The Journal of Negro History, Volume 6, 1921

Justice Bradley believed, moreover, that the Civil Rights Act could not be supported by the Thirteenth Amendment in that, unlike the Fourteenth Amendment, the Thirteenth Amendment is primary and direct in abolishing slavery. "When a man has emerged from slavery," said he, "and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, ceases to be the special favorite of the laws, and when his rights as a citizen or a man, are to be protected in the ordinary modes by which other men's rights are protected." To eject a Negro from an inn or a hotel, to compel him to ride in a separate car, to deny him access and use of places maintained at public expense, according to Justice Bradley, do not constitute imposing upon the Negroes badges and incidents of slavery; for they are acts of individuals with which Congress, because of the limited powers of the Federal government, cannot have anything to do. The particular clause in the Civil Rights Act, so far as it operated on individuals in the several States was, therefore, held null and void, but the court held that it might apply to the District of Columbia and territories of the United States for which Congress might legislate directly. Since then the court has in the recent Wright Case declared null and void even that part which it formerly said might apply to territory governed directly by Congress, thus taking the position tantamount to reading into the laws of the United States and the laws of nations the segregation measures of a mediaeval ex-slaveholding commonwealth assisted by the nation in enforcing obedience to its will beyond the three mile limit on the high seas.

Although conceding that the Thirteenth Amendment was direct and primary legislation, the court held that it had nothing to do with the guarantee against that race discrimination commonly referred to in the bills of complaint as the badges and incidents of slavery. The court found the Fourteenth Amendment negative rather than direct and primary because of one of its clauses providing that "no State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States nor shall any State deprive any person of life, liberty and property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." The court was too evasive or too stupid to observe that the first clause of this amendment was an affirmation to the effect that all persons born and naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside. In other words, the court held that if there is one negative clause in a paragraph, the whole paragraph is a negation. Such sophistry deserves the condemnation of all fairminded people, when one must conclude that any person even without formal education, if he has heard the English language spoken and is of sound mind, would know better than to interpret a law so unreasonably.

In declaring this act unconstitutional the Supreme Court of the United States violated one of its own important principles of interpretation to the effect that this duty is such a delicate one, that the court in declaring a statute of Congress invalid must do so with caution, reluctance and hesitation and never until the duty becomes manifestly imperative. In the decision of Fletcher v. Peck,22 the court said that whether the legislative department of the government has transcended the limits of its constitutional power is at all times a question of much delicacy, which seldom, if ever, is to be decided in the affirmative, in a doubtful case. The position between the Constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other. In the Sinking Fund Cases23 the court said: "When required in the regular course of judicial proceedings to declare an act of Congress void if not within the legislative power of the United States, this declaration should never be made except in a clear case. Every possible presumption is in favor of the validity of a statute, and this continues until the contrary is shown beyond a rational doubt. One branch of the government cannot encroach on the domain of another without danger. The safety of our institutions depends in no small degree on a strict observance of this salutary rule." And this is exactly what happened. The judiciary here assumed the function of the legislative department. Not even a casual reader on examining these laws and the Constitution can feel that the court in this case felt such a clear and strong conviction as to the invalidity of this constitutional legislation when that tribunal, as its records show, had under different circumstances before the Civil War held a doctrine decidedly to the contrary.

Mr. Justice Harlan, therefore, dissented. He considered the opinion of the court narrow, as the substance and spirit were sacrificed by a subtle and ingenious verbal criticism. Justice Harlan believed, "that it is not the words of the law but the internal sense of it that makes the law; the letter of the law is the body, the sense and reason of the law the soul." "Constitutional provisions adopted in the interest of liberty," said Justice Harlan, "and for the purpose of securing, through national legislation, if need be, rights inhering in a state of freedom, and belonging to American citizenship, have been so construed as to defeat the end the people desire to accomplish, which they attempted to accomplish, and which they supposed they had accomplished, by changes in their fundamental law."

The court, according to Justice Harlan, although he did not mean to say that the determination in this case should have been materially controlled by considerations of mere expediency or policy, had departed from the familiar rule requiring that the purpose of the law or Constitution and the objects to be accomplished by any grant are often the most important in reaching real intent just as the debates in the convention of 1787 and the discussions in the Federalist and in the ratifying conventions of the States have often been referred to as throwing important light on clauses in the Constitution seeming to show ambiguity. The debates on the war amendment, when they were proposed and ratified, were thoroughly expounded before the court in bringing before that tribunal the intention of the members of Congress, by which the court, according to a well established principle of interpretation, should have been influenced in construing the statute in question.

The court held that legislation for the enforcement of the Thirteenth Amendment is direct and primary "but to what specific ends may it be directed?" inquired Justice Harlan. The court "had uniformly held that national government has the power, whether expressly given or not, to secure and protect rights conferred or guaranteed by the Constitution."24 Justice Harlan believed then that the doctrines should not be abandoned when the inquiry was not as to an implied power to protect the master's rights, but what Congress might, under powers expressly granted, do for the protection of freedom and the rights necessarily inhering in a state of freedom.

The Thirteenth Amendment, the court conceded, did more than prohibit slavery as an institution, resting upon distinctions of race, and upheld by positive law. The court admitted that it "established and decreed universal civil freedom throughout the United States." "But did the freedom thus established," inquired Justice Harlan, "involve more than exemption from actual slavery? Was nothing more intended than to forbid one man from owning another as property? Was it the purpose of the nation simply to destroy the institution and then remit the race, theretofore held in bondage, to the several States for such protection, in their civil rights, necessarily growing out of their freedom, as those States in their discretion might choose to provide? Were the States against whose protest the institution was destroyed to be left free, so far as national interference was concerned, to make or allow discriminations against that race, as such, in the enjoyment of those fundamental rights which by universal concession, inhere in a state of freedom?" Justice Harlan considered it indisputable that Congress in having power to abolish slavery could destroy the burdens and disabilities remaining as its badges and incidents which constitute its substance in visible form.

The court in its defense had taken as an illustration that the negative clause of the Fourteenth Amendment was not direct and primary, that although the States are prohibited from passing laws to impair the obligations of contracts this did not mean that Congress could legislate for the general enforcement of contracts throughout the States. Discomfitting his brethren on their own ground Harlan said: "A prohibition upon a State is not a power in Congress or in the national government. It is simply a denial of power to the State. The much talked of illustration of impairing the obligation of contracts, therefore, is not an example of power expressly conferred in contradistinction to that of this case and is not convincing for this would be a court matter, not a matter of Congress. The Fourteenth Amendment is the first case of conferring upon Congress affirmative power by legislation to enforce an express prohibition on the States. Judicial power was not specified but the power of Congress. The judicial power could have acted without such a clause. The Fourteenth Amendment is not merely a prohibition on State action. It made Negroes citizens of the United States and of the States. This is decidedly affirmative. This citizenship may be protected not only by the judicial branch of the government but by Congressional legislation of a primary or direct character. It is in the power of Congress to enforce the affirmative as well as the prohibitive provisions of this article. The acceptance of any doctrine to the contrary," continued Justice Harlan, "would lead to this anomalous result: that whereas prior to the amendments, Congress with the sanction of this court passed the most stringent laws—operating directly and primarily upon States and their officers and agents, as well as upon individuals—in vindication of slavery and the right of the master, it may not now, by legislation of a like primary and direct character, guard, protect, and secure the freedom established, and the most essential right of the citizenship granted, by the constitutional amendments."

It did not seem to Justice Harlan that the fact that, by the second clause of the first section of the Fourteenth Amendment, the States are expressly prohibited from making or enforcing laws abridging the rights and immunities of citizens of the United States, furnished any sufficient reason for upholding or maintaining that the amendment was intended to deny Congress the power, by general, primary, and direct legislation, of protecting citizens of the several States, being also citizens of the United States, against all discrimination, in respect of their rights as citizens, which is founded on "race, color, or previous condition of servitude." "Such an interpretation," thought he, "is plainly repugnant to its fifth section, conferring upon Congress power, by appropriate legislation, to enforce not merely the provisions containing prohibitions upon the States, but all of the provisions of the amendment, including the provisions, express and implied, in the first clause of the first section of the article granting citizenship." The prohibition of the State laws could have been negatived by judicial interpretation without the Fourteenth Amendment on the ground that they would have conflicted with the Constitution.

The court said the Fourteenth Amendment was not intended to enact a municipal code for the States. No one will gainsay this. This Amendment, moreover, is not altogether for the benefit of the Negro. It simply interferes with the local laws when they operate so as to discriminate against persons or permit agents of the States to discriminate against persons of any race on account of color or previous condition of servitude. Of what benefit was it if it did not do this? The constitutions of the several States had already secured all persons against deprivation of life, liberty or property otherwise than by due process of law, and in some form recognized the right of all persons to the equal protection of the laws. If this be the correct interpretation even, it does not follow that privileges which have been granted by the nation, may not be protected by primary legislation upon the part of Congress. Justice Harlan pointed out that it is for Congress not the judiciary, to say that legislation is appropriate, for that would be sheer usurpation of the functions of a coordinate department. Why should these rules of interpretation be abandoned in the case of maintaining the rights of the Negro guaranteed by the Constitution?

The Civil Rights Act of 1875 could have been maintained on the ground that it regulated interstate passenger traffic, as one of the cases, Robinson and Wife v. Memphis and Charleston Railroad Company, showed that Robinson a citizen of Mississippi had purchased a ticket entitling him to be carried from Grand Junction, Tennessee, to Lynchburg, Virginia. This case substantially presented the question of interstate commerce but the court reserved the question whether Congress in the exercise of its power to regulate commerce among the several States, might or might not pass a law regulating rights in public conveyances passing from one State to another. The court undertook to hide behind the fact that this specific act did not recite therein that it was enacted in pursuance of the power of Congress to regulate commerce. Justice Harlan, therefore, inquired: "Has it ever been held that the judiciary should overturn a statute, because the legislative department did not accurately recite therein the particular provision of the constitution authorizing its enactment?" On the whole, the contrary is the rule. It is sufficient to know that there is authority in the Constitution.

In this decision, too, there was the influence of the much paraded bugbear of social equality forced upon the whites. To use the inns, hotels, and parks, established by authority of the government and the places of amusement authorized as the necessary stimulus to progress, to buy a railroad ticket at the same window, ride in the same comfortable car on a limited train rather than incur the loss of time and suffer the inconvenience of inferior accommodations on a slow local train; to sleep and eat in a Pullman car so as to be refreshed for business on arriving at the end of a long journey, all of this was and is today dubbed by the reactionary courts social equality. Justice Harlan exposed this fallacy in saying: "The right, for instance, of a colored citizen to use the accommodations of a public highway, upon the same terms as are permitted to white citizens, is no more a social right than his right, under the law, to use the public streets of a city or a town, or a turnpike road, or a public market, or a post office, or his right to sit in a public building with others, of whatever race, for the purpose of hearing the political questions of the day discussed."

What did the Negro become when he was freed? What was he when, according to section 2 of Article IV of the Constitution, he became by virtue of the Fourteenth Amendment entitled to all privileges and immunities of citizens in the several States?25 From what did the race become free? If Justice Bradley had been inconveniently segregated by common carriers, driven out of inns and hotels with the sanction of local law, and deprived by a mob of the opportunity to make a living, would he have considered himself a free citizen of this or any other country? "A colored citizen of Ohio or Indiana while in the jurisdiction of Tennessee," contended Justice Harlan, "is entitled to enjoy any privilege or immunity, fundamental in citizenship, which is given to citizens of the white race in the latter State. Citizenship in this country necessarily imports at least equality of civil rights among citizens of every race in the same State." In United States v. Cruikshank26 it was held that rights of life and personal liberty are natural rights of man, and that "equality of the rights of citizens is a principle of republicanism."

Inconsistency of the Court

In the case of Hall v. DeCuir27 the court reached an important decision when an Act of Louisiana passed in 1869 to give passengers without regard to race or color equality of right in the accommodations of railroad or street cars, steamboats or other water crafts, stage coaches, omnibusses or other vehicles, was declared unconstitutional so far as it related to commerce between States.28 Here a person of color had been discriminated against by a Mississippi River navigation company which was called to answer before a United States court for violating this act.

Giving the opinion of the court, Chief Justice Waite said: "We think it may be safely said that State legislation which seeks to impose a direct burden upon inter-state commerce, or to interfere directly with its freedom does encroach upon the exclusive power of Congress. The statute now under consideration in our opinion occupies that position." "Inaction by Congress," the court held, "is equivalent to a declaration that interstate commerce shall remain free and untrammelled." This meant that the carrier was "at liberty to adopt such reasonable rules and regulations for the disposition of passengers upon his boat, while pursuing her voyage within Louisiana or without, as seemed to him best for the interest of all concerned. The statute under which this suit is brought, as construed by the State court, seeks to take away from him that power so long as he is within Louisiana, and while recognizing to the fullest extent the principle which sustains a statute unless its unconstitutionality is clearly established, we think this statute to the extent that it requires those engaged in the transportation of passengers among the several States to carry colored persons in Louisiana in the same cabin with whites is unconstitutional and void. If the public good requires such legislation it must come from Congress and not from the States."

Justice Waite here expressed his fear as to the delicate ground on which he was treading in saying: "The line which separates the powers of the States from this exclusive power of Congress is not always distinctly marked, and oftentimes it is not easy to determine on which side a particular case belongs. Judges not infrequently differ in their reasons for a decision in which they concur. Under such circumstances it would be a useless task to undertake to fix an arbitrary rule by which the line must in all cases be located. It is far better to leave a matter of such delicacy to be settled in each case upon a view of the particular rights involved." Thus the way was left clear to vary the principle of interpretation according to the color of the citizens whose rights might be involved.

In view of the subsequent decisions in separate car cases, moreover, the following portion of Justice Waite's opinion as to a clause in the law involved in the case of Hall v. DeCuir is unusually interesting. "It does not act," said he, "upon the business through the local instruments to be employed after coming within the State, from without or goes out from within. While it purports only to control the carrier when engaged within the State it must necessarily influence his conduct to some extent in the management of his business throughout his entire voyage. We confine our decision to the statute in its effect upon foreign and interstate commerce, expressing no opinion as to its validity in any other respect."29

With the rapid expansion of commerce in the United States and the consequent necessity for regulation both by the State and the United States, no power of Congress was more frequently questioned than that to regulate commerce and no litigant concerned in such constitutional questions easily escaped the consequences of the varying interpretation given this clause by the United States Supreme Court. The court, of course, accepted as a general principle that there are three spheres for the regulation of commerce, namely: that which a State cannot invade, that which the State may invade, when Congress has not interfered, and that which is reserved to the State in conformity with its police power. But as late as 1886 the nationalistic school found some encouragement in the decision of the Wabash, St. Louis and Pacific Railway Company v. Illinois30 given by Justice Miller. He said: "Notwithstanding what is there said, that is, in the decisions of Munn v. Illinois; C. B. and Q. R. R. Company v. Iowa, and Peik v. Chicago and N. W. R. R. Co.,31 this court held and asserted that it had never consciously held otherwise, that a statute of a State intended to regulate or to tax, or to impose any other restriction upon the transmission of persons or property or telegraphic messages, from one State to another, is not within the class of legislation which the States may enact in the absence of legislation by Congress; and that such statutes are void even as to the part of such transmission which may be within the State." Chief Justice Waite, and Justice Bradley and Justice Gray, however, dissented for various reasons.

In the Louisville Railway Company v. Mississippi,32 however, in 1899, the court, evidently yielding to southern public opinion, reversed itself by the decision that an interstate carrier could not run a train through Mississippi without attaching thereto a separate car for Negroes and had the audacity to argue that this is not an interference with interstate commerce.33 To show how inconsistent this interpretation was one should bear in mind that in Hall v. DeCuir the court had held that this was exactly what a State could not do in that the statute acted not upon business through local instruments to be employed after coming into the State, but directly upon business as it comes into the State from without or goes out from within, although it purported only to control the carrier when engaged within the State. It necessarily influenced the conduct of the carrier to some extent in the management of his business throughout his entire voyage. "No carrier of passengers," said the court in Hall v. DeCuir, "can conduct his business with satisfaction to himself, or comfort to those employing him, if on one side of a State line his passengers, both white and colored, must be permitted to occupy the same cabin, and on the other to be kept separate. Uniformity in the regulation by which he is to be governed from one end to the other of his route is a necessity in his business, and to secure it, Congress, which is untrammelled by State lines, has been invested with exclusive legislative power of determining what such regulation should be."

Giving the opinion in the Mississippi case, however, Justice Brewer said: "It has been often held by this court that there is a commerce wholly within the State which is not subject to the constitutional provision and the distinctions between commerce among the States and the other class of commerce between citizens of a single State and conducted within its limits exclusively is one which has been fully recognized in this court, although it may not be always easy, where the lines of these classes approach each other, to distinguish between the one and the other."34 He might have added some other comment to the effect that this court will not definitely draw the line of distinction between such classes of commerce since it desires to leave adequate room for evasion, because it had been unusually easy to find such a line in cases in which the rights of Negroes were concerned and such definite interpretation might interfere with the rights of white men. Justices Harlan and Bradley dissented on the grounds that the law imposed a burden upon an interstate carrier in that he would be fined if he did not attach an additional car for race discrimination, and that the opinion was repugnant to the principles set forth in that of Hall v. DeCuir.