wife v. Memphis and Charleston Railroad Company, showed that Robinson a citizen of Mississippi had purchased a ticket entitling him to be carried from Grand Junction, Tennessee, to Lynchburg, Virginia. This case substantially presented the question of interstate commerce but the court reserved the question whether Congress in the exercise of its power to regulate commerce among the several States, might or might not pass a law regulating rights in public conveyances passing from one State to another. The court undertook to hide behind the fact that this specific act did not recite therein that it was enacted in pursuance of the power of Congress to regulate commerce. Justice Harlan, therefore, inquired: "Has it ever been held that the judiciary should overturn a statute, because the legislative department did not accurately recite therein the particular provision of the constitution authorizing its enactment?" On the whole, the contrary is the rule. It is sufficient to know that there is authority in the Constitution.
In this decision, too, there was the influence of the much paraded bugbear of social equality forced upon the whites. To use the inns, hotels, and parks, established by authority of the government and the places of amusement authorized as the necessary stimulus to progress, to buy a railroad ticket at the same window, ride in the same comfortable car on a limited train rather than incur the loss of time and suffer the inconvenience of inferior accommodations on a slow local train; to sleep and eat in a Pullman car so as to be refreshed for business on arriving at the end of a long journey, all of this was and is today dubbed by the reactionary courts social equality. Justice Harlan exposed this fallacy in saying: "The right, for instance, of a colored citizen to use the accommodations of a public highway, upon the same terms as are permitted to white citizens, is no more a social right than his right, under the law, to use the public streets of a city or a town, or a turnpike road, or a public market, or a post office, or his right to sit in a public building with others, of whatever race, for the purpose of hearing the political questions of the day discussed."
What did the Negro become when he was freed? What was he when, according to section 2 of Article IV of the Constitution, he became by virtue of the Fourteenth Amendment entitled to all privileges and immunities of citizens in the several States?25 From what did the race become free? If Justice Bradley had been inconveniently segregated by common carriers, driven out of inns and hotels with the sanction of local law, and deprived by a mob of the opportunity to make a living, would he have considered himself a free citizen of this or any other country? "A colored citizen of Ohio or Indiana while in the jurisdiction of Tennessee," contended Justice Harlan, "is entitled to enjoy any privilege or immunity, fundamental in citizenship, which is given to citizens of the white race in the latter State. Citizenship in this country necessarily imports at least equality of civil rights among citizens of every race in the same State." In United States v. Cruikshank26 it was held that rights of life and personal liberty are natural rights of man, and that "equality of the rights of citizens is a principle of republicanism."
Inconsistency of the Court
In the case of Hall v. DeCuir27 the court reached an important decision when an Act of Louisiana passed in 1869 to give passengers without regard to race or color equality of right in the accommodations of railroad or street cars, steamboats or other water crafts, stage coaches, omnibusses or other vehicles, was declared unconstitutional so far as it related to commerce between States.28 Here a person of color had been discriminated against by a Mississippi River navigation company which was called to answer before a United States court for violating this act.
Giving the opinion of the court, Chief Justice Waite said: "We think it may be safely said that State legislation which seeks to impose a direct burden upon inter-state commerce, or to interfere directly with its freedom does encroach upon the exclusive power of Congress. The statute now under consideration in our opinion occupies that position." "Inaction by Congress," the court held, "is equivalent to a declaration that interstate commerce shall remain free and untrammelled." This meant that the carrier was "at liberty to adopt such reasonable rules and regulations for the disposition of passengers upon his boat, while pursuing her voyage within Louisiana or without, as seemed to him best for the interest of all concerned. The statute under which this suit is brought, as construed by the State court, seeks to take away from him that power so long as he is within Louisiana, and while recognizing to the fullest extent the principle which sustains a statute unless its unconstitutionality is clearly established, we think this statute to the extent that it requires those engaged in the transportation of passengers among the several States to carry colored persons in Louisiana in the same cabin with whites is unconstitutional and void. If the public good requires such legislation it must come from Congress and not from the States."
Justice Waite here expressed his fear as to the delicate ground on which he was treading in saying: "The line which separates the powers of the States from this exclusive power of Congress is not always distinctly marked, and oftentimes it is not easy to determine on which side a particular case belongs. Judges not infrequently differ in their reasons for a decision in which they concur. Under such circumstances it would be a useless task to undertake to fix an arbitrary rule by which the line must in all cases be located. It is far better to leave a matter of such delicacy to be settled in each case upon a view of the particular rights involved." Thus the way was left clear to vary the principle of interpretation according to the color of the citizens whose rights might be involved.
In view of the subsequent decisions in separate car cases, moreover, the following portion of Justice Waite's opinion as to a clause in the law involved in the case of Hall v. DeCuir is unusually interesting. "It does not act," said he, "upon the business
92 U. S., 542.
95 U. S., 487.
The Louisiana Act was:
