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*

of the (ind referred to. pu!lic conve#ances. and this is the 'hole of it. 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. !ut to provide modes of relief against tate legislation. theatres. !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 . %t has a deeper and !roader scope. shall have the same accommodations and privileges in all inns. are the principal arguments adduced in favor of the po'er. and other places of pu!lic amusement. the 'eight of authorit# 'hich al'a#s invests a la' that Congress deems itself competent to pass. is prohi!itor# in its character. as 'as due to the eminent a!ilit# of those 'ho put them for'ard. void. or tate action. and of the several tates. 'hich impairs the privileges and immunities of citi"ens of the .'hich is the one relied on/. To enforce 'hatF To enforce the prohi!ition.nited tates or 'hich in1ures them in life.7 %t is tate action of a particular character that is prohi!ited. advanced 'hilst the la' 'as under consideration.nited tates9 nor shall an# tate deprive an# person of life. . The first section of the .pu!lic conve#ances. !een slaves. and have felt. after declaring 'ho shall !e citi"ens of the . and prohi!itor# upon the tates.ourteenth Amendment. 'hether formerl# slaves or not. %t does not invest Congress 'ith po'er to legislate upon su!1ects 'hich are 'ithin the domain of tate legislation. li!ert#. pu!lic conve#ances. li!ert# or propert# 'ithout due process of la'. The po'er is sought. in order that the national 'ill. %t does not authori"e Congress to create a code of municipal la' for the regulation of private rights. it is the purpose of the la' to declare that. 3e have carefull# considered those arguments. !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. and those 'ho have not. The second section ma(es it a penal offence in an# person to den# to an# citi"en of an# race or color. thus declared. in the en1o#ment of the accommodations and privileges of inns. or 'ho had !een in a previous condition of servitude. no distinction shall !e made !et'een citi"ens of different race or color or !et'een those 'ho have. and thus to render them effectuall# null. 11 75o tate shall ma(e or enforce an# la' 'hich shall a!ridge the privileges or immunities of citi"ens of the . an# of the accommodations or privileges mentioned in the first section. %t declares thatE )age 1*+ . !ut. no one 'ill contend that the po'er to pass it 'as contained in the Constitution !efore the adoption of the last three amendments. in all its force. and innocuous. regardless of previous servitude. and citi"ens of other races. >as Congress constitutional po'er to ma(e such a la'F =f course. pu!lic conve#ances. or propert# 'ithout due process of la'9 nor den# to an# person 'ithin its 1urisdiction the e2ual protection of the la's. and vice versa. in the . and theatres. %n other 'ords. claiming authorit# to pass it !# virtue of that amendment.ourteenth Amendment . and places of amusement. and places of amusement as are en1o#ed !# 'hite citi"ens. %t not onl# does this. and the vie's and arguments of distinguished enators. %t nullifies and ma(es void all tate legislation.nited tates. colored citi"ens.. %ndividual invasion of individual rights is not the su!1ect matter of the amendment. and tate action of ever# (ind. To adopt appropriate legislation for correcting the effects of such prohi!ited tate la's and tate acts. first. %ts effect is to declare that. and 'e are !ound to e0ercise it according to the !est lights 'e have. or 'hich denies to an# of them the e2ual protection of the la's. This is the legislative po'er conferred upon Congress. Cut the responsi!ilit# of an independent 1udgment is no' thro'n upon this court. in all inns.

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

and shall !e prosecuted and punished !# proceedings in the courts of the . pu!lic conve#ances. %f this legislation is appropriate for enforcing the prohi!itions of the amendment. . enact a code of la's for the enforcement and vindication of all rights of life. and theatresF The truth is that the implication of a po'er to legislate in this manner is !ased )age 1*+ .!ut it should !e adapted to the mischief and 'rong 'hich the amendment 'as intended to provide against. in ever# possi!le case. such as ma# !e necessar# and proper for counteracting such la's as the tates ma# )age 1*+ . 1adopt or enforce.and the amendment itself does suppose this/. 14 . Congress ma# therefore provide due process of la' for their vindication in ever# case. as 'ell as to prescri!e e2ual privileges in inns. uch legislation cannot properl# cover the 'hole domain of rights appertaining to life. it steps into the domain of local 1urisprudence.ourteenth Amendment on the part of the tates. %t is sufficient for us to e0amine 'hether the la' in 2uestion is of that character. %t is not necessar# for us to state. and 'hich. 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.. or tate action of some (ind. %t is not predicated on an# such vie'. 'ithout referring in an# manner to an# supposed action of the tate or its authorities. li!ert#. the# are prohi!ited from ma(ing or enforcing. sought to !e protected against invasion on the part of the tate 'ithout due process of la'. %n fine. or such acts and proceedings as the tates ma# commit or ta(e. !ecause the denial !# a tate to an# persons of the e2ual protection of the la's is prohi!ited !# the amendment. %t is a!surd to affirm that. adverse to the rights of the citi"en secured !# the amendment. 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. An inspection of the la' sho's that it ma(es no reference 'hatever to an# supposed or apprehended violation of the . . !ut corrective legislation. 'hat legislation 'ould !e proper for Congress to adopt. %t proceeds e) dire+#o to declare that certain acts committed !# individuals shall !e deemed offences. it is difficult to see 'here it is to stop. and that. li!ert#.. 'ith e2ual sho' of authorit#.'hich include all civil rights that men have/ are. and that is tate la's.nited tates. and imposes sanctions for the enforcement of those rules. and 'hich. !# the amendment. if 'e could. that is. 3h# ma# not Congress. !# the amendment. therefore Congress ma# esta!lish la's for their e2ual protection. li!ert#. li!ert# and propert#. %n other 'ords. the# are prohi!ited from committing or ta(ing. defining them and providing for their vindication. 'h# should not Congress proceed at once to prescri!e due process of la' for the protection of ever# one of these fundamental rights. and propert#F %f it is supposa!le that the tates ma# deprive persons of life. %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. the legislation 'hich Congress is authori"ed to adopt in this !ehalf is not general legislation upon the rights of the citi"en. !ecause the rights of life. %t applies e2uall# to cases arising in tates 'hich have the 1ustest la's respecting the personal rights of citi"ens. !# the amendment. and la#s do'n rules for the conduct of individuals in societ# to'ards each other. and propert# . and propert# 'ithout due process of la' .

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

and customs having the force of la'. in the cases provided for. unsupported !# an# such authorit#. or slander the good name of a fello' citi"en9 !ut. 441*. 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. or his reputation9 !ut if not sanctioned in some 'a# !# the tate. to hold propert#. and su!1ect to fine and imprisonment as specified in the act. are omitted9 !ut the penal part. An individual cannot deprive a man of his right to vote. 17 parties to a deprivation of their rights under color of an# statute. it is true. or use ruffian violence at the polls. a ver# important clause. !ut a!rogation and )age 1*+ .. thus preserving the corrective character of the legislation. toG'it. 1+7+. the evil or 'rong actuall# committed rests upon some tate la' or tate authorit# for its e0cuse and perpetration. or not done under tate authorit#. it is proper to state that civil rights. it is true. >ence. or 1udicial or e0ecutive proceedings. regulation or custom to the contrar# not'ithstanding. is simpl# a private 'rong. . 'ith the addition of a penalt# for setting up such an un1ust and unconstitutional defence. This la' is clearl# corrective in its character.. !# 'hich the declaration is enforced. 'hether the# affect his person. his propert#. he should !e lia!le to an action upon it in the courts of the . etc. '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. ordinance. and amena!le therefor to the la's of the tate 'here the 'rongful acts are committed. and that. The Civil Rights Cill here referred to is analogous in its character to 'hat a la' 'ould have !een under the original Constitution. if an# person !ound !# a contract should refuse to compl# 'ith it. declaring that the validit# of contracts should not !e impaired. the 'ords 7an# la'. and 'hich is reall# the effective part of the la'. 'hich sanction the 'rongful acts specified. to sue in the courts. customs. or !# reason of his color or race. ordinance. Rev.nited tates. t. cannot !e impaired !# the 'rongful acts of individuals. %t must assume that. retains the reference to tate la's !# ma(ing the penalt# appl# onl# to those 'ho should su!1ect )age 1*+ . !# force or fraud. his rights remain in full force. 18 denial of rights. or a crime of that individual9 an invasion of the rights of the in1ured part#. to !u# and sell. The 'rongful act of an individual. custom. . shall !e deemed guilt# of a misdemeanor.on account of such person:s !eing an alien. than is prescri!ed for the punishment of citi"ens. he cannot destro# or in1ure the right9 he 'ill onl# render himself amena!le to satisfaction or punishment. or commit murder. it is not individual offences. HH 177. and ma# presuma!l# !e vindicated !# resort to the la's of the tate for redress. under color or pretence that it had !een rendered void or invalid !# a tate la'.7 'hich gave the declarator# section its point and effect. unless protected in these 'rongful acts !# some shield of tate la' or tate authorit#. 1+78. And the remed# to !e provided must necessaril# !e predicated upon that 'rong. of an# tate or Territor#. unsupported !# tate authorit# in the shape of la's. %n the Revised tatutes.. intended to counteract and furnish redress against tate la's and proceedings. statute. interfere 'ith the en1o#ment of the right in a particular case9 he ma# commit an assault against the person. such as are guaranteed !# the Constitution against tate aggression. %n this connection. or to !e a 'itness or a 1uror9 he ma#. .

and imposes a penalt# upon an# individual 'ho shall den# to an# citi"en such e2ual accommodations and privileges. as 'e deem them to !e . Cut 'here a su!1ect is not su!mitted to the general legislative po'er of Congress. 62+/. 3e have discussed the 2uestion presented !# the la' on the assumption that a right to en1o# e2ual accommodation and privileges in all inns. . 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. 3hat 'e have to decide is 'hether such plenar# po'er has !een conferred upon Congress !# the . and places of pu!lic amusement. pu!lic conve#ances.. accompanied 'ith an e0press or implied denial of such po'er to the tates. adapted to counteract and redress the operation of such prohi!ited tate la's or proceedings of tate officers. Congress has po'er to pass la's for regulating the su!1ects specified in ever# detail. 'hich are su!1ect to the plenar# legislation of Congress in ever# !ranch of municipal regulation.ourteenth Amendment. etc. %f the principles of interpretation 'hich 'e have laid do'n are correct. 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. or onl# allo's it permissive force. the provisions of the amendment. The la' in 2uestion. !# appropriate legislation. !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. 3e have also discussed the validit# of the la' in reference to cases arising in the tates onl#. %n these cases. 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. and places of amusement. 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. pu!lic conve#ances. it has not. and not in reference to cases arising in the Territories or the 6istrict of Colum!ia. 'ithout an# reference to adverse tate legislation on the su!1ect. 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. the# all . 3hether it is such a right or not is a different 2uestion 'hich. and 'ith the %ndian tri!es. in our 1udgment. . the declaring of 'ar. in the vie' 'e have ta(en of the validit# of the la' on the ground alread# stated. and an# legislation !# Congress in the matter must necessaril# !e corrective in its character.. it is clear that the la' in 2uestion cannot !e sustained !# an# grant of legislative po'er made to Congress !# the . %t ignores such legislation. %t supersedes and displaces tate legislation on the same su!1ect. the coining of mone#. pu!lic conve#ances. 1+ declares that all persons shall !e entitled to e2ual accommodations and privileges of inns. the po'er given is limited !# its o!1ect. )age 1*+ . and the conduct and transactions of individuals in respect thereof. among the several tates.ourteenth Amendment.=f course.and the# are in accord 'ith the principles laid do'n in the cases !efore referred to. and declares that Congress shall have po'er to enforce. That amendment prohi!its the tates from den#ing to an# person the e2ual protection of the la's. it is not necessar# to e0amine. as 'ell as in the recent case of Uni#ed S#a#es & Harris! 1*6 . the esta!lishment of post offices and post roads. as in the regulation of commerce 'ith foreign nations. and.

This amendment. and. or a theatre does su!1ect that person to an# form of servitude. therefore.ourteenth.nited tates. upon this assumption . or tend to fasten upon him an# !adge of slaver#F %f it does not. e0cept as a punishment for crime. This amendment declares 7that neither slaver#. as 'ell as the . nor involuntar# servitude. in the e0ercise of its po'er to regulate commerce amongst the several tates.nited tates. for the amendment is not a mere prohi!ition of tate la's esta!lishing or upholding slaver#. legislation on the su!1ect in hand is sought. )age 1*+ .nited tates. in itself.7 and it gives Congress po'er to enforce the amendment !# appropriate legislation. . so far as its terms are applica!le to an# e0isting state of circumstances. And 'hether Congress. then po'er to pass the la' is not found in the Thirteenth Amendment. or an# place su!1ect to their 1urisdiction. !ut an a!solute declaration that slaver# or involuntar# servitude shall not e0ist in an# part of the . an# more than propert# in lands and goods can e0ist 'ithout la'. is undou!tedl# selfGe0ecuting. is the minor proposition also true. as distinguished from corrective. the Thirteenth Amendment ma# !e regarded as nullif#ing all tate la's 'hich esta!lish or uphold slaver#. esta!lishing and decreeing universal civil and political freedom throughout the .it is claimed that this is sufficient authorit# for declaring !# la' that all persons shall have e2ual accommodations and privileges in all inns. that the denial to an# person of admission to the accommodations and privileges of an inn. . 'hereof the part# shall have !een dul# convicted. And such legislation ma# !e primar# and direct in its character. Conceding the ma1or proposition to !e true. ... and.!eing cases arising 'ithin the limits of tates. 'ithout an# ancillar# legislation. in the second place. that )age 1*+ . Cut it has a refle0 character also. shall e0ist 'ithin the . %t is true that slaver# cannot e0ist 'ithout la'. legislation ma# !e necessar# and proper to meet all the various cases and circumstances to !e affected !# it. and places of amusement. and to prescri!e proper modes of redress for its violation in letter or spirit.nited tates. as the sections in 2uestion are not conceived in an# such vie'. 2* Cut the po'er of Congress to adopt direct and primar#. it a!olished slaver# and esta!lished universal freedom. 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. 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. C# its o'n unaided force and effect. a pu!lic conve#ance. 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 . till. a su!1ection to a species of servitude 'ithin the meaning of the amendment. from the Thirteenth Amendment. pu!lic conve#ances. 'hich a!olishes slaver#. the argument !eing that the denial of such e2ual accommodations and privileges is.

!e parties. disa!ilit# to hold propert#. sell and conve# propert# as is en1o#ed !# 'hite citi"ens. the same right to ma(e and enforce contracts. in the times 'hen slaver# prevailed. and 'hich 'ere a!olished !# the decrees of the 5ational Assem!l#. passed in vie' of the Thirteenth Amendment !efore the . or !adge of either. . to ma(e contracts. the necessar# incidents of slaver# constituting its su!stance and visi!le form. '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. purchase. nor an# greater dou!t that Congress has ade2uate po'er to for!id an# such servitude from !eing e0acted. and amena!le to the prohi!itions of the . a long list of !urdens and disa!ilities of a servile character. Cut 'hat has it to do 'ith the 2uestion of slaver#F %t ma# !e that. there can !e no dou!t that the la' 'ould !e repugnant to the . namel#.. 'ithout the support 'hich it after'ard received from the . the proprietors of inns and pu!lic )age 1*+ .rance.ourteenth. !# the Clac( Code . %t is referred to for the purpose of sho'ing that. no less than to the Thirteenth. 'ould !e o!no0ious to the prohi!itions of the . it is not necessar# to in2uire.ourteenth Amendment. and such li(e !urdens and incapacities 'ere the insepara!le incidents of the institution. Cut is there an# similarit# !et'een such servitudes and a denial !# the o'ner of an inn. Congress did .in 1866/. arise from such an act of denialF 3hether it might not !e a denial of a right 'hich. 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. and 'as no part of the servitude itself. and e0acted !# one man from another 'ithout the latter:s consent. after the adoption of 'hich it 'as reenacted 'ith some additions. !# the Civil Rights Cill of 1866. to have a standing in court. This 'as merel# a means of preventing such escapes. everer punishments for crimes 'ere imposed on the slave than on free persons guilt# of the same offences. if sanctioned !# the state la'. or !# long custom. to sue. and to secure to all citi"ens of ever# race and color. as 'e have seen. Amendment. those fundamental rights 'hich are the essence of civil freedom. privileges and immunities of citi"ens 'hich cannot rightfull# !e a!ridged !# state la's under the . Congress. lease. undertoo( to 'ipe out these !urdens and disa!ilities.ourteenth Amendment. made in a former case. restraint of his movements e0cept !# the master:s 'ill.%n a ver# a!le and learned presentation of the cognate 2uestion as to the e0tent of the rights. 3hether this legislation 'as full# authori"ed !# the Thirteenth Amendment alone.as it 'as called/. Cut these 'ere servitudes imposed !# the old la'.ourteenth Amendment. give evidence. incident to feudal vassalage in . Compulsor# service of the slave for the !enefit of the master. 'hich had the force of la'. to !e a 'itness against a 'hite person. made haste to 'ipe out and destro#. and 'ithout regard to previous servitude. at that time . even though the denial !e founded on the race or color of that individualF 3here does an# slaver# or servitude.ourteenth 'as adopted. in its effort to esta!lish universal li!ert#. a pu!lic conve#ance. The long e0istence of African slaver# in this countr# gave us ver# distinct notions of 'hat it 'as and 'hat 'ere its necessar# incidents. A la' of that (ind could not have an# such o!1ect no'. hould an# such servitudes !e imposed !# a state la'.ourteenth Amendment is another 2uestion. and to inherit. or a theatre of its accommodations and privileges to an individual. ho'ever 1ustl# it might !e deemed an invasion of the part#:s legal right as a citi"en.

nder the Thirteenth Amendment. 'hen not involving the idea of an# su!1ection of one man to another. li!ert#.nder the Thirteenth Amendment. and the en1o#ment or deprivation of 'hich constitutes the essential distinction !et'een freedom and slaver#.. . or class of persons.nder the . for e0ample. it must necessaril# !e. 3hat Congress has po'er to do under one it ma# not have po'er to do under the other.not assume. it has onl# to do 'ith slaver# and its incidents. operating upon the acts of individuals. The Thirteenth Amendment has respect not to distinctions of race or class or color. !ut onl# to declare and vindicate those fundamental rights 'hich appertain to the essence of citi"enship. addressed to counteract and afford relief against tate regulations or proceedings. ma# !e direct and primar#. and 'ould !e o!no0ious to the prohi!itions of the . the legislation. the e2ual protection of the la's. !# the . for e0ample/ to !e sei"ed and hung !# the "osse +o%i#a#us 'ithout regular trial. and the po'ers of Congress under them are different.ourteenth Amendment 'hich are not. 5o'. The amendments are different. incidents or elements of slaver#.ourteenth Amendment. 'ould !e the ta(ing of private propert# 'ithout due process of la'. uch. or allo'ing persons 'ho have committed certain crimes . . )age 1*+ .nited tates. is it an# more than one of those rights 'hich the states.ourteenth Amendment e0tends its protection to races and classes. 3hat is called class legislation 'ould !elong to this categor#. corrective in its character. The .horse stealing. are for!idden to den# to . !ut to slaver#. from depriving them of life. !ut 'ould not necessaril# !e so to the Thirteenth. to ad1ust 'hat ma# !e called the social rights of men and races in the communit#. . a pu!lic conve#ance.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 . or to an# individual.ourteenth. or den#ing to an# person. under the authorit# given !# the Thirteenth Amendment.nited tates. . 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 . as 'e have alread# sho'n. and from den#ing to an# the e2ual protection of the la's. or to den# to an# of them the e2ual protection of the la's. conceding for the sa(e of the argument that the admission to an inn. therefore. or to deprive them of life. 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 . 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. and can onl# !e. 'hether sanctioned !# tate legislation or not9 under the . and prohi!its an# tate legislation 'hich has the effect of den#ing to an# race or class. so far as necessar# or proper to eradicate all forms and incidents of slaver# and involuntar# servitude. 28 3e must not forget that the province and scope of the Thirteenth and . . 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. the right to pursue an# peaceful )age 1*+ . in an# 1ust sense. and 'ithout an# sanction or support from an# tate la' or regulation. or propert# 'ithout due process of la'. 2avocations allo'ed to others.. The onl# 2uestion under the present head. li!ert# or propert# 'ithout due process of la'.ourteenth Amendment.ourteenth Amendment.

or ma# adopt. for counteracting the effect of tate la's or tate action prohi!ited !# the . !# the la's of all the tates. to furnish proper accommodation to all uno!1ectiona!le persons 'ho in good faith appl# for them. 24 other matters of intercourse or !usiness. and that. Mere discriminations on account of race or color 'ere not regarded as !adges of slaver#.ourteenth Amendment. the en1o#ment of e2ual rights in all these respects has !ecome esta!lished !# constitutional enactment. '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 . and no other ground of authorit# for its passage !eing suggested. or deal 'ith in )age 1*+ . %nn(eepers and pu!lic carriers. .'hich merel# a!olishes slaver#/. and. There 'ere thousands of free colored people in this countr# !efore the a!olition of slaver#. so far as 'e are a'are. %n the cases of the Uni#ed S#a#es & Mi+$ael Ryan! and of Ri+$ard A& Robinson and .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. !ut !# force of the Thirteenth and . at least so far as its operation in the several tates is concerned. 'e are forced to the conclusion that such an act of refusal has nothing to do 'ith slaver# or involuntar# servitude. %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. it is not !# force of the Thirteenth Amendment . if those la's are adverse to his rights and do not protect him. 3hen a man has emerged from slaver#. li!ert# and propert# the same as 'hite citi"ens.C$arles#on . en1o#ing all the essential rights of life. refusing the accommodation.ourteenth Amendment. %f. and 'hen his rights as a citi"en or a man are to !e protected in the ordinar# modes !# 'hich other men:s rights are protected. !# the aid of !eneficent legislation. !e 1ustl# regarded as imposing an# !adge of slaver# or servitude upon the applicant. or. are !ound.. properl# cogni"a!le !# the la's of the tate and presuma!l# su!1ect to redress !# those la's until the contrar# appearsF After giving to these 2uestions all the consideration 'hich their importance demands. the o'ner of the inn. if it is violative of an# right of the part#. This conclusion disposes of the cases no' under consideration. =n the 'hole. it must necessaril# !e declared void.ourteenth Amendment of the Constitution. %f the la's themselves ma(e an# un1ust discrimination amena!le to the prohi!itions of the . to the e0tent of their facilities.ifteenth Amendments.ife & T$e Me%"$is . or as to the people he 'ill ta(e into his coach or ca! or car. pu!lic conve#ances and places of amusement. or !ecause he 'as su!1ected to discriminations in the en1o#ment of accommodations in inns. his remed# 'ill !e found in the corrective legislation 'hich Congress has adopted. since that time. or onl# as inflicting an ordinar# civil in1ur#. has sha(en off the insepara!le concomitants of that state. the pu!lic conve#ance or place of amusement. #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 admit to his concert or theatre. Congress has full po'er to afford a remed# under that amendment and in accordance 'ith it. 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. his redress is to !e sought under the la's of the tate.

. % mean onl#. if need !e. and places of pu!lic amusement ma# !e conducted.. advantages. facilities. There seems to !e no su!stantial difference !et'een m# !rethren and m#self as to the purpose of Congress. %n the other cases. and privileges of inns. 1874. 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. 'as to prevent race discrimination in respect of the accommodations and facilities of inns. The second section provides a penalt# against an#one den#ing. 'hich the# attempted to accomplish. T%CB >ARDA5 dissenting. to e0press an earnest conviction that the court has departed from the familiar rule re2uiring. and 'hich the# supposed the# had accomplished !# changes in their fundamental la'. or aiding or inciting the denial. through national legislation. or previous condition of servitude. upon grounds entirel# too narro' and artificial. 26 Railroad Co%"any! the 1udgments must !e affirmed. shall not !e applied so as to 'or( a )age 1*+ . 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. 'hatever the# ma# !e. in this form. % 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. and . !ut onl# declares that such conditions and limitations. 27 discrimination solel# !ecause of race. %t does not assume to define the general conditions and limitations under 'hich inns. 1874. and places of pu!lic amusement.. And i# is so ordered& MR. A. pu!lic conve#ances. in the interpretation of constitutional provisions. pu!lic conve#ances. entitled 7An Act to protect all citi"ens in their civil and legal rights. C# this % do not mean that the determination of these cases should have !een materiall# controlled !# considerations of mere e0pedienc# or polic#. of an# citi"en. color. it seems to me. 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. 7%t is not the 'ords of the la'. that full effect !e given to the intent 'ith 'hich the# 'ere adopted. adopted in the interest of li!ert# and for the purpose of securing. !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.7 are unconstitutional and void.)age 1*+ . and that 1udgment should !e rendered upon the several indictments in those cases accordingl#. the ans'er to !e given 'ill !e that the first and second sections of the act of Congress of March 1st. pu!lic conve#ances. The opinion in these cases proceeds. . The purpose of the first section of the act of Congress of March 1.

. the court sa#s. 28 in favor of the validit# of a statute. %n section 2 of article %& of the Constitution. 7a 2uestion of much delicac# 'hich ought seldom. 'hen re2uired in the regular course of 1udicial proceedings. 7is at all times. 718. %n this mode. . !e discharged from such service or la!or. The court ad1udges. that Congress is 'ithout po'er.nited tates. the legislation of Congress. 'e ma# o!tain (e#s 'ith 'hich to open the mind of the people and discover the thought intended to !e e0pressed. . . 3hether the legislative department of the government has transcended the limits of its constitutional po'ers.7 said this court in Fle#+$er & Pe+'! 6 Cr.ugitive lave Da' of 17+8. pu!lic conve#ances. % thin( erroneousl#. unconstitutional and void. 'e saidE 7%t is our dut#. The safet# of our institutions depends in no small degree on a strict o!servance of this salutar# rule. Congress passed the .theatres. 128. under the la's thereof. 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. as indicated !# the provisions of the Constitution. and that the first and second sections of the statute are. =ne !ranch of the government cannot encroach on the domain of another 'ithout danger. it 'as provided that 7no person held to service or la!or in one tate. or 'ho had !een in a previous condition of servitude. and the decisions of this court. and this continues until the contrar# is sho'n !e#ond a rational dou!t. !et'een the national government and the institution of slaver#. The effect of the statute. and places of amusement as are en1o#ed !# 'hite persons. in conse2uence of an# la' or regulation therein. if ever.7 More recentl#. in all their parts. and citi"ens of other races shall have the same accommodations and privileges in all inns. !ut shall !e delivered up on claim of the part# to 'hom such service or la!or ma# !e due. in Sin'in( Fund Cases! ++ . is that colored citi"ens.7 Cefore considering the language and scope of these amendments. and vice versa. shall. escaping into another.7 .ourteenth Amendment. !ut this declaration should never !e made e0cept in a clear case. . esta!lishing a mode for the recover# of fugitive slaves and prescri!ing a penalt# against an# person 'ho should (no'ingl# and 'illingl# . to esta!lish such regulations.. 'hether formerl# slaves or not. . to declare an act of Congress void if not 'ithin the legislative po'er of the . !ut that such en1o#ment shall not !e su!1ect to conditions applica!le onl# to citi"ens of a particular race or color. to !e decided in the affirmative in a dou!tful case. prior to their adoption. Bver# possi!le presumption is )age 1*+ .nder the authorit# of this clause. it 'ill !e proper to recall the relations su!sisting. under either the Thirteenth or .

thus escaping. 'ould seem to !e that.o!struct or hinder the master. as are necessar# and proper. .7 Again. 'hen the end is re2uired the means are given. 'hich could not rightfull# act !e#ond its o'n territorial limits 7 . or attorne# in sei"ing. pea(ing !# MR. to attain the ends proposed9 That the Constitution recogni"ed the master:s right of propert# in his fugitive slave. arresting. %n Pri(( & Co%%on*eal#$ of Pennsyl ania! 16 )et. regardless of an# tate la' or regulation or local custom 'hatsoever9 and. this court had occasion to define the po'ers and duties of Congress in reference to fugitives from la!or. and 'hen the dut# is en1oined. 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. his agent. the right of sei"ing and recovering him. delivered up on claim. or 'ho should har!or or conceal the slave after notice that he 'as a fugitive. 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*+ . as incidental thereto. 48+. !ut. A for#iori! it 'ould !e more o!1ectiona!le to suppose that a po'er 'hich 'as to !e the same throughout the . upon tate legislation. the fair implication 'as that the national government 'as clothed 'ith appropriate authorit# and functions to enforce it. 2+ of its e0pressl# granted po'ers. or 'ho should rescue the fugitive from him.. and recovering the fugitive. The court said 7The fundamental principle. applica!le to all cases of this sort. not prohi!ited. ma# emplo# such means. 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. or such as are appropriate. and.nion should !e confided to tate sovereignt#. and the rights 'hich it intended to secure. !eing guaranteed !# the Constitution. A. for the protection of rights guaranteed !# the Constitution. the a!ilit# to perform it is contemplated to e0ist on the part of the functionar# to 'hom it is entrusted. That the right of the master to have his slave.nion. and not upon that of the .

!# her attorne# general. solel# upon the implied po'er of Congress to enforce the master:s rights.nited tates !# 6red cott.ugitive lave Act of 184*. in fact. And this court. The provisions of that act 'ere far in advance of previous legislation. 'ere !rought into this countr# and sold as slaves GG 'as not a citi"en. upon these grounds. as did that of 17+8. 4*6. or 'ho 'ere !orn of parents 'ho had !ecome free !efore their !irth. and that. The onl# matter in issue. of pure African !lood. %t is to !e o!served from the report of )riggs: case that )enns#lvania. to 'hich reference 'ill !e made. 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.nited tates. to restrain and correct. the defendant !eing a citi"en of another tate. 8++. are citi"ens of a tate in the sense in 'hich the 'ord 7citi"en7 is used in the Constitution of the . appointed under the act. !# 1udicial instrumentalit#. 'ould !e a dangerous encroachment on tate sovereignt#. this court turned a deaf ear. %t invested commissioners. . 'ith po'er to summon the "osse +o%i#a#us for the enforcement of its provisions. for the general government to assume primar# authorit# to legislate on the su!1ect of fugitive slaves. claiming to !e a citi"en of Missouri. ad1udged it to !e 7in all of its provisions. 'hose ancestors. 'hen the# should !e emancipated.7 The onl# other case. in Able%an & ..The act of 17+8 'as. 81 and sold. Cut to such suggestions. . is that of Dred S+o## & Sanford! 1+ >o'. said the court. . through her courts or in such modes as she prescri!ed. 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.oo#$! 21 >o'. prior to the adoption of the recent amendments. %ts o!1ect 'as to assert the title of himself and famil# to freedom. ad1udged to !e a constitutional e0ercise of the po'ers of Congress.. That case 'as instituted in a circuit court of the . 3e ne0t come to the . The# placed at the disposal of the master see(ing to recover his fugitive slave su!stantiall# the 'hole po'er of the nation. pressed the argument that the o!ligation to surrender fugitive slaves 'as on the tates and for the tates. the constitutionalit# of 'hich rested.nited tates. 8* of the general government in the premises 'as. 'hether the person arrested 'as. 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. 'as 'hether the descendants of slaves thus imported )age 1*+ . a freeman or a fugitive slave9 that the sole po'er )age 1*+ . to the e0clusion of the tates. The defendant pleaded in a!atement that cott GG !eing of African descent. not to for!id and prevent in the a!sence of hostile tate action. full# authori"ed !# the Constitution of the . and ad1udged that primar# legislation !# Congress to enforce the master:s right 'as authori"ed !# the Constitution.

and treated as an ordinar# article of merchandise and traffic. 'ere not 7included.7 The 1udgment of the court 'as that the 'ords 7people of the . . The result 'as a declaration !# this court. and altogether unfit to associate 'ith the 'hite race either in social or political relations. 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. 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.%n determining that 2uestion. that the legislation and histories of the times. sho'ed 7that neither the class of persons 'ho had !een imported as slaves nor their descendants. and that the negro might 1ustl# and la'full# !e reduced to slaver# for his !enefit97 that he 'as 7!ought and sold. as 'ell as in matters of pu!lic concern. as 'ell as in politics. and the language used in the 6eclaration of %ndependence. spea(ing !# Chief Austice Tane#. 'hether the# had !ecome free or not. that 7this opinion 'as at that time fi0ed and universal in the civili"ed portion of the 'hite race.: and )age 1*+ . %t 'as regarded as an a0iom in morals. 'henever a profit could !e made !# it97 and.. or supposed to !e open to dispute. 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.nited tates7 and 7citi"ens7 meant the same thing. according to our repu!lican institutions. and men in ever# grade and position in societ# dail# and ha!ituall# acted upon it in their private pursuits. 'hich no one thought of disputing. !oth descri!ing 7the political !od# 'ho. 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#! . and so far inferior that the# had no rights 'hich the 'hite man 'as !ound to respect. 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. 'ere then ac(no'ledged as a part of the people. and 'ere not intended to !e included. 'ithout for a moment dou!ting the correctness of this opinion.

88 all intents and purposes. and immunities of such citi"ens.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. Cut. e0cluding %ndians not ta0ed. citi"ens of the .7 uch 'ere the relations 'hich formerl# e0isted !et'een the government. enfranchised !# the Thirteenth Amendment. 'hereof the part# shall have !een dul# convicted.nited tates 'ithout going through the process of naturali"ation. and the descendants..tat. 27. in the vie' 'hich % ta(e of the present case. can !e e0cluded from the !enefits or rights there!# conferred. then the colored race. in this mode.nited tates. 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. 'hether free or in !ondage. or an# place su!1ect to their 1urisdiction. !# general statute. shall e0ist 'ithin the .nited tates. 'ithin the . The po'er of Congress. of those of African !lood 'ho had !een imported into this countr# and sold as slaves. . provided that 7all persons !orn in the . The# em!race ever# race 'hich then 'as. 'hether emancipated or not. among other things. and each and ever# one of them. and shall in all respects !e su!1ect to the la's of the .nited tates to )age 1*+ . The act of 1866 in this respect 'as also li(ened to that of 18-8. and not su!1ect to an# foreign po'er. privileges.ourteenth Amendment. 1866. in this countr#. citi"ens of the . !ecame citi"ens of the . 'hether national or state.7 This amendment 'as follo'ed !# the Civil Rights Act of April +. #et remained su!1ect to their authorit#. The first section of the Thirteenth Amendment provides that 7neither slaver# nor involuntar# servitude. as such.7 1. are here!# declared to !e citi"ens of the . 'hich. ?et it is historicall# true that that amendment 'as suggested !# the condition.7 %ts second section declares that 7Congress shall have po'er to enforce this article !# appropriate legislation.nited tates prior to the adoption of the . and shall !e entitled to all the rights. of that race 'hich had !een declared !# this court to have had GG according to the opinion entertained . The terms of the Thirteenth Amendment are a!solute and universal. 5o race. in 'hich Congress declared 7that the toc(!ridge tri!e of %ndians.nited tates. e0cept as a punishment for crime.nited tates. !eing of full age. to ma(e the children. or might thereafter !e.nited tates. shall !e deemed to !e and are here!# declared to !e.7 %f the act of 1866 'as valid in conferring national citi"enship upon all em!raced !# its terms. and had no rights or privileges !ut such as those 'ho held the po'er and the government might choose to grant them. of persons naturali"ed in this countr#. it is not necessar# to e0amine this 2uestion.

ma# !e direct and primar#.. !# legislation. therefore. in the en1o#ment of those fundamental rights 'hich.nited tates. it is conceded. 'hether e0pressl# given or not. . M# !rethren admit that it esta!lished and decreed universal +i il freedo% throughout the . Degislation for that purpose. Cut the po'er conferred !# the Thirteenth Amendment does not rest upon implication or )age 1*+ . in peculiar sense. inhere in a state of freedomF )age 1*+ .. 8inference. as to the constitutional po'er of Congress to enact the . under po'ers e0pressl# granted. it 'as determined.es# Vir(inia! 1** . there 'as a fi0ed purpose to place the authorit# of Congress in the premises !e#ond the possi!ilit# of a dou!t. . !ut 'hat ma# Congress. as such. 84 . theretofore held in !ondage. 8*8. . 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. 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. to the several tates for such protection. 3e have seen that the po'er of Congress. 3hen. Cut to 'hat specific ends ma# it !e directedF This court has uniforml# held that the national government has the po'er.7 none of the privileges or immunities secured !# that instrument to citi"ens of the . %t had reference. 'ith no legal rights or privileges e0cept such as the 'hite race might choose to grant them. might choose to provideF 3ere the tates against 'hose protest the institution 'as destro#ed to !e left free.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. 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. These are the circumstances under 'hich the Thirteenth Amendment 'as proposed for adoption.nited tates. Uni#ed S#a#es & Reese! +2 . so far as national interference 'as concerned. Those 'ho framed it 'ere not ignorant of the discussion.ugitive lave Da's of 17+8 and 184*. did something more than to prohi!it slaver# as an ins#i#u#ion resting upon distinctions of race and upheld !# positive la'. in their civil rights. !# all of its departments. in their discretion. m# !rethren concede. theretofore. to uproot the institution of slaver# 'herever it e0isted in the land and to esta!lish universal freedom. had treated them as an inferior race. as those tates. !# universal concession. Therefore. e) indus#ria! po'er to enforce the Thirteenth Amendment !# appropriate legislation 'as e0pressl# granted.!# 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. The Thirteenth Amendment. to ma(e or allo' discriminations against that race. and 'hat 'ere the mischiefs to !e remedied and the grievances to !e redressed !# its adoption. !# a change in the fundamental la'. necessaril# gro'ing out of freedom. to secure and protect rights conferred or guaranteed !# the Constitution. covering man# #ears of our countr#:s histor#. and then remit the race. The# are no' recalled onl# that 'e ma# !etter understand 'hat 'as in the minds of the people 'hen that amendment 'as considered. 21-9 S#rauder & . to a people 'hich .. .. do for the protection of freedom and the rights necessaril# inhering in a state of freedom.

and 'as intended to !e made clear. !# the act of 1866. the necessar# incidents of slaver#. !# legislation. 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. and conve# propert# as is en1o#ed !# 'hite citi"ens9 that. Cut % su!mit. in respect of such civil rights as !elong to freemen of other races. 869 S#rauder . The# lie at the foundation of the Civil Rights Act of 1866. 'as the moving or principal cause of the adoption of that amendment. Congress. . !# the e0press grant of po'er contained in the second section of the Amendment. their officers and agents. 86 its incidents. and conse2uentl#. and since that institution rested 'holl# upon the inferiorit#. !ut of its !adges and incidents. Congress has to do 'ith slaver# and )age 1*+ . as it seems to me. % do not contend that the Thirteenth Amendment invests Congress 'ith authorit#. give evidence. 8*8. according to the doctrines of Pri(( & Co%%on*eal#$ of Pennsyl ania! repeated in S#rauder & . as % have said. lease. ma# enact la's to protect that people against the deprivation. !ecause of their race. and such legislation ma# !e of a direct and primar# character. purchase.es# Vir(inia! to protect the freedom esta!lished. . all discrimination against them. 'hether sanctioned !# tate legislation or not. the same right to ma(e and enforce contracts. Congress 'ould have had the po'er.. operating upon the acts of individuals. and to secure to all citi"ens of ever# race and color. the necessar# incidents of slaver#. to secure the en1o#ment of such civil rights as 'ere fundamental in freedom. These propositions !eing conceded.ourteenth 'as adopted. to sue. and to inherit. those fundamental rights 'hich are the essence of civil freedom. as the court has repeatedl# declared. so far as necessar# or proper to eradicate all forms and incidents of slaver and involuntar# servitude. their freedom necessaril# involved immunit# from. 3hether that act 'as authori"ed !# the Thirteenth Amendment alone. and protection against. are propositions 'hich ought to !e deemed indisputa!le. The# admit.>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. it is impossi!le. in the several tates. that its constitutionalit# is conclusivel# sho'n !# their opinion.. ma# !e direct and primar#. therefore. sell. under its e0press po'er to enforce that amendment !# appropriate legislation. !# implication. since slaver#. of those held in !ondage. 'hich constitute its su!stance and visi!le form9 that Congress.es# Vir(inia! 1** . or ma# en1o#. and also upon at least such individuals and corporations as e0ercise pu!lic functions and 'ield po'er and authorit# under the tate. !efore the . !e parties. 'ith all respect to them. Cut % hold that. Slau($#er$ouse Cases! 16 3all.ourteenth Amendment. that the Thirteenth Amendment esta!lished freedom9 that there are !urdens and disa!ilities. after the adoption of 'hich it 'as reenacted 'ith some additions. as a race. and 'ithout regard to previous servitude. and that legislation. operating upon tates. . passed in vie' of the Thirteenth Amendment. That it can e0ert its authorit# to that e0tent is made clear. That there are !urdens and disa!ilities 'hich constitute !adges of slaver# and servitude. to 2uestion the constitutional validit# of the Civil Rights Act of 1866. namel#. m# !rethren do not consider it necessar# to in2uire. undertoo( to remove certain !urdens and disa!ilities. be+ause of #$eir ra+e! of an# civil rights granted to other freemen in the same tate. under the Thirteenth Amendment. to define and regulate the entire !od# of the civil rights 'hich citi"ens en1o#. 'ithout the support 'hich it su!se2uentl# received from the .

an'! 6 >o'. leasing.7 To the same effect is Munn & Illinois! +.. 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'. 118. it 'as ruled that )age 1*+ . 47. !ut ma# !e e0erted to the e0tent. 88 . or e0cluding that race from the !enefit of the la's e0empting homesteads from e0ecution. prior to the adoption of the . Austice 5elson. . resident 'ithin its limits. the same right 'hich 'as accorded to 'hite persons of ma(ing and enforcing contracts and of inheriting.. and has pu!lic duties to perform. a tate had passed a statute den#ing to freemen of African descent. said that a common carrier is 7in the e0ercise of a sort of pu!lic office. and denied them the privilege of giving testimon# in the courts 'here a 'hite man 'as a part#. Recall the legislation of 1864G1866 in some of the tates. 88 railroads are pu!lic high'a#s. privileges and facilities of pu!lic conve#ances. . this court. %n Ne* 3ersey S#ea% Na i(a#ion Co& & Mer+$an#s0 .To test the correctness of this position. 16 3all. spea(ing !# Mr. %t remains no' to in2uire 'hat are the legal rights of colored persons in respect of the accommodations. purchasing. . 678. %n Ol+o## & Su"er isor! 16 3all.. . of protecting the li!erated race against discrimination in respect of legal rights !elonging to freemen 'here such discrimination is !ased upon race. 8--. li!ert# and propert# to such an e0tent that their freedom 'as of little value9 for!ade them to appear in the to'ns in an# other character than menial servants9 re2uired them to reside on and cultivate the soil. let us suppose that. and places of pu!lic amusementF Firs#! as to pu!lic conve#ances on land and 'ater.. esta!lished !# authorit# of the tate for the pu!lic use9 that the# are nonetheless pu!lic high'a#s !ecause controlled and o'ned !# private corporations9 that it is a part of the function of government to ma(e and maintain high'a#s for the convenience of the pu!lic9 that no matter 'ho is the agent. from 'hich he should not !e permitted to e0onerate himself 'ithout the assent of the parties concerned. inns. of 'hich this court in the Slau($#er$ouse )age 1*+ . 'ithout the right to purchase or o'n it9 e0cluded them from man# occupations of gain.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. 87 Cases said that it imposed upon the colored race onerous disa!ilities and !urdens9 curtailed their rights in the pursuit of life.. . 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. 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. at least.

upon these grounds alone have the courts sustained the investiture of railroad corporations 'ith the tate:s right of eminent domain. though it ma# have franchises anne0ed to and e0ercisa!le 'ithin them. 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#. 5o corporation has propert# in them. o in To*ns$i" of 4ueensbury & Cul er! 1+ 3all. it 'as for such use. the tate ma# regulate the entire management of railroads in all matters affecting the convenience and safet# of the pu!lic. in the . as. . for e0ample. %f the corporation neglect or refuse to discharge its duties to the pu!lic. under legislative authorit#. as much so as if it 'ere to !e constructed !# the tate.7 To the li(e effect are numerous ad1udications in this and the tate courts 'ith 'hich the profession is familiar. said in reference to a railroadE 7The esta!lishment of that great thoroughfare is regarded as a pu!lic 'or(. %t is true that the real and personal propert#. 8+ upon land ta(en !# the right of eminent domain !# authorit# of the common'ealth. !ut it is in trust for the pu!lic. solemnl# devoted to pu!lic use. its 'or( 'as pu!lic. !ecause of the pu!lic interest in such a corporation. and prohi!iting discriminations and favoritism. li(e a canal. lev# and collect ta0es to aid in the construction of railroads. in In$abi#an#s of . the court. intended for the pu!lic use and !enefit.7 %n Erie! E#+&! R&R& Co& & Casey! 26 )enn. . !# regulating speed. And upon this ground. 88. 287. a pu!lic easement. too. or the right of municipal corporations. referring to an act repealing the charter of a railroad. or the# could not have !een ta(en at all.pon this ground. therefore. 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. 46-. the# ma# !e compelled to permit the pu!lic to use these 'or(s in the manner in 'hich the# can !e used9 that. . the rates of fares of passengers and freight. saidE 7%t is a pu!lic high'a#.. created !# her la's as thoroughfares for commerce. compelling stops of prescri!ed length at stations. 666E 7Though the corporation IrailroadJ 'as private. esta!lished !# pu!lic authorit#. . 3hen the lands 'ere ta(en. Again. and under 'hich the tate too( possession of the road. uch !eing the relations these corporations hold to the pu!lic. turnpi(e. Railroads esta!lished )age 1*+ . necessar# to the esta!lishment and management of the railroad is vested in the corporation. or high'a#. 'hen unfettered !# contract. . the tate. . the use of 'hich is secured to the 'hole communit#.or+es#er & T$e . . in To*ns$i" of Pine 5ro e & Tal+o##!1+ 3all.or 'hat is the agenc#.Met.es#ern R&R& Cor"ora#ion! . and for the promotion of a pu!lic use. to assess. and constitutes.7 %n man# courts it has !een held that. created primaril# for pu!lic purposes and su!1ect to !e controlled for the pu!lic !enefit. it ma# !e coerced to do so !# appropriate proceedings in the name or in !ehalf of the tate. the function performed is #$a# of #$e S#a#e1 that. in its discretion. t. The sum of the ad1udged cases is that a railroad corporation is a governmental agenc#. The upreme Audicial Court of Massachusetts. ma# regulate. . are her high'a#s. although the o'ners ma# !e private companies. the land of a railroad compan# cannot !e levied on and sold under e0ecution !# a creditor.

state of freedom esta!lished in this countr#.carriers of passengers/ are no more at li!ert# to refuse a passenger. -* so necessar# and supreme that.7 Redfield on Carriers. H 7. . if the# have sufficient room and accommodations. etc. 7To constitute one an inn(eeper 'ithin the legal force of that term. %f an inn(eeper improperl# refuses to receive or provide for a guest.7 %n Re) & I ens! 7 Carrington @ )a#ne 218. if he can accommodate them. 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 sa#s Clac(stone. than an inn(eeper is to refuse suita!le room and accommodations to a guest. and all this solel# !ecause the# !elong to a particular race 'hich the nation has li!erated. the court. their horses and attendants. 7)ersonal li!ert# consists. . The Thirteenth Amendment alone o!literated the race line so far as all rights fundamental in a state of freedom are concerned. The same general o!servations 'hich have !een made as to railroads are applica!le to inns. of changing situation. deprived of their en1o#ment in common 'ith others. even in respect of rights of a character )age 1*+ . The# are not to !e sustained e0cept upon the assumption that there is. !ut. 'ithout restraint unless !# due course of la'. . in this land of universal li!ert#. and to entertain them.7 7 tor# on Cailments HH -74G-76.7 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. Austice Coleridge. . 82 B. An inn(eeper is !ound to ta(e in all travelers and 'a#faring persons. A mere private !oarding house is not an inn. and he must guard their goods 'ith proper diligence. . he must (eep a house of entertainment or lodging for all travelers or 'a#farers 'ho might choose to accept the same. in the competitions of life. a class 'hich ma# still !e discriminated against. %t means. or entitled to the privileges. he is lia!le to !e indicted therefor. saidE . 1ust 'hat it meant at common la'. for a reasona!le compensation. The 'ord 7inn7 has a technical legal signification.. of a common inn(eeper. spea(ing !# Mr.. -+. nor is its (eeper su!1ect to the responsi!ilities. in the act of 1874. 7in the po'er of locomotion. !eing of good character or conduct. or removing one:s person to 'hatever places one:s o'n inclination ma# direct.C. is ro!!ed of some of the most essential means of e0istence. .D. The# . 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. Se+ond! as to inns. a freeman is not onl# !randed as one inferior and infected. .

'hen private propert# is 7affected 'ith a pu!lic interest. This la' is founded in good sense.. 16-. the# having.N&.7 These authorities are sufficient to sho' that a (eeper of an inn is in the e0ercise of a 6uasiGpu!lic emplo#ment. 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. . '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*+ . #ou shall not. The authorit# to esta!lish and maintain them comes from the pu!lic. %t ma# !e argued that the managers of such places have no duties to perform 'ith 'hich the pu!lic are. therefore. The local government granting the license represents them as 'ell as all other races 'ithin its 1urisdiction. The colored race is a part of that pu!lic.. that the management of places of pu!lic amusement is a purel# private matter. to the effect that. -1 tender. 118. as ever#one coming and conducting himself in a proper manner has a right to !e received. concerned. and. #ou shall come to m# inn. 16+ Iargument of counsel GG omittedJ.. and reaffirmed in Pei' & C$i+a(o . M# ans'er is that places of pu!lic amusement. violates no legal right for the vindication of 'hich he ma# invo(e the aid of the courts. or the denial to him on that ground of e2ual accommodations at such places. . . in return a (ind of privilege of entertaining travelers and suppl#ing them 'ith 'hat the# 'ant.. and to another. !# la'. and he is charged 'ith certain duties and responsi!ilities to the pu!lic. in the e0ertion of its po'ers. This must !e so unless it !e GG 'hich % den# GG that the common municipal government of all the people ma#. conferred for the !enefit of all. . 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. >e has no right to sa# to one. it ceases to !e 7uris "ri a#i onl#. discriminate or authori"e discrimination against a particular race solel# !ecause of its former condition of servitude. for this purpose inn(eepers are a sort of pu!lic servants. the 2uestion 'as 'hether the tate of %llinois could fi0. and that the e0clusion of a !lac( man from a place of pu!lic amusement on account of his race. one devotes his propert# to a use in 'hich the pu!lic has . 'ithin the meaning of the act of 1874. or 'ith 'hich the pu!lic have an# right to interfere.& Rail*ay Co&! +. -2 +.7An indictment lies against an inn(eeper 'ho refuses to receive a guest.. 3hen. are such as are esta!lished and maintained under direct license of the la'.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. 'ith 'hich government has no rightful concernF %n the Munn case. % also su!mit.. 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. 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*+ . T$ird& As to places of pu!lic amusement. The la' gives him special privileges. The inn(eeper is not to select his guest. in an# legal sense.

had !ecome loaded do'n 'ith enactments 'hich. 'hose ancestors had !een imported and sold as slaves. the# could not !ecome citi"ens of a tate. the statute !oo(s of several of the tates. the mode in 'hich the# shall !e conducted. Cefore the adoption of the recent amendments. in effect.ourteenth Amendment. on Aune 16. !et'een the adoption of the Thirteenth Amendment and the proposal !# Congress of the . to some e0tent. so long as he maintains the use. 1866. practicall#. and 'ill not !e repeated. . repugnant to the Constitution.. is not. till further. 'ith the rights and privileges guaranteed to citi"ens !# the national Constitution9 further. that.nited tates. in effect. and 'ithout !eing entitled to the privileges and immunities of citi"ens of the several tates. he. it had !ecome. and places of pu!lic amusement. or even of the . 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. %t remains no' to consider these cases 'ith reference to the po'er Congress has possessed since the adoption of the . in these matters. pu!lic conve#ances. as 'e have seen. -8 and advantages of pu!lic conve#ances. 'ith the . and contract regulations. under the guarantees of the national Constitution. &agrant. could not !ecome citi"ens of a tate. of servitude. 1874. >e ma# 'ithdra' his grant !# discontinuing the use. the pu!lic have rights in respect of such places 'hich ma# !e vindicated !# the la'. inns. entered the domain of tate control and supervision. 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. !ased merel# upon race or color. the esta!lished doctrine of this court that negroes. assume to prescri!e the general conditions and limitations under 'hich inns. !# appropriate legislation. %t 'as openl# announced that 'hatever might !e the rights 'hich persons of that race had as freemen. %t does not. in respect of the accommodations )age 1*+ . to enforce the Thirteenth Amendment9 and conse2uentl#. and. %t is conse2uentl# not a matter purel# of private concern. 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.7 The doctrines of Munn & Illinois have never !een modified !# this court.ourteenth Amendment.ourteenth Amendment. under the guise of Apprentice. and places of pu!lic amusement shall !e conducted or managed. in m# 1udgment. there shall !e no discrimination. % 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. he must su!mit to the control. %t simpl# declares. conducted under the authorit# of the la'. Congress has not. as 'e have seen. and % am 1ustified upon the authorit# of that case in sa#ing that places of pu!lic amusement. conse2uentl#. 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.an interest. The la' ma# therefore regulate. since the nation has esta!lished universal freedom in this countr# for all time. sought to (eep the colored race in a condition. !ut. as % have said. the act of March 1. 'ithout reference to its enlarged po'er under the .

7 78 8 8 82 7 BC. !# means of legislation.. . that the )age 1*+ . in advance of hostile tate la's or hostile tate )age 1*+ . 'ithout due process of la'9 nor den# to an# person 'ithin its 1urisdiction the e2ual protection of the la's. 5o tate shall ma(e or enforce an# la' 'hich shall a!ridge the privileges or immunities of citi"ens of the .. secured. li!ert#. l#ing at the foundation of each and 'ithout 'hich none of them 'ould have !een suggested. 'as 7the freedom of the slave race.. in the Slau($#er$ouse Cases! declared that the one pervading purpose found in all the recent amendments. %ts first and fifth sections are in these 'ordsE 7 BC. and su!1ect to the 1urisdiction thereof. that their civil rights as citi"ens of the tate depended entirel# upon tate legislation.. the . . 8*8.nited tates and of the tate 'herein the# reside. are citi"ens of the . or propert#. in fact.nited tates9 nor shall an# tate deprive an# person of life. 1. that positive rights and privileges 'ere intended to !e secured.privileges !elonging to citi"ens. the securit# and firm esta!lishment of that freedom. That Congress shall have po'er to enforce. and E) "ar#e Vir(inia! 1** . To meet this ne' peril to the !lac( race. e0cept !# the consent of such tate9 conse2uentl#.7 %t 'as ad1udged in S#rauder & . -purposes of the nation might not !e dou!ted or defeated. under 'hat circumstances. 88+.ourteenth Amendment. . All persons !orn or naturali"ed in the . -4 . !# the .ourteenth Amendment. and !# 'a# of further enlargement of the po'er of Congress. 4.es# Vir(inia! 1** . Remem!ering that this court. and are. the provisions of this article. and m# !rethren concede.ourteenth Amendment 'as proposed for adoption. . !# appropriate legislation. Cut 'hen. 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 .nited tates. 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. and to 'hat e0tent ma# Congress.

ourteenth Amendment. !# primar# direct legislation. 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. are citi"ens of the .nited tates as citi"enship of the tate in 'hich the# respectivel# resided. the court refers to the clause of the Constitution for!idding the passage !# a tate of an# la' impairing the o!ligation of contracts. %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 . And the onl# mode in 'hich the inhi!ition upon tate la's impairing the o!ligation of contracts can !e enforced is indirectl#.nited tates or in an# department or officer thereof.proceedings. the# 'ere !rought !# this supreme act of the nation 'ithin the direct . 5o enlargement of the 1udicial po'er 'as re2uired. previousl# li!erated. there is also.nited tates.nited tates and of their respective tates. that congressional legislation must necessaril# !e predicated upon such supposed tate la's or tate proceedings.nited tates e0tends to such suits for the reason that the# are suits arising under the Constitution. % su!mit. and of the tate 'herein the# reside7 GG is of a distinctl# affirmative character.7 The# !ecame instantl# citi"ens of the .ourteenth Amendment presents the first instance in our histor# of the investiture of Congress 'ith affirmative po'er. and !e directed to the correction of their operation and effect.urther. through the courts in suits 'here the parties raise some 2uestion as to the constitutional validit# of such la's. !# legislation. had the fifth section of the .. indeed. And. . to enforce the provisions of the amendment.nited tates. %t is said that such rights.nited tates. The first clause of the first section GG 7All persons !orn or naturali"ed in the . for it is clear )age 1*+ . and su!1ect to the 1urisdiction thereof. -6 that.ourteenth Amendment. to protect a right derived from the national Constitution. !# le(isla#ion! to enfor+e an e0press prohi!ition upon the tates. in terms. po'er in Congress. 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. Authorit# is. and !# po'er given to Congress to legislate for the purpose of carr#ing su+$ "ro$ibi#ion into effect9 also. as heretofore sho'n. activel# interfere for the protection of m# of the rights. furnish a proper illustration of the scope and effect of the fifth section of the . 5o e0press po'er is given Congress to enforce. privileges. !# necessar# implication. %n illustration of its position. That clause does not. %t is not said that the 7udi+ial po'er of the nation ma# !e e0erted for the enforcement of that amendment. The . the 1udiciar# could have stric(en do'n all tate la's and nullified all tate proceedings in hostilit# to rights and privileges secured or recogni"ed !# that amendment. it created and granted as 'ell citi"enship of the . and immunities secured !# the . %n its application to the colored race. !# congressional legislation. conferred to enact all necessar# and proper la's for carr#ing into e0ecution the enumerated po'ers of Congress and all other po'ers vested !# the Constitution in the government of the . privileges. The 1udicial po'er of the . . the prohi!ition upon tate la's impairing the o!ligation of contracts. The po'er given is. and immunities are secured !# 'a# of "ro$ibi#ion against tate la's and tate proceedings affecting such rights and privileges.ourteenth Amendment !een entirel# omitted.

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

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

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

so as to ena!le Congress. that e0emption of colored citi"ens. in fact. !# legislation. 'ould 'or( a radical change in our s#stem of government. Cut it is for Congress. . Det the end !e legitimate. 'hich.nder given circumstances. The 1udiciar# ma# not. as esta!lished !# repeated decisions of this court. not the 1udiciar#. and must !e empo'ered to use an# means 'hich are. . to )age 1*+ . conducive to the e0ercise of a po'er granted !# the Constitution. to sa# that legislation is appropriate GG that is. !est adapted to the end to !e attained. 'ith respect to the means !# 'hich the po'ers it confers are to !e carried into e0ecution.3heat. . 'ith safet# to our institutions.>o' then can it !e claimed. 41 enforce rights secured !# that instrument. and permanentl# ac2uiesced in.nder other circumstances. 42 . 'hich 'ill ena!le that !od# to perform the high duties assigned to it in the manner most !eneficial to the people. let it !e 'ithin the scope of the Constitution. the court said that 7Congress must possess the choice of means. applica!le to private instruments. )age 1*+ . derived from the nation. !ut consist 'ith the letter and spirit of the Constitution. enter the domain of legislative discretion and dictate the means 'hich Congress shall emplo# in the e0ercise of its granted po'ers. -21. 'hich are plainl# adapted to that end. 'hich are not prohi!ited. 7must allo' to the national legislature that discretion. That 'ould !e sheer usurpation of the functions of a coordinate department. to !e su!1ected to that rule of construction. are constitutional. primar# direct legislation ma# !e re2uired. The sound construction of the Constitution.7 said Chief Austice Marshall. and all means 'hich are appropriate. that 'hich the court characteri"es as corrective legislation might !e deemed !# Congress appropriate and entirel# sufficient. 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. in vie' of the declarations of this court in former cases. 88. . The 'ord appropriate 'as undou!tedl# used 'ith reference to its meaning.. . 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..7 M+Cullo+$ & Maryland! . . if often repeated. . are valua!leF Are constitutional provisions. 'ithin their tates. %n Uni#ed S#a#es & Fis$er! 2 Cr. 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. enacted to secure the dearest rights of freemen and citi"ens.

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

Conse2uentl#.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. or previous condition of servitude. The tates 'ere )age 1*+ . color. uch an interpretation of the amendment is plainl# repugnant to its fifth section. . !# appropriate legislation. 4protecting citi"ens of the several tates. as held in the Slau($#er$ouse Cases! the privileges here referred to 'ere those 'hich !elonged to citi"enship of the . of the character prohi!ited !# the amendment. !# means of direct legislation. %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. against discrimination on account of his race. as distinguished from those !elonging to tate citi"enship. 44 alread# under an implied prohi!ition not to a!ridge an# privilege or immunit# !elonging to citi"ens of the . % remar( that if. !ut from the hostile action of corporations and individuals in the tates. .nited tates. or the action of tate officers. the tates are e0pressl# prohi!ited from ma(ing or enforcing la's a!ridging the privileges and immunities of citi"ens of the . impair. !# appropriate legislation. Recurring to the specific prohi!ition in the . 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. in the first clause of the first section of the article granting citi"enship. e0press and implied. !# the second clause of the first section of the . in respect of such rights. !# means . !# general. 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. of )age 1*+ .nited tates as such.. primar#.nited tates furnishes an# sufficient reason for holding or maintaining that the amendment 'as intended to den# Congress the po'er. !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. the prohi!ition upon tate la's in hostilit# to rights !elonging to citi"ens of the .ourteenth Amendment upon the ma(ing or enforcing of tate la's a!ridging the privileges of citi"ens of the . an#thing in the constitution or la's of an# tate to the contrar# not'ithstanding. conferring upon Congress po'er. %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. and 'as not intended to diminish in the slightest degree the authorit# 'hich the nation has al'a#s e0ercised of protecting.nited tates.po'er. against all discrimination in respect of their rights as citi"ens 'hich is founded on race. including the provisions.nited tates. and direct legislation. !ut all of the provisions of the amendment. or den# rights confessedl# secured !# the supreme la' of the landF %t does not seem to me that the fact that..ourteenth Amendment. And it is to !e presumed that it 'as intended !# that section to clothe Congress 'ith po'er and authorit# to meet that danger. to enforce not merel# the provisions containing prohi!itions upon the tates. The 1udiciar# could have annulled all such legislation under the provision that the Constitution shall !e the supreme la' of the land. to enforce a constitutional provision granting citi"enship GG it ma# not. !eing also citi"ens of the . it 'as impossi!le for an# tate prior to the adoption of that amendment to have enforced la's of that character.

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

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

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

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. 61 giving to passengers. is an invasion of the social rights of the 'hite race. to D#nch!urg. or pu!lic inns.fre2uent such places. that act 'as pronounced unconstitutional so far as it related to commerce !et'een the tates. !ut recited one 'hich did not sustain their validit#.7 % suggest. .ife & Me%"$is . it ma# !e remar(ed that the tate of Douisiana. reserves the 2uestion 'hether Congress. and not from the tates. this court sa#ing that. !ut to support him after. not'ithstanding it does not. The statute of 1874. omni!uses. 'ithout regard to race or color. The court. % !eg to suggest that that precise 2uestion 'as su!stantiall# presented here in the onl# one of these cases relating to railroads GG Robinson and . a citi"en of Mississippi. and !# the aid of !eneficent legislation has sha(en off the insepara!le concomitants of that state.pon this !ranch of the case.7 The one underl#ing purpose of congressional legislation has !een to ena!le the !lac( race to ta(e the ran( of mere citi"ens. no' ad1udged to !e unconstitutional.nion for the 'hite race GG to secure and protect rights !elonging to them as freemen and citi"ens. has sought to accomplish in reference to that race is 'hat had alread# !een done in ever# tate of the . . if it !e true GG 'hich % do not admit GG that such legislation 'ould !e an interference !# government 'ith the social rights of the people. profess to have !een passed in pursuance of the po'er of Congress to regulate commerceF >as it ever !een held that the 1udiciar# should overturn a statute !ecause the legislative department did not accuratel# recite therein the particular provision of the Constitution authori"ing its enactmentF 3e have often enforced municipal !onds in aid of railroad su!scriptions 'here the# failed to recite the statute authori"ing their issue. or other vehicles. Cut in Hall & De Cuir! +4 .C$arles#on Railroad Co%"any& %n that case. %t 'as not deemed enough 7to help the fee!le up. in the e0ertion of its po'er to regulate commerce among the tates. steam!oats or other 'atercrafts. upon its face. enforce among passengers on pu!lic conve#ances e2ualit# of right. upon the same terms as is permitted to 'hite citi"ens. 3hat the nation. authorit# for the e0ecution of the !ondsF . %t is. nothing more. esta!lished under the license of the la'. through Congress. in the e0ercise of its po'er to regulate commerce amongst the several tates. &irginia. 'hen a man has emerged from slaver#. might or might not pass a la' regulating rights in pu!lic conve#ances passing from one tate to another. color or previous condition of servitude. M# !rethren sa# that. that it ma# !ecome a pertinent in2uir# 'hether Congress ma#.. or places of pu!lic amusement. 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. Might not the act of 1874 !e maintained in that case as applica!le at least to commerce !et'een the tates. is for the !enefit of citi"ens of ever# race and color. purchased a railroad tic(et entitling her to !e carried from <rand Aunction. in an# statute. stage coaches. in its opinion. -87. e2ualit# of right in the accommodations of railroad and street cars. 7if the pu!lic good re2uires such legislation.. it appears that Mrs. it must come from Congress. passed a statute )age 1*+ . in 186+. The in2uir# in such cases has !een 'as there. the accommodations of pu!lic high'a#s. 'ithout regard to race. The difficult# has !een to compel a recognition of the legal right of the !lac( race to ta(e the ran( of . there must !e some stage in the progress of his elevation 'hen he ta(es the ran( of a mere citi"en. % su!mit. Ro!inson. and ceases to !e the special favorite of the la's. scarcel# 1ust to sa# that the colored race has !een the special favorite of the la's. Tennessee.

under the la'. % feel constrained to 'ithhold m# assent to the opinion of the court. To that decree GG for the due enforcement of 'hich. there cannot !e. or previous condition of servitude. 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. 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. in this repu!lic. as % conceive. 62 At ever# step in this direction. )age 1*+ . against freemen and citi"ens !ecause of their race. !# corporations and individuals 'ielding pu!lic authorit#. the most intolera!le. it ma# !e that some other race 'ill fall under the !an of race discrimination. of all t#rannies. At some future time.7 Toda# it is the colored race 'hich is denied. or 'hatever no' are. the# 'ere adopted. color.. Congress has !een invested 'ith e0press po'er GG ever#one must !o'. . . the nation has !een confronted 'ith class t#rann#. to them as a component part of the people for 'hose 'elfare and happiness government is ordained. and to secure the en1o#ment of privileges !elonging. .citi"ens. 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. The supreme la' of the land has decreed that no authorit# shall !e e0ercised in this countr# upon the !asis of discrimination. 'hatever ma# have !een. in respect of civil rights. 'hich a contemporar# Bnglish historian sa#s is. !# appropriate legislation. %f the constitutional amendments !e enforced according to the intent 'ith 'hich.or the reasons stated. rights fundamental in their freedom and citi"enship.