U.S. Supreme Court Civil Rights Cases, 109 U.S. 3 (1883) Civil Rights Cases Submitted October Term,
1882 Decided October 16th,
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 States, not being authorized either by the XIIIth or XIVth
Amendments of the Constitution.

															2. The XIVth Amendment is prohibitory upon the States only, and
the legislation authorized to be adopted by Congress for enforcing
it is not direct legislation on the matters respecting which the
States are prohibited from making or enforcing certain laws, or
doing certain acts, but is corrective legislation such as may be
necessary or proper for counteracting and redressing the effect of
such laws or acts. Page 109 U. S. 4 The XIIIth Amendment relates only to slavery and involuntary
servitude (which it abolishes), and, although, by its reflex
action, it establishes universal freedom in the United States, and
Congress may probably pass laws directly enforcing its provisions,
yet such legislative power extends only to the subject of slavery
and its incidents, and the denial of equal accommodations in inns,
public conveyances, and places of public amusement (which is
forbidden by the sections in question), imposes no badge of slavery
or involuntary servitude upon the party but at most, infringes
rights which are protected from State aggression by the XIVth
Amendment.

															4. Whether the accommodations and privileges sought to be
protected by the 1st and 2d sections of the Civil Rights Act are or
are not rights constitutionally demandable, and if they are, in
what form they are to be protected, is not now decided.

															5. Nor is it decided whether the law, as it stands, is operative
in the Territories and District of Columbia, the decision only
relating to its validity as applied to the States.

															6. Nor is it decided whether Congress, under the commercial
power, may or may not pass a law securing to all persons equal
accommodations on lines of public conveyance between two or more
States.

															These cases were all founded on the first and second sections of
the Act of Congress known as the Civil Rights Act, passed March
1st, 1875, entitled "An Act to protect all citizens in their civil
and legal rights." 18 Stat. 335. Two of the cases, those against
Stanley and Nichols, were indictments for denying to persons of
color the accommodations and privileges of an inn or hotel; two of
them, those against Ryan and Singleton, were, one on information,
the other an indictment, for denying to individuals the privileges
and accommodations of a theatre, the information against Ryan being
for refusing a colored person a seat in the dress circle of
Maguire's theatre in San Francisco, and the indictment against
Singleton was for denying to another person, whose color was not
stated, the full enjoyment of the accommodations of the theatre
known as the Grand Opera House in New York,

															"said denial not being made for any reasons by law applicable to
citizens of every race and color, and regardless of any previous
condition of servitude."

															The case of Robinson and wife against the Memphis &
Charleston R.R. Company was an action brought in the Circuit Court
of the United States for the Western District of Tennessee to
recover the penalty of five hundred dollars Page 109 U. S. 5 given by the second section of the act, and the gravamen was the
refusal by the conductor of the railroad company to allow the wife
to ride in the ladies' car, for the reason, as stated in one of the
counts, that she was a person of African descent. The jury rendered
a verdict for the defendants in this case upon the merits, under a
charge of the court to which a bill of exceptions was taken by the
plaintiffs. The case was tried on the assumption by both parties of
the validity of the act of Congress, and the principal point made
by the exceptions was that the judge allowed evidence to go to the
jury tending to show that the conductor had reason to suspect that
the plaintiff, the wife, was an improper person because she was in
company with a young man whom he supposed to be a white man, and,
on that account, inferred that there was some improper connection
between them, and the judge charged the jury, in substance, that,
if this was the conductor's bona fide reason for excluding
the woman from the car, they might take it into consideration on
the question of the liability of the company. The case was brought
here by writ of error at the suit of the plaintiffs. The cases of
Stanley, Nichols, and Singleton came up on certificates of division
of opinion between the judges below as to the constitutionality of
the first and second sections of the act referred to, and the case
of Ryan on a writ of error to the judgment of the Circuit Court for
the District of California sustaining a demurrer to the
information.

															The Stanley, Ryan, Nichols, and Singleton cases were submitted
together by the solicitor general at the last term of court, on the
7th day of November, 1882. There were no appearances, and no briefs
filed for the defendants.

															The Robinson case was submitted on the briefs at the last term,
on the 9th day of arch, 1883. Page 109 U. S. 8 MR. JUSTICE BRADLEY delivered the opinion of the court. After
stating the facts in the above language, he continued:

															It is obvious that the primary and important question in all Page 109 U. S. 9 the cases is the constitutionality of the law, for if the law is
unconstitutional, none of the prosecutions can stand.

															The sections of the law referred to provide as follows:

															"SEC. 1. That all persons within the jurisdiction of the United
States shall be entitled to the full and equal enjoyment of the
accommodations, advantages, facilities, and privileges of inns,
public conveyances on land or water, theatres, and other places of
public amusement, subject only to the conditions and limitations
established by law and applicable alike to citizens of every race
and color, regardless of any previous condition of servitude."

															"SEC. 2. That any person who shall violate the foregoing section
by denying to any citizen, except for reasons by law applicable to
citizens of every race and color, and regardless of any previous
condition of servitude, the full enjoyment of any of the
accommodations, advantages, facilities, or privileges in said
section enumerated, or by aiding or inciting such denial, shall for
every such offence, forfeit and pay the sum of five hundred dollars
to the person aggrieved thereby, to be recovered in an action of
debt, with full costs, and shall also, for every such offence, be
deemed guilty of a misdemeanor, and, upon conviction thereof, shall
be fined not less than five hundred nor more than one thousand
dollars, or shall be imprisoned not less than thirty days nor more
than one year, Provided, That all persons may elect to sue
for the penalty aforesaid, or to proceed under their rights at
common law and by State statutes, and having so elected to proceed
in the one mode or the other, their right to proceed in the other
jurisdiction shall be barred. But this provision shall not apply to
criminal proceedings, either under this act or the criminal law of
any State; and provided further, that a judgment for the
penalty in favor of the party aggrieved, or a judgment upon an
indictment, shall be a bar to either prosecution respectively."

															Are these sections constitutional? The first section, which is
the principal one, cannot be fairly understood without attending to
the last clause, which qualifies the preceding part.

															The essence of the law is not to declare broadly that all
persons shall be entitled to the full and equal enjoyment of the
accommodations, advantages, facilities, and privileges of inns, Page 109 U. S. 10 public conveyances, and theatres, but that such enjoyment shall
not be subject to any conditions applicable only to citizens of a
particular race or color, or who had been in a previous condition
of servitude. In other words, it is the purpose of the law to
declare that, in the enjoyment of the accommodations and privileges
of inns, public conveyances, theatres, and other places of public
amusement, no distinction shall be made between citizens of
different race or color or between those who have, and those who
have not, been slaves. Its effect is to declare that, in all inns,
public conveyances, and places of amusement, colored citizens,
whether formerly slaves or not, and citizens of other races, shall
have the same accommodations and privileges in all inns, public
conveyances, and places of amusement as are enjoyed by white
citizens, and vice versa. The second section makes it a penal
offence in any person to deny to any citizen of any race or color,
regardless of previous servitude, any of the accommodations or
privileges mentioned in the first section.

															Has Congress constitutional power to make such a law? Of course,
no one will contend that the power to pass it was contained in the
Constitution before the adoption of the last three amendments. The
power is sought, first, in the Fourteenth Amendment, and the views
and arguments of distinguished Senators, advanced whilst the law
was under consideration, claiming authority to pass it by virtue of
that amendment, are the principal arguments adduced in favor of the
power. We have carefully considered those arguments, as was due to
the eminent ability of those who put them forward, and have felt,
in all its force, the weight of authority which always invests a
law that Congress deems itself competent to pass. But the
responsibility of an independent judgment is now thrown upon this
court, and we are bound to exercise it according to the best lights
we have.

															The first section of the Fourteenth Amendment (which is the one
relied on), after declaring who shall be citizens of the United
States, and of the several States, is prohibitory in its character,
and prohibitory upon the States. It declares that: Page 109 U. S. 11 "No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or property
without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws."

															It is State action of a particular character that is prohibited.
Individual invasion of individual rights is not the subject matter
of the amendment. It has a deeper and broader scope. It nullifies
and makes void all State legislation, and State action of every
kind, which impairs the privileges and immunities of citizens of
the United States or which injures them in life, liberty or
property without due process of law, or which denies to any of them
the equal protection of the laws. It not only does this, but, in
order that the national will, thus declared, may not be a mere brutum fulmen, the last section of the amendment invests
Congress with power to enforce it by appropriate legislation. To
enforce what? To enforce the prohibition. To adopt appropriate
legislation for correcting the effects of such prohibited State
laws and State acts, and thus to render them effectually null,
void, and innocuous. This is the legislative power conferred upon
Congress, and this is the whole of it. It does not invest Congress
with power to legislate upon subjects which are within the domain
of State legislation, but to provide modes of relief against State
legislation, or State action, of the kind referred to. It does not
authorize Congress to create a code of municipal law for the
regulation of private rights, but to provide modes of redress
against the operation of State laws and the action of State
officers executive or judicial when these are subversive of the
fundamental rights specified in the amendment. Positive rights and
privileges are undoubtedly secured by the Fourteenth Amendment, but
they are secured by way of prohibition against State laws and State
proceedings affecting those rights and privileges, and by power
given to Congress to legislate for the purpose of carrying such
prohibition into effect, and such legislation must necessarily be
predicated upon such supposed State laws or State proceedings, and
be directed to the correction Page 109 U. S. 12 of their operation and effect. A quite full discussion of this
aspect of the amendment may be found in United Sates v.
Cruikshank, 92 U. S. 542 ; Virginia v. Rives, 100 U. S. 313 , and Ex parte Virginia, 100 U. S. 339 .

															An apt illustration of this distinction may be found in some of
the provisions of the original Constitution. Take the subject of
contracts, for example. The Constitution prohibited the States from
passing any law impairing the obligation of contracts. This did not
give to Congress power to provide laws for the general enforcement
of contracts, nor power to invest the courts of the United States
with jurisdiction over contracts, so as to enable parties to sue
upon them in those courts. It did, however, give the power to
provide remedies by which the impairment of contracts by State
legislation might be counteracted and corrected, and this power was
exercised. The remedy which Congress actually provided was that
contained in the 25th section of the Judiciary Act of 1789, 1 Stat.
8, giving to the Supreme Court of the United States jurisdiction by
writ of error to review the final decisions of State courts
whenever they should sustain the validity of a State statute or
authority alleged to be repugnant to the Constitution or laws of
the United States. By this means, if a State law was passed
impairing the obligation of a contract and the State tribunals
sustained the validity of the law, the mischief could be corrected
in this court. The legislation of Congress, and the proceedings
provided for under it, were corrective in their character. No
attempt was made to draw into the United States courts the
litigation of contracts generally, and no such attempt would have
been sustained. We do not say that the remedy provided was the only
one that might have been provided in that case. Probably Congress
had power to pass a law giving to the courts of the United States
direct jurisdiction over contracts alleged to be impaired by a
State law, and under the broad provisions of the act of March 3d
1875, ch. 137, 18 Stat. 470, giving to the circuit courts
jurisdiction of all cases arising under the Constitution and laws
of the United States, it is possible that such jurisdiction now
exists. But under that, or any other law, it must appear as Page 109 U. S. 13 well by allegation, as proof at the trial, that the Constitution
had been violated by the action of the State legislature. Some
obnoxious State law passed, or that might be passed, is necessary
to be assumed in order to lay the foundation of any federal remedy
in the case, and for the very sufficient reason that the
constitutional prohibition is against State laws impairing
the obligation of contracts.

															And so, in the present case, until some State law has been
passed, or some State action through its officers or agents has
been taken, adverse to the rights of citizens sought to be
protected by the Fourteenth Amendment, no legislation of the United
States under said amendment, nor any proceeding under such
legislation, can be called into activity, for the prohibitions of
the amendment are against State laws and acts done under State
authority. Of course, legislation may, and should, be provided in
advance to meet the exigency when it arises, but it should be
adapted to the mischief and wrong which the amendment was intended
to provide against, and that is State laws, or State action of some
kind, adverse to the rights of the citizen secured by the
amendment. Such legislation cannot properly cover the whole domain
of rights appertaining to life, liberty and property, defining them
and providing for their vindication. That would be to establish a
code of municipal law regulative of all private rights between man
and man in society. It would be to make Congress take the place of
the State legislatures and to supersede them. It is absurd to
affirm that, because the rights of life, liberty, and property
(which include all civil rights that men have) are, by the
amendment, sought to be protected against invasion on the part of
the State without due process of law, Congress may therefore
provide due process of law for their vindication in every case, and
that, because the denial by a State to any persons of the equal
protection of the laws is prohibited by the amendment, therefore
Congress may establish laws for their equal protection. In fine,
the legislation which Congress is authorized to adopt in this
behalf is not general legislation upon the rights of the citizen,
but corrective legislation, that is, such as may be necessary and
proper for counteracting such laws as the States may Page 109 U. S. 14 adopt or enforce, and which, by the amendment, they are
prohibited from making or enforcing, or such acts and proceedings
as the States may commit or take, and which, by the amendment, they
are prohibited from committing or taking. It is not necessary for
us to state, if we could, what legislation would be proper for
Congress to adopt. It is sufficient for us to examine whether the
law in question is of that character.

															An inspection of the law shows that it makes no reference
whatever to any supposed or apprehended violation of the Fourteenth
Amendment on the part of the States. It is not predicated on any
such view. It proceeds ex directo to declare that certain
acts committed by individuals shall be deemed offences, and shall
be prosecuted and punished by proceedings in the courts of the
United States. It does not profess to be corrective of any
constitutional wrong committed by the States; it does not make its
operation to depend upon any such wrong committed. It applies
equally to cases arising in States which have the justest laws
respecting the personal rights of citizens, and whose authorities
are ever ready to enforce such laws, as to those which arise in
States that may have violated the prohibition of the amendment. In
other words, it steps into the domain of local jurisprudence, and
lays down rules for the conduct of individuals in society towards
each other, and imposes sanctions for the enforcement of those
rules, without referring in any manner to any supposed action of
the State or its authorities.

															If this legislation is appropriate for enforcing the
prohibitions of the amendment, it is difficult to see where it is
to stop. Why may not Congress, with equal show of authority, enact
a code of laws for the enforcement and vindication of all rights of
life, liberty, and property? If it is supposable that the States
may deprive persons of life, liberty, and property without due
process of law (and the amendment itself does suppose this), why
should not Congress proceed at once to prescribe due process of law
for the protection of every one of these fundamental rights, in
every possible case, as well as to prescribe equal privileges in
inns, public conveyances, and theatres? The truth is that the
implication of a power to legislate in this manner is based Page 109 U. S. 15 upon the assumption that, if the States are forbidden to
legislate or act in a particular way on a particular subject, and
power is conferred upon Congress to enforce the prohibition, this
gives Congress power to legislate generally upon that subject, and
not merely power to provide modes of redress against such State
legislation or action. The assumption is certainly unsound. It is
repugnant to the Tenth Amendment of the Constitution, which
declares that powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to
the States respectively or to the people.

															We have not overlooked the fact that the fourth section of the
act now under consideration has been held by this court to be
constitutional. That section declares

															"that no citizen, possessing all other qualifications which are
or may be prescribed by law, shall be disqualified for service as
grand or petit juror in any court of the United States, or of any
State, on account of race, color, or previous condition of
servitude, and any officer or other person charged with any duty in
the selection or summoning of jurors who shall exclude or fail to
summon any citizen for the cause aforesaid, shall, on conviction
thereof, be deemed guilty of a misdemeanor, and be fined not more
than five thousand dollars."

															In Ex parte Virginia, 100 U. S. 339 , it
was held that an indictment against a State officer under this
section for excluding persons of color from the jury list is
sustainable. But a moment's attention to its terms will show that
the section is entirely corrective in its character.
Disqualifications for service on juries are only created by the
law, and the first part of the section is aimed at certain
disqualifying laws, namely, those which make mere race or color a
disqualification, and the second clause is directed against those
who, assuming to use the authority of the State government, carry
into effect such a rule of disqualification. In the Virginia case,
the State, through its officer, enforced a rule of disqualification
which the law was intended to abrogate and counteract. Whether the
statute book of the State actually laid down any such rule of
disqualification or not, the State, through its officer, enforced
such a rule, and it is against such State action, through its
officers and agents, that the last clause of the section is
directed. Page 109 U. S. 16 This aspect of the law was deemed sufficient to divest it of any
unconstitutional character, and makes it differ widely from the
first and second sections of the same act which we are now
considering.

															These sections, in the objectionable features before referred
to, are different also from the law ordinarily called the "Civil
Rights Bill," originally passed April 9th, 1866, 14 Stat. 27, ch.
31, and reenacted with some modifications in sections 16, 17, 18,
of the Enforcement Act, passed ay 31st, 1870, 16 Stat. 140, ch.
114. That law, as reenacted, after declaring that all persons
within the jurisdiction of the United States shall have the same
right in every State and Territory to make and enforce contracts,
to sue, be parties, give evidence, and to the full and equal
benefit of all laws and proceedings for the security of persons and
property as is enjoyed by white citizens, and shall be subject to
like punishment, pains, penalties, taxes, licenses and exactions of
every kind, and none other, any law, statute, ordinance, regulation
or custom to the contrary notwithstanding, proceeds to enact that
any person who, under color of any law, statute, ordinance,
regulation or custom, shall subject, or cause to be subjected, any
inhabitant of any State or Territory to the deprivation of any
rights secured or protected by the preceding section (above
quoted), or to different punishment, pains, or penalties, on
account of such person's being an alien, or by reason of his color
or race, than is prescribed for the punishment of citizens, shall
be deemed guilty of a misdemeanor, and subject to fine and
imprisonment as specified in the act. This law is clearly
corrective in its character, intended to counteract and furnish
redress against State laws and proceedings, and customs having the
force of law, which sanction the wrongful acts specified. In the
Revised Statutes, it is true, a very important clause, to-wit, the
words "any law, statute, ordinance, regulation or custom to the
contrary notwithstanding," which gave the declaratory section its
point and effect, are omitted; but the penal part, by which the
declaration is enforced, and which is really the effective part of
the law, retains the reference to State laws by making the penalty
apply only to those who should subject Page 109 U. S. 17 parties to a deprivation of their rights under color of any
statute, ordinance, custom, etc., of any State or Territory, thus
preserving the corrective character of the legislation. Rev. St. §§
177, 1978, 1979, 5510. The Civil Rights Bill here referred to is
analogous in its character to what a law would have been under the
original Constitution, declaring that the validity of contracts
should not be impaired, and that, if any person bound by a contract
should refuse to comply with it, under color or pretence that it
had been rendered void or invalid by a State law, he should be
liable to an action upon it in the courts of the United States,
with the addition of a penalty for setting up such an unjust and
unconstitutional defence.

															In this connection, it is proper to state that civil rights,
such as are guaranteed by the Constitution against State
aggression, cannot be impaired by the wrongful acts of individuals,
unsupported by State authority in the shape of laws, customs, or
judicial or executive proceedings. The wrongful act of an
individual, unsupported by any such authority, is simply a private
wrong, or a crime of that individual; an invasion of the rights of
the injured party, it is true, whether they affect his person, his
property, or his reputation; but if not sanctioned in some way by
the State, or not done under State authority, his rights remain in
full force, and may presumably be vindicated by resort to the laws
of the State for redress. An individual cannot deprive a man of his
right to vote, to hold property, to buy and sell, to sue in the
courts, or to be a witness or a juror; he may, by force or fraud,
interfere with the enjoyment of the right in a particular case; he
may commit an assault against the person, or commit murder, or use
ruffian violence at the polls, or slander the good name of a fellow
citizen; but, unless protected in these wrongful acts by some
shield of State law or State authority, he cannot destroy or injure
the right; he will only render himself amenable to satisfaction or
punishment, and amenable therefor to the laws of the State where
the wrongful acts are committed. Hence, in all those cases where
the Constitution seeks to protect the rights of the citizen against
discriminative and unjust laws of the State by prohibiting such
laws, it is not individual offences, but abrogation and Page 109 U. S. 18 denial of rights, which it denounces and for which it clothes
the Congress with power to provide a remedy. This abrogation and
denial of rights for which the States alone were or could be
responsible was the great seminal and fundamental wrong which was
intended to be remedied. And the remedy to be provided must
necessarily be predicated upon that wrong. It must assume that, in
the cases provided for, the evil or wrong actually committed rests
upon some State law or State authority for its excuse and
perpetration.

															Of course, these remarks do not apply to those cases in which
Congress is clothed with direct and plenary powers of legislation
over the whole subject, accompanied with an express or implied
denial of such power to the States, as in the regulation of
commerce with foreign nations, among the several States, and with
the Indian tribes, the coining of money, the establishment of post
offices and post roads, the declaring of war, etc. In these cases,
Congress has power to pass laws for regulating the subjects
specified in every detail, and the conduct and transactions of
individuals in respect thereof. But where a subject is not
submitted to the general legislative power of Congress, but is only
submitted thereto for the purpose of rendering effective some
prohibition against particular State legislation or State action in
reference to that subject, the power given is limited by its
object, and any legislation by Congress in the matter must
necessarily be corrective in its character, adapted to counteract
and redress the operation of such prohibited State laws or
proceedings of State officers.

															If the principles of interpretation which we have laid down are
correct, as we deem them to be (and they are in accord with the
principles laid down in the cases before referred to, as well as in
the recent case of United States v. Harris, 106 U.
S. 629 ), it is clear that the law in question cannot be
sustained by any grant of legislative power made to Congress by the
Fourteenth Amendment. That amendment prohibits the States from
denying to any person the equal protection of the laws, and
declares that Congress shall have power to enforce, by appropriate
legislation, the provisions of the amendment. The law in question,
without any reference to adverse State legislation on the
subject, Page 109 U. S. 19 declares that all persons shall be entitled to equal
accommodations and privileges of inns, public conveyances, and
places of public amusement, and imposes a penalty upon any
individual who shall deny to any citizen such equal accommodations
and privileges. This is not corrective legislation; it is primary
and direct; it takes immediate and absolute possession of the
subject of the right of admission to inns, public conveyances, and
places of amusement. It supersedes and displaces State legislation
on the same subject, or only allows it permissive force. It ignores
such legislation, and assumes that the matter is one that belongs
to the domain of national regulation. Whether it would not have
been a more effective protection of the rights of citizens to have
clothed Congress with plenary power over the whole subject is not
now the question. What we have to decide is whether such plenary
power has been conferred upon Congress by the Fourteenth Amendment,
and, in our judgment, it has not.

															We have discussed the question presented by the law on the
assumption that a right to enjoy equal accommodation and privileges
in all inns, public conveyances, and places of public amusement is
one of the essential rights of the citizen which no State can
abridge or interfere with. Whether it is such a right or not is a
different question which, in the view we have taken of the validity
of the law on the ground already stated, it is not necessary to
examine.

															We have also discussed the validity of the law in reference to
cases arising in the States only, and not in reference to cases
arising in the Territories or the District of Columbia, which are
subject to the plenary legislation of Congress in every branch of
municipal regulation. Whether the law would be a valid one as
applied to the Territories and the District is not a question for
consideration in the cases before us, they all being cases arising
within the limits of States. And whether Congress, in the exercise
of its power to regulate commerce amongst the several States, might
or might not pass a law regulating rights in public conveyances
passing from one State to another is also a question which is not
now before us, as the sections in question are not conceived in any
such view. Page 109 U. S. 20 But the power of Congress to adopt direct and primary, as
distinguished from corrective, legislation on the subject in hand
is sought, in the second place, from the Thirteenth Amendment,
which abolishes slavery. This amendment declares

															"that neither slavery, nor involuntary servitude, except as a
punishment for crime, whereof the party shall have been duly
convicted, shall exist within the United States, or any place
subject to their jurisdiction,"

															and it gives Congress power to enforce the amendment by
appropriate legislation.

															This amendment, as well as the Fourteenth, is undoubtedly
self-executing, without any ancillary legislation, so far as its
terms are applicable to any existing state of circumstances. By its
own unaided force and effect, it abolished slavery and established
universal freedom. Still, legislation may be necessary and proper
to meet all the various cases and circumstances to be affected by
it, and to prescribe proper modes of redress for its violation in
letter or spirit. And such legislation may be primary and direct in
its character, for the amendment is not a mere prohibition of State
laws establishing or upholding slavery, but an absolute declaration
that slavery or involuntary servitude shall not exist in any part
of the United States.

															It is true that slavery cannot exist without law, any more than
property in lands and goods can exist without law, and, therefore,
the Thirteenth Amendment may be regarded as nullifying all State
laws which establish or uphold slavery. But it has a reflex
character also, establishing and decreeing universal civil and
political freedom throughout the United States, and it is assumed
that the power vested in Congress to enforce the article by
appropriate legislation clothes Congress with power to pass all
laws necessary and proper for abolishing all badges and incidents
of slavery in the United States, and, upon this assumption ,it is
claimed that this is sufficient authority for declaring by law that
all persons shall have equal accommodations and privileges in all
inns, public conveyances, and places of amusement, the argument
being that the denial of such equal accommodations and privileges
is, in itself, a subjection to a species of servitude within the
meaning of the amendment. Conceding the major proposition to be
true, that Page 109 U. S. 21 Congress has a right to enact all necessary and proper laws for
the obliteration and prevention of slavery with all its badges and
incidents, is the minor proposition also true, that the denial to
any person of admission to the accommodations and privileges of an
inn, a public conveyance, or a theatre does subject that person to
any form of servitude, or tend to fasten upon him any badge of
slavery? If it does not, then power to pass the law is not found in
the Thirteenth Amendment.

															In a very able and learned presentation of the cognate question
as to the extent of the rights, privileges and immunities of
citizens which cannot rightfully be abridged by state laws under
the Fourteenth Amendment, made in a former case, a long list of
burdens and disabilities of a servile character, incident to feudal
vassalage in France, and which were abolished by the decrees of the
National Assembly, was presented for the purpose of showing that
all inequalities and observances exacted by one man from another
were servitudes or badges of slavery which a great nation, in its
effort to establish universal liberty, made haste to wipe out and
destroy. But these were servitudes imposed by the old law, or by
long custom, which had the force of law, and exacted by one man
from another without the latter's consent. Should any such
servitudes be imposed by a state law, there can be no doubt that
the law would be repugnant to the Fourteenth, no less than to the
Thirteenth, Amendment, nor any greater doubt that Congress has
adequate power to forbid any such servitude from being exacted.

															But is there any similarity between such servitudes and a denial
by the owner of an inn, a public conveyance, or a theatre of its
accommodations and privileges to an individual, even though the
denial be founded on the race or color of that individual? Where
does any slavery or servitude, or badge of either, arise from such
an act of denial? Whether it might not be a denial of a right
which, if sanctioned by the state law, would be obnoxious to the
prohibitions of the Fourteenth Amendment is another question. But
what has it to do with the question of slavery?

															It may be that, by the Black Code (as it was called), in the
times when slavery prevailed, the proprietors of inns and
public Page 109 U. S. 22 conveyances were forbidden to receive persons of the African
race because it might assist slaves to escape from the control of
their masters. This was merely a means of preventing such escapes,
and was no part of the servitude itself. A law of that kind could
not have any such object now, however justly it might be deemed an
invasion of the party's legal right as a citizen, and amenable to
the prohibitions of the Fourteenth Amendment.

															The long existence of African slavery in this country gave us
very distinct notions of what it was and what were its necessary
incidents. Compulsory service of the slave for the benefit of the
master, restraint of his movements except by the master's will,
disability to hold property, to make contracts, to have a standing
in court, to be a witness against a white person, and such like
burdens and incapacities were the inseparable incidents of the
institution. Severer punishments for crimes were imposed on the
slave than on free persons guilty of the same offences. Congress,
as we have seen, by the Civil Rights Bill of 1866, passed in view
of the Thirteenth Amendment before the Fourteenth was adopted,
undertook to wipe out these burdens and disabilities, the necessary
incidents of slavery constituting its substance and visible form,
and to secure to all citizens of every race and color, and without
regard to previous servitude, those fundamental rights which are
the essence of civil freedom, namely, the same right to make and
enforce contracts, to sue, be parties, give evidence, and to
inherit, purchase, lease, sell and convey property as is enjoyed by
white citizens. Whether this legislation was fully authorized by
the Thirteenth Amendment alone, without the support which it
afterward received from the Fourteenth Amendment, after the
adoption of which it was reenacted with some additions, it is not
necessary to inquire. It is referred to for the purpose of showing
that, at that time (in 1866), Congress did not assume, under the
authority given by the Thirteenth Amendment, to adjust what may be
called the social rights of men and races in the community, but
only to declare and vindicate those fundamental rights which
appertain to the essence of citizenship, and the enjoyment or
deprivation of which constitutes the essential distinction between
freedom and slavery. Page 109 U. S. 23 We must not forget that the province and scope of the Thirteenth
and Fourteenth amendments are different: the former simply
abolished slavery; the latter prohibited the States from abridging
the privileges or immunities of citizens of the United States, from
depriving them of life, liberty, or property without due process of
law, and from denying to any the equal protection of the laws. The
amendments are different, and the powers of Congress under them are
different. What Congress has power to do under one it may not have
power to do under the other. Under the Thirteenth Amendment, it has
only to do with slavery and its incidents. Under the Fourteenth
Amendment, it has power to counteract and render nugatory all State
laws and proceedings which have the effect to abridge any of the
privileges or immunities of citizens of the United States, or to
deprive them of life, liberty or property without due process of
law, or to deny to any of them the equal protection of the laws.
Under the Thirteenth Amendment, the legislation, so far as
necessary or proper to eradicate all forms and incidents of slavery
and involuntary servitude, may be direct and primary, operating
upon the acts of individuals, whether sanctioned by State
legislation or not; under the Fourteenth, as we have already shown,
it must necessarily be, and can only be, corrective in its
character, addressed to counteract and afford relief against State
regulations or proceedings.

															The only question under the present head, therefore, is whether
the refusal to any persons of the accommodations of an inn or a
public conveyance or a place of public amusement by an individual,
and without any sanction or support from any State law or
regulation, does inflict upon such persons any manner of servitude
or form of slavery as those terms are understood in this country?
Many wrongs may be obnoxious to the prohibitions of the Fourteenth
Amendment which are not, in any just sense, incidents or elements
of slavery. Such, for example, would be the taking of private
property without due process of law, or allowing persons who have
committed certain crimes (horse stealing, for example) to be seized
and hung by the posse comitatus without regular trial, or
denying to any person, or class of persons, the right to pursue any
peaceful Page 109 U. S. 24 avocations allowed to others. What is called class legislation
would belong to this category, and would be obnoxious to the
prohibitions of the Fourteenth Amendment, but would not necessarily
be so to the Thirteenth, when not involving the idea of any
subjection of one man to another. The Thirteenth Amendment has
respect not to distinctions of race or class or color, but to
slavery. The Fourteenth Amendment extends its protection to races
and classes, and prohibits any State legislation which has the
effect of denying to any race or class, or to any individual, the
equal protection of the laws.

															Now, conceding for the sake of the argument that the admission
to an inn, a public conveyance, or a place of public amusement on
equal terms with all other citizens is the right of every man and
all classes of men, is it any more than one of those rights which
the states, by the Fourteenth Amendment, are forbidden to deny to
any person? And is the Constitution violated until the denial of
the right has some State sanction or authority? Can the act of a
mere individual, the owner of the inn, the public conveyance or
place of amusement, refusing the accommodation, be justly regarded
as imposing any badge of slavery or servitude upon the applicant,
or only as inflicting an ordinary civil injury, properly cognizable
by the laws of the State and presumably subject to redress by those
laws until the contrary appears?

															After giving to these questions all the consideration which
their importance demands, we are forced to the conclusion that such
an act of refusal has nothing to do with slavery or involuntary
servitude, and that, if it is violative of any right of the party,
his redress is to be sought under the laws of the State, or, if
those laws are adverse to his rights and do not protect him, his
remedy will be found in the corrective legislation which Congress
has adopted, or may adopt, for counteracting the effect of State
laws or State action prohibited by the Fourteenth Amendment. It
would be running the slavery argument into the ground to make it
apply to every act of discrimination which a person may see fit to
make as to the guests he will entertain, or as to the people he
will take into his coach or cab or car, or admit to his concert or
theatre, or deal with in Page 109 U. S. 25 other matters of intercourse or business. Innkeepers and public
carriers, by the laws of all the States, so far as we are aware,
are bound, to the extent of their facilities, to furnish proper
accommodation to all unobjectionable persons who in good faith
apply for them. If the laws themselves make any unjust
discrimination amenable to the prohibitions of the Fourteenth
Amendment, Congress has full power to afford a remedy under that
amendment and in accordance with it.

															When a man has emerged from slavery, 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 and 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. There were thousands of free colored
people in this country before the abolition of slavery, enjoying
all the essential rights of life, liberty and property the same as
white citizens, yet no one at that time thought that it was any
invasion of his personal status as a freeman because he was not
admitted to all the privileges enjoyed by white citizens, or
because he was subjected to discriminations in the enjoyment of
accommodations in inns, public conveyances and places of amusement.
Mere discriminations on account of race or color were not regarded
as badges of slavery. If, since that time, the enjoyment of equal
rights in all these respects has become established by
constitutional enactment, it is not by force of the Thirteenth
Amendment (which merely abolishes slavery), but by force of the
Thirteenth and Fifteenth Amendments.

															On the whole, we are of opinion that no countenance of authority
for the passage of the law in question can be found in either the
Thirteenth or Fourteenth Amendment of the Constitution, and no
other ground of authority for its passage being suggested, it must
necessarily be declared void, at least so far as its operation in
the several States is concerned.

															This conclusion disposes of the cases now under consideration.
In the cases of the United States v. Michael Ryan, and of Richard A. Robinson and Wife v. The Memphis &
Charleston Page 109 U. S. 26 Railroad Company, the judgments must be affirmed. In
the other cases, the answer to be given will be that the first and
second sections of the act of Congress of March 1st, 1875, entitled
"An Act to protect all citizens in their civil and legal rights,"
are unconstitutional and void, and that judgment should be rendered
upon the several indictments in those cases accordingly. And it is so ordered. MR. JUSTICE HARLAN dissenting.

															The opinion in these cases proceeds, it seems to me, upon
grounds entirely too narrow and artificial. I cannot resist the
conclusion that the substance and spirit of the recent amendments
of the Constitution have been sacrificed by a subtle and ingenious
verbal criticism.

															"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 is the soul."

															Constitutional provisions, adopted in the interest of liberty
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 ends
the people desired to accomplish, which they attempted to
accomplish, and which they supposed they had accomplished by
changes in their fundamental law. By this I do not mean that the
determination of these cases should have been materially controlled
by considerations of mere expediency or policy. I mean only, in
this form, to express an earnest conviction that the court has
departed from the familiar rule requiring, in the interpretation of
constitutional provisions, that full effect be given to the intent
with which they were adopted.

															The purpose of the first section of the act of Congress of March
1, 1875, was to prevent race discrimination in respect of the
accommodations and facilities of inns, public conveyances, and
places of public amusement. It does not assume to define the
general conditions and limitations under which inns, public
conveyances, and places of public amusement may be conducted, but
only declares that such conditions and limitations, whatever they
may be, shall not be applied so as to work a Page 109 U. S. 27 discrimination solely because of race, color, or previous
condition of servitude. The second section provides a penalty
against anyone denying, or aiding or inciting the denial, of any
citizen, of that equality of right given by the first section
except for reasons by law applicable to citizens of every race or
color and regardless of any previous condition of servitude.

															There seems to be no substantial difference between my brethren
and myself as to the purpose of Congress, for they say that the
essence of the law is not to declare broadly that all persons shall
be entitled to the full and equal enjoyment of the accommodations,
advantages, facilities, and privileges of inns, public conveyances,
and theatres, but that such enjoyment shall not be subject to
conditions applicable only to citizens of a particular race or
color, or who had been in a previous condition of servitude. The
effect of the statute, the court says, is that colored citizens,
whether formerly slaves or not, and citizens of other races shall
have the same accommodations and privileges in all inns, public
conveyances, and places of amusement as are enjoyed by white
persons, and vice versa.

															The court adjudges, I think erroneously, that Congress is
without power, under either the Thirteenth or Fourteenth Amendment,
to establish such regulations, and that the first and second
sections of the statute are, in all their parts, unconstitutional
and void.

															Whether the legislative department of the government has
transcended the limits of its constitutional powers, "is at all
times," said this court in Fletcher v. Peck, 6 Cr.
128,

															"a question of much delicacy which ought seldom, if ever, to be
decided in the affirmative in a doubtful case. . . . The opposition
between the Constitution and the law should be such that the judge
feels a clear and strong conviction of their incompatibility with
each other."

															More recently, in Sinking Fund Cases, 99 U.
S. 718 , we said:

															"It is our duty, 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, but this declaration should
never be made except in a clear case. Every possible presumption
is Page 109 U. S. 28 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."

															Before considering the language and scope of these amendments,
it will be proper to recall the relations subsisting, prior to
their adoption, between the national government and the institution
of slavery, as indicated by the provisions of the Constitution, the
legislation of Congress, and the decisions of this court. In this
mode, we may obtain keys with which to open the mind of the people
and discover the thought intended to be expressed.

															In section 2 of article IV of the Constitution, it was provided
that

															"no person held to service or labor in one State, under the laws
thereof, escaping into another, shall, in consequence of any law or
regulation therein, be discharged from such service or labor, but
shall be delivered up on claim of the party to whom such service or
labor may be due."

															Under the authority of this clause, Congress passed the Fugitive
Slave Law of 1793, establishing a mode for the recovery of fugitive
slaves and prescribing a penalty against any person who should
knowingly and willingly obstruct or hinder the master, his agent,
or attorney in seizing, arresting, and recovering the fugitive, or
who should rescue the fugitive from him, or who should harbor or
conceal the slave after notice that he was a fugitive.

															In Prigg v. Commonwealth of
Pennsylvania , 16 Pet. 539, this court had occasion
to define the powers and duties of Congress in reference to
fugitives from labor. Speaking by MR. JUSTICE STORY, it laid down
these propositions:

															That a clause of the Constitution conferring a right should not
be so construed as to make it shadowy or unsubstantial, or leave
the citizen without a remedial power adequate for its protection
when another construction equally accordant with the words and the
sense in which they were used would enforce and protect the right
granted;

															That Congress is not restricted to legislation for the
execution Page 109 U. S. 29 of its expressly granted powers, but, for the protection of
rights guaranteed by the Constitution, may employ such means, not
prohibited, as are necessary and proper, or such as are
appropriate, to attain the ends proposed;

															That the Constitution recognized the master's right of property
in his fugitive slave, and, as incidental thereto, the right of
seizing and recovering him, regardless of any State law or
regulation or local custom whatsoever; and,

															That the right of the master to have his slave, thus escaping,
delivered up on claim, being guaranteed by the Constitution, the
fair implication was that the national government was clothed with
appropriate authority and functions to enforce it.

															The court said

															"The fundamental principle, applicable to all cases of this
sort, would seem to be that, when the end is required the means are
given, and when the duty is enjoined, the ability to perform it is
contemplated to exist on the part of the functionary to whom it is
entrusted."

															Again,

															"It would be a strange anomaly and forced construction to
suppose that the national government meant to rely for the due
fulfillment of its own proper duties, and the rights which it
intended to secure, upon State legislation, and not upon that of
the Union. A fortiori, it would be more objectionable to
suppose that a power which was to be the same throughout the Union
should be confided to State sovereignty, which could not rightfully
act beyond its own territorial limits "

															The act of 1793 was, upon these grounds, adjudged to be a
constitutional exercise of the powers of Congress.

															It is to be observed from the report of Priggs' case that
Pennsylvania, by her attorney general, pressed the argument that
the obligation to surrender fugitive slaves was on the States and
for the States, subject to the restriction that they should not
pass laws or establish regulations liberating such fugitives; that
the Constitution did not take from the States the right to
determine the status of all persons within their respective
jurisdictions; that it was for the State in which the alleged
fugitive was found to determine, through her courts or in such
modes as she prescribed, whether the person arrested was, in fact,
a freeman or a fugitive slave; that the sole power Page 109 U. S. 30 of the general government in the premises was, by judicial
instrumentality, to restrain and correct, not to forbid and prevent
in the absence of hostile State action, and that, for the general
government to assume primary authority to legislate on the subject
of fugitive slaves, to the exclusion of the States, would be a
dangerous encroachment on State sovereignty. But to such
suggestions, this court turned a deaf ear, and adjudged that
primary legislation by Congress to enforce the master's right was
authorized by the Constitution.

															We next come to the Fugitive Slave Act of 1850, the
constitutionality of which rested, as did that of 1793, solely upon
the implied power of Congress to enforce the master's rights. The
provisions of that act were far in advance of previous legislation.
They placed at the disposal of the master seeking to recover his
fugitive slave substantially the whole power of the nation. It
invested commissioners, appointed under the act, with power to
summon the posse comitatus for the enforcement of its
provisions, and commanded all good citizens to assist in its prompt
and efficient execution whenever their services were required as
part of the posse comitatus. Without going into the
details of that act, it is sufficient to say that Congress omitted
from it nothing which the utmost ingenuity could suggest as
essential to the successful enforcement of the master's claim to
recover his fugitive slave. And this court, in Ableman v.
Booth , 21 How. 506, adjudged it to be "in all of
its provisions, fully authorized by the Constitution of the United
States."

															The only other case, prior to the adoption of the recent
amendments, to which reference will be made, is that of Dred Scott v.
Sanford , 19 How. 399. That case was instituted in a
circuit court of the United States by Dred Scott, claiming to be a
citizen of Missouri, the defendant being a citizen of another
State. Its object was to assert the title of himself and family to
freedom. The defendant pleaded in abatement that Scott -- being of
African descent, whose ancestors, of pure African blood, were
brought into this country and sold as slaves -- was not a citizen.
The only matter in issue, said the court, was whether the
descendants of slaves thus imported Page 109 U. S. 31 and sold, when they should be emancipated, or who were born of
parents who had become free before their birth, are citizens of a
State in the sense in which the word "citizen" is used in the
Constitution of the United States.

															In determining that question, the court instituted an inquiry as
to who were citizens of the several States at the adoption of the
Constitution and who at that time were recognized as the people
whose rights and liberties had been violated by the British
government. The result was a declaration by this court, speaking by
Chief Justice Taney, that the legislation and histories of the
times, and the language used in the Declaration of Independence,
showed

															"that neither the class of persons who had been imported as
slaves nor their descendants, whether they had become free or not,
were then acknowledged as a part of the people, nor intended to be
included in the general words used in that instrument;"

															that

															"they had for more than a century before been regarded as beings
of an inferior race, and altogether unfit to associate with the
white race either in social or political relations, and so far
inferior that they had no rights which the white man was bound to
respect, and that the negro might justly and lawfully be reduced to
slavery for his benefit;"

															that he was "bought and sold, and treated as an ordinary article
of merchandise and traffic, whenever a profit could be made by it;"
and, that

															"this opinion was at that time fixed and universal in the
civilized portion of the white race. It was regarded as an axiom in
morals, as well as in politics, which no one thought of disputing,
or supposed to be open to dispute, and men in every grade and
position in society daily and habitually acted upon it in their
private pursuits, as well as in matters of public concern, without
for a moment doubting the correctness of this opinion."

															The judgment of the court was that the words "people of the
United States" and "citizens" meant the same thing, both
describing

															"the political body who, according to our republican
institutions, form the sovereignty and hold the power and conduct
the government through their representatives;"

															that

															"they are what we familiarly call the 'sovereign people,'
and Page 109 U. S. 32 every citizen is one of this people and a constituent member of
this sovereignty;"

															but that the class of persons described in the plea in abatement
did not compose a portion of this people, were not "included, and
were not intended to be included, under the word citizens' in
the Constitution;" that, therefore, they could "claim none of the
rights and privileges which that instrument provides for and
secures to citizens of the United States;" that, "on the contrary, they were at that time considered as a
subordinate and inferior class of beings who had been subjugated by
the dominant race and, whether emancipated or not, yet remained
subject to their authority, and had no rights or privileges but
such as those who held the power and the government might choose to
grant them."

															Such were the relations which formerly existed between the
government, whether national or state, and the descendants, whether
free or in bondage, of those of African blood who had been imported
into this country and sold as slaves.

															The first section of the Thirteenth Amendment provides that

															"neither slavery nor involuntary servitude, except as a
punishment for crime, whereof the party shall have been duly
convicted, shall exist within the United States, or any place
subject to their jurisdiction."

															Its second section declares that "Congress shall have power to
enforce this article by appropriate legislation." This amendment
was followed by the Civil Rights Act of April 9, 1866, which, among
other things, provided that

															"all persons born in the United States, and not subject to any
foreign power, excluding Indians not taxed, are hereby declared to
be citizens of the United States."

															14 Stat. 27. The power of Congress, in this mode, to elevate the
enfranchised race to national citizenship was maintained by the
supporters of the act of 1866 to be as full and complete as its
power, by general statute, to make the children, being of full age,
of persons naturalized in this country, citizens of the United
States without going through the process of naturalization. The act
of 1866 in this respect was also likened to that of 1843, in which
Congress declared

															"that the Stockbridge tribe of Indians, and each and every one
of them, shall be deemed to be and are hereby declared to be,
citizens of the United States to Page 109 U. S. 33 all intents and purposes, and shall be entitled to all the
rights, privileges, and immunities of such citizens, and shall in
all respects be subject to the laws of the United States."

															If the act of 1866 was valid in conferring national citizenship
upon all embraced by its terms, then the colored race, enfranchised
by the Thirteenth Amendment, became citizens of the United States
prior to the adoption of the Fourteenth Amendment. But, in the view
which I take of the present case, it is not necessary to examine
this question.

															The terms of the Thirteenth Amendment are absolute and
universal. They embrace every race which then was, or might
thereafter be, within the United States. No race, as such, can be
excluded from the benefits or rights thereby conferred. Yet it is
historically true that that amendment was suggested by the
condition, in this country, of that race which had been declared by
this court to have had -- according to the opinion entertained by
the most civilized portion of the white race at the time of the
adoption of the Constitution -- "no rights which the white man was
bound to respect," none of the privileges or immunities secured by
that instrument to citizens of the United States. It had reference,
in peculiar sense, to a people which (although the larger part of
them were in slavery) had been invited by an act of Congress to aid
in saving from overthrow a government which, theretofore, by all of
its departments, had treated them as an inferior race, with no
legal rights or privileges except such as the white race might
choose to grant them.

															These are the circumstances under which the Thirteenth Amendment
was proposed for adoption. They are now recalled only that we may
better understand what was in the minds of the people when that
amendment was considered, and what were the mischiefs to be
remedied and the grievances to be redressed by its adoption.

															We have seen that the power of Congress, by legislation, to
enforce the master's right to have his slave delivered up on claim
was implied from the recognition of that right in the
national Constitution. But the power conferred by the Thirteenth
Amendment does not rest upon implication or Page 109 U. S. 34 inference. Those who framed it were not ignorant of the
discussion, covering many years of our country's history, as to the
constitutional power of Congress to enact the Fugitive Slave Laws
of 1793 and 1850. When, therefore, it was determined, by a change
in the fundamental law, to uproot the institution of slavery
wherever it existed in the land and to establish universal freedom,
there was a fixed purpose to place the authority of Congress in the
premises beyond the possibility of a doubt. Therefore, ex
industria, power to enforce the Thirteenth Amendment by
appropriate legislation was expressly granted. Legislation for that
purpose, my brethren concede, may be direct and primary. But to
what specific ends may it be directed? This court has uniformly
held that the national government has the power, whether expressly
given or not, to secure and protect rights conferred or guaranteed
by the Constitution. United States v. Reese, 92 U. S.
214 ; Strauder v. West Virginia, 100 U.
S. 303 . That doctrine ought not now to be abandoned when
the inquiry is not as to an implied power to protect the master's
rights, but what may Congress, under powers expressly granted, do
for the protection of freedom and the rights necessarily inhering
in a state of freedom.

															The Thirteenth Amendment, it is conceded, did something more
than to prohibit slavery as an institution resting upon
distinctions of race and upheld by positive law. My brethren admit
that it established and decreed universal civil freedom throughout the United States. But did the freedom thus established
involve nothing 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 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? Page 109 U. S. 35 Had the Thirteenth Amendment stopped with the sweeping
declaration in its first section against the existence of slavery
and involuntary servitude except for crime, Congress would have had
the power, by implication, according to the doctrines of Prigg
v. Commonwealth of Pennsylvania, repeated in Strauder v.
West Virginia, to protect the freedom established, and
consequently, to secure the enjoyment of such civil rights as were
fundamental in freedom. That it can exert its authority to that
extent is made clear, and was intended to be made clear, by the
express grant of power contained in the second section of the
Amendment.

															That there are burdens and disabilities which constitute badges
of slavery and servitude, and that the power to enforce by
appropriate legislation the Thirteenth Amendment may be exerted by
legislation of a direct and primary character for the eradication
not simply of the institution, but of its badges and incidents, are
propositions which ought to be deemed indisputable. They lie at the
foundation of the Civil Rights Act of 1866. Whether that act was
authorized by the Thirteenth Amendment alone, without the support
which it subsequently received from the Fourteenth Amendment, after
the adoption of which it was reenacted with some additions, my
brethren do not consider it necessary to inquire. But I submit,
with all respect to them, that its constitutionality is
conclusively shown by their opinion. They admit, as I have said,
that the Thirteenth Amendment established freedom; that there are
burdens and disabilities, the necessary incidents of slavery, which
constitute its substance and visible form; that Congress, by the
act of 1866, passed in view of the Thirteenth Amendment, before the
Fourteenth was adopted, undertook to remove certain burdens and
disabilities, the necessary incidents of slavery, and to secure to
all citizens of every race and color, and without regard to
previous servitude, those fundamental rights which are the essence
of civil freedom, namely, the same right to make and enforce
contracts, to sue, be parties, give evidence, and to inherit,
purchase, lease, sell, and convey property as is enjoyed by white
citizens; that, under the Thirteenth Amendment, Congress has to do
with slavery and Page 109 U. S. 36 its incidents, and that legislation, so far as necessary or
proper to eradicate all forms and incidents of slaver and
involuntary servitude, may be direct and primary, operating upon
the acts of individuals, whether sanctioned by State legislation or
not. These propositions being conceded, it is impossible, as it
seems to me, to question the constitutional validity of the Civil
Rights Act of 1866. I do not contend that the Thirteenth Amendment
invests Congress with authority, by legislation, to define and
regulate the entire body of the civil rights which citizens enjoy,
or may enjoy, in the several States. But I hold that, since
slavery, as the court has repeatedly declared, Slaughterhouse
Cases , 16 Wall. 36; Strauder West
Virginia, 100 U. S. 303 , was
the moving or principal cause of the adoption of that amendment,
and since that institution rested wholly upon the inferiority, as a
race, of those held in bondage, their freedom necessarily involved
immunity from, and protection against, all discrimination against
them, because of their race, in respect of such civil rights as
belong to freemen of other races. Congress, therefore, under its
express power to enforce that amendment by appropriate legislation,
may enact laws to protect that people against the deprivation, because of their race, of any civil rights granted to
other freemen in the same State, and such legislation may be of a
direct and primary character, operating upon States, their officers
and agents, and also upon at least such individuals and
corporations as exercise public functions and wield power and
authority under the State.

															To test the correctness of this position, let us suppose that,
prior to the adoption of the Fourteenth Amendment, a State had
passed a statute denying to freemen of African descent, resident
within its limits, the same right which was accorded to white
persons of making and enforcing contracts and of inheriting,
purchasing, leasing, selling and conveying property; or a statute
subjecting colored people to severer punishment for particular
offences than was prescribed for white persons, or excluding that
race from the benefit of the laws exempting homesteads from
execution. Recall the legislation of 1865-1866 in some of the
States, of which this court in the Slaughterhouse Page 109 U. S. 37 Cases said that it imposed upon the colored race
onerous disabilities and burdens; curtailed their rights in the
pursuit of life, liberty and property to such an extent that their
freedom was of little value; forbade them to appear in the towns in
any other character than menial servants; required them to reside
on and cultivate the soil, without the right to purchase or own it;
excluded them from many occupations of gain, and denied them the
privilege of giving testimony in the courts where a white man was a
party. 16 Wall. 83 U. S. 57 . Can
there be any doubt that all such enactments might have been reached
by direct legislation upon the part of Congress under its express
power to enforce the Thirteenth Amendment? Would any court have
hesitated to declare that such legislation imposed badges of
servitude in conflict with the civil freedom ordained by that
amendment? That it would have been also in conflict with the
Fourteenth Amendment because inconsistent with the fundamental
rights of American citizenship does not prove that it would have
been consistent with the Thirteenth Amendment.

															What has been said is sufficient to show that the power of
Congress under the Thirteenth Amendment is not necessarily
restricted to legislation against slavery as an institution upheld
by positive law, but may be exerted to the extent, at least, of
protecting the liberated race against discrimination in respect of
legal rights belonging to freemen where such discrimination is
based upon race.

															It remains now to inquire what are the legal rights of colored
persons in respect of the accommodations, privileges and facilities
of public conveyances, inns, and places of public amusement? First, as to public conveyances on land and water. In New Jersey Steam Navigation
Co. v. Merchants' Bank , 6 How. 344, this court,
speaking by Mr. Justice Nelson, said that a common carrier is

															"in the exercise of a sort of public office, and has public
duties to perform, from which he should not be permitted to
exonerate himself without the assent of the parties concerned."

															To the same effect is Munn v. Illinois, 94 U. S.
113 . In Olcott v.
Supervisor , 16 Wall. 678, it was ruled that Page 109 U. S. 38 railroads are public highways, established by authority of the
State for the public use; that they are nonetheless public highways
because controlled and owned by private corporations; that it is a
part of the function of government to make and maintain highways
for the convenience of the public; that no matter who is the agent,
or what is the agency, the function performed is that of the
State; that, although the owners may be private companies,
they may be compelled to permit the public to use these works in
the manner in which they can be used; that, upon these grounds
alone have the courts sustained the investiture of railroad
corporations with the State's right of eminent domain, or the right
of municipal corporations, under legislative authority, to assess,
levy and collect taxes to aid in the construction of railroads. So
in Township of Queensbury v.
Culver , 19 Wall. 83, it was said that a municipal
subscription of railroad stock was in aid of the construction and
maintenance of a public highway, and for the promotion of a public
use. Again, in Township of Pine Grove v.
Talcott , 19 Wall. 666: "Though the corporation
[railroad] was private, its work was public, as much so as if it
were to be constructed by the State." To the like effect are
numerous adjudications in this and the State courts with which the
profession is familiar. The Supreme Judicial Court of
Massachusetts, in Inhabitants of Worcester v. The Western R.R.
Corporation, 4 Met. 564, said in reference to a railroad:

															"The establishment of that great thoroughfare is regarded as a
public work, established by public authority, intended for the
public use and benefit, the use of which is secured to the whole
community, and constitutes, therefore, like a canal, turnpike, or
highway, a public easement. . . . It is true that the real and
personal property, necessary to the establishment and management of
the railroad is vested in the corporation, but it is in trust for
the public."

															In Erie, Etc., R.R. Co. v. Casey, 26 Penn. St. 287, the
court, referring to an act repealing the charter of a railroad, and
under which the State took possession of the road, said:

															"It is a public highway, solemnly devoted to public use. When
the lands were taken, it was for such use, or they could not have
been taken at all. . . . Railroads established Page 109 U. S. 39 upon land taken by the right of eminent domain by authority of
the commonwealth, created by her laws as thoroughfares for
commerce, are her highways. No corporation has property in them,
though it may have franchises annexed to and exercisable within
them."

															In many courts it has been held that, because of the public
interest in such a corporation, the land of a railroad company
cannot be levied on and sold under execution by a creditor. The sum
of the adjudged cases is that a railroad corporation is a
governmental agency, created primarily for public purposes and
subject to be controlled for the public benefit. Upon this ground,
the State, when unfettered by contract, may regulate, in its
discretion, the rates of fares of passengers and freight. And upon
this ground, too, the State may regulate the entire management of
railroads in all matters affecting the convenience and safety of
the public, as, for example, by regulating speed, compelling stops
of prescribed length at stations, and prohibiting discriminations
and favoritism. If the corporation neglect or refuse to discharge
its duties to the public, it may be coerced to do so by appropriate
proceedings in the name or in behalf of the State.

															Such being the relations these corporations hold to the public,
it would seem that the right of a colored person to use an improved
public highway upon the terms accorded to freemen of other races is
as fundamental, in the state of freedom established in this
country, as are any of the rights which my brethren concede to be
so far fundamental as to be deemed the essence of civil freedom.
"Personal liberty consists," says Blackstone,

															"in the power of locomotion, of changing situation, or removing
one's person to whatever places one's own inclination may direct,
without restraint unless by due course of law."

															But of what value is this right of locomotion if it may be
clogged by such burdens as Congress intended by the act of 1875 to
remove? They are burdens which lay at the very foundation of the
institution of slavery as it once existed. They are not to be
sustained except upon the assumption that there is, in this land of
universal liberty, a class which may still be discriminated
against, even in respect of rights of a character Page 109 U. S. 40 so necessary and supreme that, deprived of their enjoyment in
common with others, a freeman is not only branded as one inferior
and infected, but, in the competitions of life, is robbed of some
of the most essential means of existence, and all this solely
because they belong to a particular race which the nation has
liberated. The Thirteenth Amendment alone obliterated the race line
so far as all rights fundamental in a state of freedom are
concerned. Second, as to inns. The same general observations which
have been made as to railroads are applicable to inns. The word
"inn" has a technical legal signification. It means, in the act of
1875, just what it meant at common law. A mere private boarding
house is not an inn, nor is its keeper subject to the
responsibilities, or entitled to the privileges, of a common
innkeeper.

															"To constitute one an innkeeper within the legal force of that
term, he must keep a house of entertainment or lodging for all
travelers or wayfarers who might choose to accept the same, being
of good character or conduct."

															Redfield on Carriers, etc., § 7. Says Judge Story:

															"An innkeeper may be defined to be the keeper of a common inn
for the lodging and entertainment of travelers and passengers,
their horses and attendants. An innkeeper is bound to take in all
travelers and wayfaring persons, and to entertain them, if he can
accommodate them, for a reasonable compensation, and he must guard
their goods with proper diligence. . . . If an innkeeper improperly
refuses to receive or provide for a guest, he is liable to be
indicted therefor. . . . They (carriers of passengers) are no more
at liberty to refuse a passenger, if they have sufficient room and
accommodations, than an innkeeper is to refuse suitable room and
accommodations to a guest."

															"Story on Bailments §§ 475-476."

															In Rex v. Ivens, 7 Carrington & Payne 213, 32
E.C.L. 49, the court, speaking by Mr. Justice Coleridge, said:

															"An indictment lies against an innkeeper who refuses to receive
a guest, he having at the time room in his house and either the
price of the guest's entertainment being tendered to him or such
circumstances occurring as will dispense with that Page 109 U. S. 41 tender. This law is founded in good sense. The innkeeper is not
to select his guest. He has no right to say to one, you shall come
to my inn, and to another, you shall not, as everyone coming and
conducting himself in a proper manner has a right to be received,
and, for this purpose innkeepers are a sort of public servants,
they having, in return a kind of privilege of entertaining
travelers and supplying them with what they want."

															These authorities are sufficient to show that a keeper of an inn
is in the exercise of a quasi -public employment. The law
gives him special privileges. and he is charged with certain duties
and responsibilities to the public. The public nature of his
employment forbids him from discriminating against any person
asking admission as a guest on account of the race or color of that
person. Third. As to places of public amusement. It may be
argued that the managers of such places have no duties to perform
with which the public are, in any legal sense, concerned, or with
which the public have any right to interfere, and that the
exclusion of a black man from a place of public amusement on
account of his race, or the denial to him on that ground of equal
accommodations at such places, violates no legal right for the
vindication of which he may invoke the aid of the courts. My answer
is that places of public amusement, within the meaning of the act
of 1875, are such as are established and maintained under direct
license of the law. The authority to establish and maintain them
comes from the public. The colored race is a part of that public.
The local government granting the license represents them as well
as all other races within its jurisdiction. A license from the
public to establish a place of public amusement imports in law
equality of right at such places among all the members of that
public. This must be so unless it be -- which I deny -- that the
common municipal government of all the people may, in the exertion
of its powers, conferred for the benefit of all, discriminate or
authorize discrimination against a particular race solely because
of its former condition of servitude.

															I also submit, whether it can be said -- in view of the
doctrines of this court as announced in Munn v.
State of Illinois , Page 109 U. S. 42 94 U. S. 113 , and
reaffirmed in Peik v. Chicago & N.W. Railway Co., 94 U. S. 164 , 169
[argument of counsel -- omitted], that the management of places of
public amusement is a purely private matter, with which government
has no rightful concern? In the Munn case, the question
was whether the State of Illinois could fix, by law, the maximum of
charges for the storage of grain in certain warehouses in that
State -- the private property of individual citizens. After quoting a remark attributed to Lord Chief Justice Hale, to
the effect that, when private property is "affected with a public
interest, it ceases to be juris privati only," the court
says:

															"Property does become clothed with a public interest when used
in a manner to make it of public consequence and affect the
community at large. When, therefore, one devotes his property to a
use in which the public has an interest, he, in effect, grants to
the public an interest in that use, and must submit to be
controlled by the public for the common good to the extent of the
interest he has thus created. He may withdraw his grant by
discontinuing the use, but, so long as he maintains the use, he
must submit to the control."

															The doctrines of Munn v. Illinois have never been
modified by this court, and I am justified upon the authority of
that case in saying that places of public amusement, conducted
under the authority of the law, are clothed with a public interest
because used in a manner to make them of public consequence and to
affect the community at large. The law may therefore regulate, to
some extent, the mode in which they shall be conducted, and,
consequently, the public have rights in respect of such places
which may be vindicated by the law. It is consequently not a matter
purely of private concern.

															Congress has not, in these matters, entered the domain of State
control and supervision. It does not, as I have said, assume to
prescribe the general conditions and limitations under which inns,
public conveyances, and places of public amusement shall be
conducted or managed. It simply declares, in effect, that, since
the nation has established universal freedom in this country for
all time, there shall be no discrimination, based merely upon race
or color, in respect of the accommodations Page 109 U. S. 43 and advantages of public conveyances, inns, and places of public
amusement.

															I am of the opinion that such discrimination practised by
corporations and individuals in the exercise of their public or quasi -public functions is a badge of servitude the
imposition of which Congress may prevent under its power, by
appropriate legislation, to enforce the Thirteenth Amendment; and
consequently, without reference to its enlarged power under the
Fourteenth Amendment, the act of March 1, 1875, is not, in my
judgment, repugnant to the Constitution.

															It remains now to consider these cases with reference to the
power Congress has possessed since the adoption of the Fourteenth
Amendment. Much that has been said as to the power of Congress
under the Thirteenth Amendment is applicable to this branch of the
discussion, and will not be repeated.

															Before the adoption of the recent amendments, it had become, as
we have seen, the established doctrine of this court that negroes,
whose ancestors had been imported and sold as slaves, could not
become citizens of a State, or even of the United States, with the
rights and privileges guaranteed to citizens by the national
Constitution; further, that one might have all the rights and
privileges of a citizen of a State without being a citizen in the
sense in which that word was used in the national Constitution, and
without being entitled to the privileges and immunities of citizens
of the several States. Still further, between the adoption of the
Thirteenth Amendment and the proposal by Congress of the Fourteenth
Amendment, on June 16, 1866, the statute books of several of the
States, as we have seen, had become loaded down with enactments
which, under the guise of Apprentice, Vagrant, and contract
regulations, sought to keep the colored race in a condition,
practically, of servitude. It was openly announced that whatever
might be the rights which persons of that race had as freemen,
under the guarantees of the national Constitution, they could not
become citizens of a State, with the privileges belonging to
citizens, except by the consent of such State; consequently, that
their civil rights as citizens of the State depended entirely upon
State legislation. To meet this new peril to the black race, that
the Page 109 U. S. 44 purposes of the nation might not be doubted or defeated, and by
way of further enlargement of the power of Congress, the Fourteenth
Amendment was proposed for adoption.

															Remembering that this court, in the Slaughterhouse
Cases, declared that the one pervading purpose found in all
the recent amendments, lying at the foundation of each and without
which none of them would have been suggested, was

															"the freedom of the slave race, the security and firm
establishment of that freedom, and the protection of the newly made
freeman and citizen from the oppression of those who had formerly
exercised unlimited dominion over him"

															-- that each amendment was addressed primarily to the grievances
of that race -- let us proceed to consider the language of the
Fourteenth Amendment.

															Its first and fifth sections are in these words:

															"SEC. 1. All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside. No State shall make or
enforce any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State deprive any
person of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal protection
of the laws."

															" * * * *" "SEC. 5. That Congress shall have power to enforce, by
appropriate legislation, the provisions of this article."

															It was adjudged in Strauder v. West Virginia, 100 U. S. 303 , and Ex parte Virginia, 100 U. S. 339 , and
my brethren concede, that positive rights and privileges were
intended to be secured, and are, in fact, secured, by the
Fourteenth Amendment.

															But when, under what circumstances, and to what extent may
Congress, by means of legislation, exert its power to enforce the
provisions of this amendment? The theory of the opinion of the
majority of the court -- the foundation upon which their reasoning
seems to rest -- is that the general government cannot, in advance
of hostile State laws or hostile State Page 109 U. S. 45 proceedings, actively interfere for the protection of my of the
rights, privileges, and immunities secured by the Fourteenth
Amendment. It is said that such rights, privileges, and immunities
are secured by way of prohibition against State laws and
State proceedings affecting such rights and privileges, and by
power given to Congress to legislate for the purpose of carrying such prohibition into effect; also, that congressional
legislation must necessarily be predicated upon such supposed State
laws or State proceedings, and be directed to the correction of
their operation and effect.

															In illustration of its position, the court refers to the clause
of the Constitution forbidding the passage by a State of any law
impairing the obligation of contracts. That clause does not, I
submit, furnish a proper illustration of the scope and effect of
the fifth section of the Fourteenth Amendment. No express power is
given Congress to enforce, by primary direct legislation, the
prohibition upon State laws impairing the obligation of contracts.
Authority is, indeed, conferred to enact all necessary and proper
laws for carrying into execution the enumerated powers of Congress
and all other powers vested by the Constitution in the government
of the United States or in any department or officer thereof. And,
as heretofore shown, there is also, by necessary implication, power
in Congress, by legislation, to protect a right derived from the
national Constitution. But 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. And the only
mode in which the inhibition upon State laws impairing the
obligation of contracts can be enforced is indirectly, through the
courts in suits where the parties raise some question as to the
constitutional validity of such laws. The judicial power of the
United States extends to such suits for the reason that they are
suits arising under the Constitution. The Fourteenth Amendment
presents the first instance in our history of the investiture of
Congress with affirmative power, by legislation, to enforce an express prohibition upon the States. It is not
said that the judicial power of the nation may be exerted
for the enforcement of that amendment. No enlargement of the
judicial power was required, for it is clear Page 109 U. S. 46 that, had the fifth section of the Fourteenth Amendment been
entirely omitted, the judiciary could have stricken down all State
laws and nullified all State proceedings in hostility to rights and
privileges secured or recognized by that amendment. The power given
is, in terms, by congressional legislation, to enforce the
provisions of the amendment.

															The assumption that this amendment consists wholly of
prohibitions upon State laws and State proceedings in hostility to
its provisions is unauthorized by its language. The first clause of
the first section --

															"All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United
States, and of the State wherein they reside"

															-- is of a distinctly affirmative character. In its application
to the colored race, previously liberated, it created and granted
as well citizenship of the United States as citizenship of the
State in which they respectively resided. It introduced all of that
race whose ancestors had been imported and sold as slaves at once
into the political community known as the "People of the United
States." They became instantly citizens of the United States and of
their respective States. Further, they were brought by this supreme
act of the nation within the direct operation of that provision of
the Constitution which declares that "the citizens of each State
shall be entitled to all privileges and immunities of citizens in
the several States." Art. 4, § 2.

															The citizenship thus acquired by that race in virtue of an
affirmative grant from the nation may be protected not alone by the
judicial branch of the government, but by congressional legislation
of a primary direct character, this because the power of Congress
is not restricted to the enforcement of prohibitions upon State
laws or State action. It is, in terms distinct and positive, to
enforce "the provisions of this article " of amendment; not
simply those of a prohibitive character, but the provisions -- all of the provisions -- affirmative and prohibitive, of
the amendment. It is, therefore, a grave misconception to suppose
that the fifth section of the amendment has reference exclusively
to express prohibitions upon State laws or State action. If any
right was created by that amendment, the Page 109 U. S. 47 grant of power through appropriate legislation to enforce its
provisions authorizes Congress, by means of legislation operating
throughout the entire Union, to guard, secure, and protect that
right.

															It is therefore an essential inquiry what, if any, right,
privilege or immunity was given, by the nation to colored persons
when they were made citizens of the State in which they reside? Did
the constitutional grant of State citizenship to that race, of its
own force, invest them with any rights, privileges and immunities
whatever? That they became entitled, upon the adoption of the
Fourteenth Amendment, "to all privileges and immunities of citizens
in the several States," within the meaning of section 2 of article
4 of the Constitution, no one, I suppose, will for a moment
question. What are the privileges and immunities to which, by that
clause of the Constitution, they became entitled? To this it may be
answered generally, upon the authority of the adjudged cases, that
they are those which are fundamental in citizenship in a free
republican government, such as are "common to the citizens in the
latter States under their constitutions and laws by virtue of their
being citizens." Of that provision it has been said, with the
approval of this court, that no other one in the Constitution has
tended so strongly to constitute the citizens of the United States
one people. Ward v.
Maryland , 12 Wall. 418; Corfield v.
Coryell, 4 Wash.C.C. 371; Paul v.
Virginia , 8 Wall. 168; Slaughterhouse
Cases , 16 id. 36.

															Although this court has wisely forborne any attempt by a
comprehensive definition to indicate all of the privileges and
immunities to which the citizen of a State is entitled of right
when within the jurisdiction of other States, I hazard nothing, in
view of former adjudications, in saying that no State can sustain
her denial to colored citizens of other States, while within her
limits, of privileges or immunities fundamental in republican
citizenship upon the ground that she accords such privileges and
immunities only to her white citizens, and withholds them from her
colored citizens. The colored citizens of other States, within the
jurisdiction of that State, could claim, in virtue of section 2 of
article 4 of the Constitution, every privilege and immunity Page 109 U. S. 48 which that State secures to her white citizens. Otherwise it
would be in the power of any State, by discriminating class
legislation against its own citizens of a particular race or color,
to withhold from citizens of other States belonging to that
proscribed race, when within her limits, privileges and immunities
of the character regarded by all courts as fundamental in
citizenship, and that too when the constitutional guaranty is that
the citizens of each State shall be entitled to "all privileges and
immunities of citizens of the several States." No State may, by
discrimination against a portion of its own citizens of a
particular race, in respect of privileges and immunities
fundamental in citizenship, impair the constitutional right of
citizens of other States, of whatever race, to enjoy in that State
all such privileges and immunities as are there accorded to her
most favored citizens. A colored citizen of Ohio or Indiana, while
in the jurisdiction of Tennessee, is entitled to enjoy any
privilege or immunity, fundamental in citizenship, which is given
to citizens of the white race in the latter State. It is not to be
supposed that anyone will controvert this proposition.

															But what was secured to colored citizens of the United States --
as between them and their respective States -- by the national
grant to them of State citizenship? With what rights, privileges,
or immunities did this grant invest them? There is one, if there be
no other -- exemption from race discrimination in respect of any
civil right belonging to citizens of the white race in the same
State. That, surely, is their constitutional privilege when within
the jurisdiction of other States. And such must be their
constitutional right in their own State, unless the recent
amendments be splendid baubles thrown out to delude those who
deserved fair and generous treatment at the hands of the nation.
Citizenship in this country necessarily imports at least equality
of civil rights among citizens of every race in the same State. It
is fundamental in American citizenship that, in respect of such
rights, there shall be no discrimination by the State, or its
officers, or by individuals or corporations exercising public
functions or authority, against any citizen because of his race or
previous condition of servitude. In United States v.
Cruikshank, 92 U. S. 542 , it
was said at page 92 U. S. 555 ,
that the Page 109 U. S. 49 rights of life and personal liberty are natural rights of man,
and that "the equality of the rights of citizens is a principle of
republicanism." And in Ex parte Virginia, 100
U. S. 334 , the emphatic language of this court is
that

															"one great purpose of these amendments was to raise the colored
race from that condition of inferiority and servitude in which most
of them had previously stood into perfect equality of civil rights
with all other persons within the jurisdiction of the States."

															So, in Strauder v. West Virginia, 100 U.S. at 100 U. S. 306 ,
the court, alluding to the Fourteenth Amendment, said:

															"This is one of a series of constitutional provisions having a
common purpose, namely, securing to a race recently emancipated, a
race that, through many generations, had been held in slavery, all
the civil rights that the superior race enjoy."

															Again, in Neal v. Delaware, 103
U. S. 386 , it was ruled that this amendment was designed
primarily

															"to secure to the colored race, thereby invested with the
rights, privileges, and responsibilities of citizenship, the
enjoyment of all the civil rights that, under the law, are enjoyed
by white persons."

															The language of this court with reference to the Fifteenth
Amendment adds to the force of this view. In United States v.
Cruikshank, it was said:

															"In United States v. Reese, 92 U. S.
214 , we held that the Fifteenth Amendment has invested
the citizens of the United States with a new constitutional right,
which is exemption from discrimination in tho exercise of the
elective franchise, on account of race, color, or previous
condition of servitude. From this it appears that the right of
suffrage is not a necessary attribute of national citizenship, but
that exemption from discrimination in the exercise of that right on
account of race, &c., is. The right to vote in the States comes
from the States, but the right of exemption from the prohibited
discrimination comes from the United States. The first has not been
granted or secured by the Constitution of the United States, but
the last has been."

															Here, in language at once clear and forcible, is stated the
principle for which I contend. It can scarcely be claimed that
exemption from race discrimination, in respect of civil rights,
against those to whom State citizenship was granted by the Page 109 U. S. 50 nation, is any less, for the colored race, a new constitutional
right, derived from and secured by the national Constitution, than
is exemption from such discrimination in the exercise of the
elective franchise. It cannot be that the latter is an attribute of
national citizenship, while the other is not essential in national
citizenship or fundamental in State citizenship.

															If, then, exemption from discrimination in respect of civil
rights is a new constitutional right, secured by the grant of State
citizenship to colored citizens of the United States -- and I do
not see how this can now be questioned -- why may not the nation,
by means of its own legislation of a primary direct character,
guard, protect, and enforce that right? It is a right and privilege
which the nation conferred. It did not come from the States in
which those colored citizens reside. It has been the established
doctrine of this court during all its history, accepted as
essential to the national supremacy, that Congress, in the absence
of a positive delegation of power to the State legislatures, may,
by its own legislation, enforce and protect any right derived from
or created by the national Constitution. It was so declared in Prigg v. Commonwealth of Pennsylvania. It was reiterated
in United States v. Reese, 92 U. S.
214 , where the court said that

															"rights and immunities created by and dependent upon the
Constitution of the United States can be protected by Congress. The
form and manner of the protection may be such as Congress, in the
legitimate exercise of its discretion, shall provide. These may be
varied to meet the necessities of the particular right to be
protected."

															It was distinctly reaffirmed in Strauder v. West
Virginia, 100 U.S. at 100 U. S. 310 , where we said that

															"a right or immunity created by the Constitution or only
guaranteed by it, even without any express delegation of power, may
be protected by Congress."

															How then can it be claimed, in view of the declarations of this
court in former cases, that exemption of colored citizens, within
their States, from race discrimination in respect of the civil
rights of citizens is not an immunity created or derived from the
national Constitution?

															This court has always given a broad and liberal construction to
the Constitution, so as to enable Congress, by legislation, to Page 109 U. S. 51 enforce rights secured by that instrument. The legislation which
Congress may enact in execution of its power to enforce the
provisions of this amendment is such as may be appropriate to
protect the right granted. The word appropriate was undoubtedly
used with reference to its meaning, as established by repeated
decisions of this court. Under given circumstances, that which the
court characterizes as corrective legislation might be deemed by
Congress appropriate and entirely sufficient. Under other
circumstances, primary direct legislation may be required. But it
is for Congress, not the judiciary, to say that legislation is
appropriate -- that is, best adapted to the end to be attained. The
judiciary may not, with safety to our institutions, enter the
domain of legislative discretion and dictate the means which
Congress shall employ in the exercise of its granted powers. That
would be sheer usurpation of the functions of a coordinate
department, which, if often repeated, and permanently acquiesced
in, would work a radical change in our system of government. In United States v. Fisher, 2 Cr. 38, the court said that

															"Congress must possess the choice of means, and must be
empowered to use any means which are, in fact, conducive to the
exercise of a power granted by the Constitution. . . . The sound
construction of the Constitution,"

															said Chief Justice Marshall,

															"must allow to the national legislature that discretion, with
respect to the means by which the powers it confers are to be
carried into execution, which will enable that body to perform the
high duties assigned to it in the manner most beneficial to the
people. Let the end be legitimate, let it be within the scope of
the Constitution, and all means which are appropriate, which are
plainly adapted to that end, which are not prohibited, but consist
with the letter and spirit of the Constitution, are
constitutional." McCulloch v.
Maryland , 4 Wheat. 421.

															Must these rules of construction be now abandoned? Are the
powers of the national legislature to be restrained in proportion
as the rights and privileges, derived from the nation, are
valuable? Are constitutional provisions, enacted to secure the
dearest rights of freemen and citizens, to be subjected to that
rule of construction, applicable to private instruments, Page 109 U. S. 52 which requires that the words to be interpreted must be taken
most strongly against those who employ them? Or shall it be
remembered that

															"a constitution of government, founded by the people for
themselves and their posterity and for objects of the most
momentous nature -- for perpetual union, for the establishment of
justice, for the general welfare, and for a perpetuation of the
blessings of liberty -- necessarily requires that every
interpretation of its powers should have a constant reference to
these objects? No interpretation of the words in which those powers
are granted can be a sound one which narrows down their ordinary
import so as to defeat those objects."

															Story Const. § 422.

															The opinion of the court, as I have said, proceeds upon the
ground that the power of Congress to legislate for the protection
of the rights and privileges secured by the Fourteenth Amendment
cannot be brought into activity except with the view, and as it may
become necessary, to correct and annul State laws and State
proceedings in hostility to such rights and privileges. In the
absence of State laws or State action adverse to such rights and
privileges, the nation may not actively interfere for their
protection and security, even against corporations and individuals
exercising public or quasi -public functions. Such I
understand to be the position of my brethren. If the grant to
colored citizens of the United States of citizenship in their
respective States imports exemption from race discrimination in
their States in respect of such civil rights as belong to
citizenship, then to hold that the amendment remits that right to
the States for their protection, primarily, and stays the hands of
the nation until it is assailed by State laws or State proceedings
is to adjudge that the amendment, so far from enlarging the powers
of Congress -- as we have heretofore said it did -- not only
curtails them, but reverses the policy which the general government
has pursued from its very organization. Such an interpretation of
the amendment is a denial to Congress of the power, by appropriate
legislation, to enforce one of its provisions. In view of the
circumstances under which the recent amendments were incorporated
into the Constitution, and especially in view of the peculiar
character of the new Page 109 U. S. 53 rights they created and secured, it ought not to be presumed
that the general government has abdicated its authority, by
national legislation, direct and primary in its character, to guard
and protect privileges and immunities secured by that instrument.
Such an interpretation of the Constitution ought not to be accepted
if it be possible to avoid it. Its acceptance 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. With all
respect for the opinion of others, I insist that the national
legislature may, without transcending the limits of the
Constitution, do for human liberty and the fundamental rights of
American citizenship what it did, with the sanction of this court,
for the protection of slavery and the rights of the masters of
fugitive slaves. If fugitive slave laws, providing modes and
prescribing penalties whereby the master could seize and recover
his fugitive slave, were legitimate exercises of an implied power
to protect and enforce a right recognized by the Constitution, why
shall the hands of Congress be tied so that -- under an express
power, by appropriate legislation, to enforce a constitutional
provision granting citizenship -- it may not, by means of direct
legislation, bring the whole power of this nation to bear upon
States and their officers and upon such individuals and
corporations exercising public functions as assume to abridge,
impair, or deny rights confessedly secured by the supreme law of
the land?

															It does not seem to me 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
privileges and immunities of citizens of the United States
furnishes any sufficient reason for holding or maintaining that the
amendment was intended to deny Congress the power, by general,
primary, and direct legislation, of Page 109 U. S. 54 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 of the amendment 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. This alone is sufficient for holding that Congress is
not restricted to the enactment of laws adapted to counteract and
redress the operation of State legislation, or the action of State
officers, of the character prohibited by the amendment. It was
perfectly well known that the great danger to the equal enjoyment
by citizens of their rights as citizens was to be apprehended not
altogether from unfriendly State legislation, but from the hostile
action of corporations and individuals in the States. And it is to
be presumed that it was intended by that section to clothe Congress
with power and authority to meet that danger. If the rights
intended to be secured by the act of 1875 are such as belong to the
citizen in common or equally with other citizens in the same State,
then it is not to be denied that such legislation is peculiarly
appropriate to the end which Congress is authorized to accomplish, viz., to protect the citizen, in respect of such rights,
against discrimination on account of his race. Recurring to the
specific prohibition in the Fourteenth Amendment upon the making or
enforcing of State laws abridging the privileges of citizens of the
United States, I remark that if, as held in the Slaughterhouse
Cases, the privileges here referred to were those which
belonged to citizenship of the United States, as distinguished from
those belonging to State citizenship, it was impossible for any
State prior to the adoption of that amendment to have enforced laws
of that character. The judiciary could have annulled all such
legislation under the provision that the Constitution shall be the
supreme law of the land, anything in the constitution or laws of
any State to the contrary notwithstanding. The States were Page 109 U. S. 55 already under an implied prohibition not to abridge any
privilege or immunity belonging to citizens of the United States as
such. Consequently, the prohibition upon State laws in hostility to
rights belonging to citizens of the United States was intended --
in view of the introduction into the body of citizens of a race
formerly denied the essential rights of citizenship -- only as an
express limitation on the powers of the States, and was not
intended to diminish in the slightest degree the authority which
the nation has always exercised of protecting, by means of its own
direct legislation, rights created or secured by the Constitution.
Any purpose to diminish the national authority in respect of
privileges derived from the nation is distinctly negatived by the
express grant of power by legislation to enforce every provision of
the amendment, including that which, by the grant of citizenship in
the State, secures exemption from race discrimination in respect of
the civil rights of citizens.

															It is said that any interpretation of the Fourteenth Amendment
different from that adopted by the majority of the court would
imply that Congress had authority to enact a municipal code for all
the States covering every matter affecting the life, liberty, and
property of the citizens of the several States. Not so. Prior to
the adoption of that amendment, the constitutions of the several
States, without perhaps an exception, 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. Those rights
therefore existed before that amendment was proposed or adopted,
and were not created by it. If, by reason of that fact, it be
assumed that protection in these rights of persons still rests
primarily with the States, and that Congress may not interfere
except to enforce, by means of corrective legislation, the
prohibitions upon State laws or State proceedings inconsistent with
those rights, it does not at all follow that privileges which have
been granted by the nation may not be protected by primary
legislation upon the part of Congress. The personal rights and
immunities recognized in the prohibitive clauses of the amendment
were, prior to its adoption, Page 109 U. S. 56 under the protection, primarily, of the States, while rights,
created by or derived from the United States have always been and,
in the nature of things, should always be, primarily under the
protection of the general government. Exemption from race
discrimination in respect of the civil rights which are fundamental
in citizenship in a republican government, is, as we have
seen, a new right, created by the nation, with express power in
Congress, by legislation, to enforce the constitutional provision
from which it is derived. If, in some sense, such race
discrimination is, within the letter of the last clause of the
first section, a denial of that equal protection of the laws which
is secured against State denial to all persons, whether citizens or
not, it cannot be possible that a mere prohibition upon such State
denial, or a prohibition upon State laws abridging the privileges
and immunities of citizens of the United States, takes from the
nation the power which it has uniformly exercised of protecting, by
direct primary legislation, those privileges and immunities which
existed under the Constitution before the adoption of the
Fourteenth Amendment or have been created by that amendment in
behalf of those thereby made citizens of their respective
States.

															This construction does not in any degree intrench upon the just
rights of the States in the control of their domestic affairs. It
simply recognizes the enlarged powers conferred by the recent
amendments upon the general government. In the view which I take of
those amendments, the States possess the same authority which they
have always had to define and regulate the civil rights which their
own people, in virtue of State citizenship, may enjoy within their
respective limits, except that its exercise is now subject to the
expressly granted power of Congress, by legislation, to enforce the
provisions of such amendments -- a power which necessarily carries
with it authority, by national legislation, to protect and secure
the privileges and immunities which are created by or are derived
from those amendments. That exemption of citizens from
discrimination based on race or color, in respect of civil rights,
is one of those privileges or immunities can no longer be deemed an
open question in this court. Page 109 U. S. 57 It was said of the case of Dred Scott v. Sandford that
this court there overruled the action of two generations, virtually
inserted a new clause in the Constitution, changed its character,
and made a new departure in the workings of the federal government.
I may be permitted to say that, if the recent amendments are so
construed that Congress may not, in its own discretion and
independently of the action or nonaction of the States, provide by
legislation of a direct character for the security of rights
created by the national Constitution, if it be adjudged that the
obligation to protect the fundamental privileges and immunities
granted by the Fourteenth Amendment to citizens residing in the
several States rests primarily not on the nation, but on the
States, if it be further adjudged that individuals and corporations
exercising public functions or wielding power under public
authority may, without liability to direct primary legislation on
the part of Congress, make the race of citizens the ground for
denying them that equality of civil rights which the Constitution
ordains as a principle of republican citizenship, then not only the
foundations upon which the national supremacy has always securely
rested will be materially disturbed, but we shall enter upon an era
of constitutional law when the rights of freedom and American
citizenship cannot receive from the nation that efficient
protection which heretofore was unhesitatingly accorded to slavery
and the rights of the master.

															But if it were conceded that the power of Congress could not be
brought into activity until the rights specified in the act of 1875
had been abridged or denied by some State law or State action, I
maintain that the decision of the court is erroneous. There has
been adverse State action within the Fourteenth Amendment as
heretofore interpreted by this court. I allude to Ex parte
Virginia, supra. It appears in that case that one Cole, judge
of a county court, was charged with the duty by the laws of
Virginia of selecting grand and petit jurors. The law of the State
did not authorize or permit him, in making such selections, to
discriminate against colored citizens because of their race. But he
was indicted in the federal court, under the act of 1875, for
making such discriminations. Page 109 U. S. 58 The attorney general of Virginia contended before us that the
State had done its duty, and had not authorized or directed that
county judge to do what he was charged with having done; that the
State had not denied to the colored race the equal protection of
the laws, and that consequently the act of Cole must be deemed his
individual act, in contravention of the will of the State.
Plausible as this argument was, it failed to convince this court,
and after saying that the Fourteenth Amendment had reference to the
political body denominated a State "by whatever instruments or in
whatever modes that action may be taken," and that a State acts by
its legislative, executive, and judicial authorities, and can act
in no other way, we proceeded:

															"The constitutional provision, therefore, must mean that no
agency of the State or of the officers or agents by whom its powers
are exerted shall deny to any person within its jurisdiction the
equal protection of the laws. Whoever, by virtue of public position
under a State government, deprives another of property, life, or
liberty without due process of law, or denies or takes away the
equal protection of the laws, violates the constitutional
inhibition; and, as he acts under the name and for the State, and
is clothed with the State's power, his act is that of the State.
This must be so, or the constitutional prohibition has no meaning.
Then the State has clothed one of its agents with power to annul or
evade it. But the constitutional amendment was ordained for a
purpose. It was to secure equal rights to all persons, and, to
insure to all persons the enjoyment of such rights, power was given
to Congress to enforce its provisions by appropriate legislation.
Such legislation must act upon persons, not upon the abstract thing
denominated a State, but upon the persons who are the agents of the
State in the denial of the rights which were intended to be
secured." Ex parte Virginia, 100 U. S.
346 -347.

															In every material sense applicable to the practical enforcement
of the Fourteenth Amendment, railroad corporations, keepers of
inns, and managers of places of public amusement are agents or
instrumentalities of the State, because they are charged with Page 109 U. S. 59 duties to the public and are amenable, in respect of their
duties and functions, to governmental regulation. It seems to me
that, within the principle settled in Ex parte Virginia, a
denial by these instrumentalities of the State to the citizen,
because of his race, of that equality of civil rights secured to
him by law is a denial by the State within the meaning of the
Fourteenth Amendment. If it be not, then that race is left, in
respect of the civil rights in question, practically at the mercy
of corporations and individuals wielding power under the
States.

															But the court says that Congress did not, in the act of 1866,
assume, under the authority given by the Thirteenth Amendment, to
adjust what may be called the social rights of men and races in the
community. I agree that government has nothing to do with social,
as distinguished from technically legal, rights of individuals. No
government ever has brought, or ever can bring, its people into
social intercourse against their wishes. Whether one person will
permit or maintain social relations with another is a matter with
which government has no concern. I agree that, if one citizen
chooses not to hold social intercourse with another, he is not and
cannot be made amenable to the law for his conduct in that regard,
for even upon grounds of race, no legal right of a citizen is
violated by the refusal of others to maintain merely social
relations with him. What I affirm is that no State, nor the
officers of any State, nor any corporation or individual wielding
power under State authority for the public benefit or the public
convenience, can, consistently either with the freedom established
by the fundamental law or with that equality of civil rights which
now belongs to every citizen, discriminate against freemen or
citizens in those rights because of their race, or because they
once labored under the disabilities of slavery imposed upon them as
a race. The rights which Congress, by the act of 1875, endeavored
to secure and protect are legal, not social, rights. 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 Page 109 U. S. 60 in a public building with others, of whatever race, for the
purpose of hearing the political questions of the day discussed.
Scarcely a day passes without our seeing in this courtroom citizens
of the white and black races sitting side by side, watching the
progress of our business. It would never occur to anyone that the
presence of a colored citizen in a courthouse, or courtroom, was an
invasion of the social rights of white persons who may frequent
such places. And yet such a suggestion would be quite as sound in
law -- I say it with all respect -- as is the suggestion that the
claim of a colored citizen to use, upon the same terms as is
permitted to white citizens, the accommodations of public highways,
or public inns, or places of public amusement, established under
the license of the law, is an invasion of the social rights of the
white race.

															The court, in its opinion, reserves the question whether
Congress, in the exercise of its power to regulate commerce amongst
the several States, might or might not pass a law regulating rights
in public conveyances passing from one State to another. I beg to
suggest that that precise question was substantially presented here
in the only one of these cases relating to railroads -- Robinson and Wife v. Memphis & Charleston Railroad
Company. In that case, it appears that Mrs. Robinson, a
citizen of Mississippi, purchased a railroad ticket entitling her
to be carried from Grand Junction, Tennessee, to Lynchburg,
Virginia. Might not the act of 1875 be maintained in that case as
applicable at least to commerce between the States, notwithstanding
it does not, upon its face, profess to have been passed in
pursuance of the power of Congress to regulate commerce? 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?
We have often enforced municipal bonds in aid of railroad
subscriptions where they failed to recite the statute authorizing
their issue, but recited one which did not sustain their validity.
The inquiry in such cases has been was there, in any statute,
authority for the execution of the bonds? Upon this branch of the
case, it may be remarked that the State of Louisiana, in 1869,
passed a statute Page 109 U. S. 61 giving to passengers, without regard to race or color, equality
of right in the accommodations of railroad and street cars,
steamboats or other watercrafts, stage coaches, omnibuses, or other
vehicles. But in Hall v. De Cuir, 95 U.
S. 487 , that act was pronounced unconstitutional so far
as it related to commerce between the States, this court saying
that, "if the public good requires such legislation, it must come
from Congress, and not from the States." I suggest, that it may
become a pertinent inquiry whether Congress may, in the exertion of
its power to regulate commerce among the States, enforce among
passengers on public conveyances equality of right, without regard
to race, color or previous condition of servitude, if it be true --
which I do not admit -- that such legislation would be an
interference by government with the social rights of the
people.

															My brethren say that, when a man has emerged from slavery, 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,
and 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. It is, I submit,
scarcely just to say that the colored race has been the special
favorite of the laws. The statute of 1875, now adjudged to be
unconstitutional, is for the benefit of citizens of every race and
color. What the nation, through Congress, has sought to accomplish
in reference to that race is what had already been done in every
State of the Union for the white race -- to secure and protect
rights belonging to them as freemen and citizens, nothing more. It
was not deemed enough "to help the feeble up, but to support him
after." The one underlying purpose of congressional legislation has
been to enable the black race to take the rank of mere citizens.
The difficulty has been to compel a recognition of the legal right
of the black race to take the rank of citizens, and to secure the
enjoyment of privileges belonging, under the law, to them as a
component part of the people for whose welfare and happiness
government is ordained. Page 109 U. S. 62 At every step in this direction, the nation has been confronted
with class tyranny, which a contemporary English historian says is,
of all tyrannies, the most intolerable,

															"for it is ubiquitous in its operation and weighs perhaps most
heavily on those whose obscurity or distance would withdraw them
from the notice of a single despot."

															Today it is the colored race which is denied, by corporations
and individuals wielding public authority, rights fundamental in
their freedom and citizenship. At some future time, it may be that
some other race will fall under the ban of race discrimination. If
the constitutional amendments be enforced according to the intent
with which, as I conceive, they were adopted, there cannot be, in
this republic, any class of human beings in practical subjection to
another class with power in the latter to dole out to the former
just such privileges as they may choose to grant. The supreme law
of the land has decreed that no authority shall be exercised in
this country upon the basis of discrimination, in respect of civil
rights, against freemen and citizens because of their race, color,
or previous condition of servitude. To that decree -- for the due
enforcement of which, by appropriate legislation, Congress has been
invested with express power -- everyone must bow, whatever may have
been, or whatever now are, his individual views as to the wisdom or
policy either of the recent changes in the fundamental law or of
the legislation which has been enacted to give them effect.

															For the reasons stated, I feel constrained to withhold my assent
to the opinion of the court.

Summary:
In the Civil Rights Cases of 1883, the U.S. Supreme Court ruled that the Civil Rights Act of 1875, which prohibited discrimination in public accommodations, was unconstitutional as applied to the states. The Court interpreted the Fourteenth Amendment as prohibiting state action that discriminated against individuals but did not authorize Congress to regulate the conduct of private individuals or entities.

The Court's decision effectively limited the reach of federal anti-discrimination laws and left the regulation of private discrimination to the states. This ruling was a significant setback for civil rights and contributed to the continued segregation and discrimination faced by racial minorities in the United States.