The Journal of Negro History, Volume 6, 1921

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Title: The Journal of Negro History, Volume 6, 1921

Author: Various

Release Date: July 26, 2007 [EBook #22149]

Language: English

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The Journal

of

Negro History

Volume VI

1921

Contents

Vol VI—January, 1921—No. 1

Vol VI—April, 1921—No. 2

Vol VI—July, 1921—No. 3

Vol VI—October, 1921—No. 4

The Journal

of

Negro History

Vol. VI—January, 1921—No. 1

FIFTY YEARS OF NEGRO CITIZENSHIP AS QUALIFIED BY THE UNITED STATES SUPREME COURT

The Historic Background

The citizenship of the Negro in this country is a fiction. The Constitution of the United States guarantees to him every right vouchsafed to any individual by the most liberal democracy on the face of the earth, but despite the unusual powers of the Federal Government this agent of the body politic has studiously evaded the duty of safeguarding the rights of the Negro. The Constitution confers upon Congress the power to declare war and make peace, to lay and collect taxes, duties, imposts, and excises; to coin money, to regulate commerce, and the like; and further empowers Congress to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof. After the unsuccessful effort of Virginia and Kentucky, through their famous resolutions of 1798 drawn up by Jefferson and Madison to interpose State authority in preventing Congress from exercising its powers, the United States Government with Chief Justice John Marshall as the expounder of that document, soon brought the country around to the position of thinking that, although the Federal Government is one of enumerated powers, that government and not that of States is the judge of the extent of its powers and, though limited in its powers, is supreme within its sphere of action.[1] Marshall showed, too, that there is no phrase in the instrument which, like the Articles of Confederation, excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described.[2] Marshall insisted, moreover, that the powers given to the government imply the ordinary means of execution, and to imply the means necessary to an end is generally understood as implying any means, calculated to produce the end and not as being confined to those single means without which the end would be entirely unattainable.[3] He said: 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 the spirit of the Constitution, are constitutional.

Fortified thus, the Constitution became the rock upon which nationalism was built and by 1833 there were few persons who questioned the supremacy of the Federal Government, as did South Carolina with its threats of nullification. Because of the beginning of the intense slavery agitation not long thereafter, however, and the division of the Democratic party into a national and a proslavery group, the latter advocating State's rights to secure the perpetuation of slavery, there followed a reaction after the death of John Marshall in 1835, when the court abandoned to some extent the advanced position of nationalism of this great jurist and drifted toward the localism long since advocated by Judge Roane of Virginia.

In making the national government the patron of slavery, a new sort of nationalism as a defence of that institution developed thereafter, however, and culminated in the Dred Scott decision.[4] To justify the high-handed methods to protect the master's property right in the bondman, these jurists not only referred to the doctrines of Marshall already set forth above but relied also upon the decisions of Justice Storey, the nationalist surviving Chief Justice Marshall. They believed with Storey 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 have a constant reference to those objects. No interpretation of the words in which those powers are granted can be a sound one which narrows down every ordinary import so as to defeat those objects.

In the decision of Prigg v. Pennsylvania, when the effort was to carry out the fugitive slave law,[5] the court, speaking through Justice Storey in 1842, believed that the clause of the Constitution conferring a right should not be so construed as to make it shadowy or unsubstantial or leave the citizen without the 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. The court believed that Congress is not restricted to legislation for the execution 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. The court held, moreover, in Prigg v. Pennsylvania, that 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 functionaries to whom it is entrusted. It required very little argument to expose the fallacy in supposing that the national government had ever meant to rely for the due fulfillment of its duties and the rights which it established, upon State legislation rather than upon that of the United States, and with greater reason, when one bears in mind that the execution of power which was to be the same throughout the nation could not be confided to any State which could not rightfully act beyond its own territorial limits. All of this power exercised in executing the Fugitive Slave Law of 1793 was implied, rather than such direct power as that later conferred upon Congress by the Thirteenth Amendment, which provided that Congress should have power to pass appropriate legislation to enforce it.

As the Supreme Court decided in the case of Prigg v. Pennsylvania that the officers of the State were not legally obligated to assist in the enforcement of the Fugitive Slave Law of 1793, Congress passed another and a more drastic measure in 1850 which, although unusually rigid in its terms, was enthusiastically supported by the Supreme Court in upholding the slavery regime. The Fugitive Slave Law of 1850 deprived the Negro suspect of the right of a trial by jury to determine the question of his freedom in a competent court of the State. The affidavit of the person claiming the Negro was sufficient evidence of ownership. This law made it the duty of marshals and of the United States courts to obey and execute all warrants and precepts issued under the provisions of this act. It imposed a penalty of a fine and imprisonment upon any person knowingly hindering the arrest of a fugitive or attempting to rescue one from custody or harboring one or aiding one to escape. The writ of habeas corpus was denied to the reclaimed Negro and the act was ex post facto. In short, the Fugitive Slave Law of 1850 committed the whole country to the task of the protection of slave property and made slavery a national matter with which every citizen in the country had to be concerned. In the interest of the property right of the master, moreover, the Supreme Court by the Dred Scott Decision[6] upheld this measure, feeling that there was in Congress adequate power expressly given and implied to enforce this regulation in spite of any local opposition that there might develop against the government acting upon individuals to carry out this police regulation. The Negro was not a citizen and in his non-political status could not sue in a Federal court, which for the same reason must disclaim jurisdiction in a case in which the Negro was a party.

In the decision of Ableman v. Booth[6a] the court in construing the provision for the return of slaves according to the Fugitive Slave Law of 1850 further recognized the master's right of property in his bondman, the right of assisting and recovering him regardless of any State law or regulation or local custom to the contrary whatsoever. This tribunal then believed that the right of the master to have his fugitive slave delivered up on the claim, being guaranteed by the Constitution, the implication was that the national government was clothed with proper authority and functions to enforce it. These were reversed during the Civil War by the nation rising in arms against the institution of slavery which it had economically outgrown and the court in the support of the Federal Government exercising its unusual powers in effecting the political and social upheaval resulting in the emancipation of the slaves, again became decidedly national in its decisions.

Out of Rebellion the Negro emerged a free man endowed by the State and Federal Government with all the privileges and immunities of a citizen in accordance with the will of the majority of the American people, as expressed in the Civil Rights Bill and in the ratification of the Thirteenth, Fourteenth and Fifteenth Amendments. A decidedly militant minority, however, willing to grant the Negro freedom of body but unwilling to grant him political or civil rights, bore it grievously that the race had been so suddenly elevated and soon thereafter organized a party of reaction to reduce the freedmen to the position of the free people of color, who before the Civil War had no rights but that of exemption from involuntary servitude. During the Reconstruction period when the Negroes figured conspicuously in the rebuilding of the Southern States they temporarily enjoyed the rights guaranteed them by the Constitution. As there set in a reaction against the support of the reconstructed governments as administered by corrupt southerners and interlopers, the support which the United States Government had given this first effort in America toward actual democracy was withdrawn and the undoing of the Negro as a citizen was easily effected throughout the South by general intimidation and organized mobs known as the Ku-Klux Klan.

One of the first rights denied the Negro by these successful reactionaries was the unrestricted use of common carriers. Standing upon its former record, however, the court had sufficient precedents to continue as the impartial interpreter of the laws guaranteeing all persons civil and political equality. In New Jersey Steam Navigation Company v. Merchants Bank[7] the court speaking through Justice Nelson took high ground in the defence of the free and unrestricted use of common carriers, a right frequently denied the Negroes after the Civil War. The court 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 assent of the parties concerned. This doctrine was upheld in Munn v. Illinois[8] and in Olcott v. Supervisors[9] when it was decided that railroads are public highways established under the authority of the State for the public use; and that they are none the less 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 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; Upon these grounds alone, continues the opinion, have courts sustained the investiture of railroad corporations with the States 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.[10] Jurists in this country and in England had also held that inasmuch as the innkeeper is engaged in 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 would then forbid him from discriminating against any person asking admission, on account of the race or color of that person.[11]

In the Slaughter House Cases[12] and Strauder v. West Virginia[13] the United States Supreme Court held that since slavery was the moving or principal cause of the adoption of the Thirteenth 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 present express power to enforce that amendment by appropriate legislation, might enact laws to protect that people against deprivation, because of their race, of any civil rights granted to other freemen in the same States; 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.

The State was conceded the power to regulate rates, fares of passengers and freight, and upon these grounds it might regulate the entire management of railroads in matters affecting the convenience and safety of the public, such as regulating speed, compelling stops of prescribed length at stations and prohibiting discriminations and favoritisms. The position taken here is that these corporations are actual agents of the State and what the State permits them to do is an act of the State. The Thirteenth and Fourteenth Amendments made the Negro race a part of the public and entitled to share in the control and use of public utilities. Any restriction in the use of these utilities would deprive the race of its liberty; for personal liberty consists, says Blackstone, in the power of locomotion of changing situation, of removing one's person to whatever places one's own inclination may direct, without restraint, unless by due course of law.

In several decisions the court had held that the purpose of the Thirteenth and Fourteenth Amendments was to raise the Negro 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 United States. In Strauder v. West Virginia,[14] and Neal v. Delaware,[15] the court had taken the position that exemption from race discrimination is a right of a citizen of the United States. Negroes charged that members of their race had been excluded from a jury because of their color. The court was then of the opinion that such action contravened the Constitution and, as was held in the case of Prigg v. Pennsylvania, declared it essential to the national supremacy that the agent of the body politic should have the power to enforce and protect any right granted by the Constitution.

In Ex Parte Virginia the position was the same. In this case one Cole, a county judge, was charged by the laws of Virginia with the duty of selecting grand and petit jurors. The laws of that State did not permit him in the performance of that duty to make any distinction as to race. He was indicted in a Federal court under the act of 1875, for making such discriminations. The attorney-general of Virginia contended 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 Negro 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 the court; and after emphasizing the fact that the Fourteenth Amendment had reference to the acts of 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, it said:

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 inhibitions; and, as he acts under the name and for the State, and is clothed with the State 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 as State but upon the persons who are the agents of the State, in the denial of the rights which were intended to be secured.[16]

The Supreme Court of the United States soon fell under reactionary influence and gave its judicial sanction to all repression necessary to establish permanently the reactionaries in the South and to deprive the Negroes of their political and civil rights. It will be interesting, therefore, to show exactly how far the United States Supreme Court, supposed to be an impartial tribunal and generally held in such high esteem and treated with such reverential fear, has been guilty of inconsistency and sophistry in its effort to support this autocracy in defiance of the well established principles of interpretation for construing the constitutions and laws of States and in utter disregard of the supremacy of Congress in the exercise of the powers granted the government by the Constitution of the United States.

The Right of Locomotion

In 1875 Congress passed a measure commonly known as the Civil Rights Bill, which was supplementary of other measures of the same sort, the first being enacted April 9, 1866.[17] and reenacted with some modifications in sections 16, 17, and 18 of the Enforcement Act passed August 31, 1870.[18] The intention of the statesmen advocating these measures was to secure to the freedmen the enjoyment of every right guaranteed all other citizens. The important sections of the Civil Rights Bill of 1875 follow:

Section 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.

Section 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 offense 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 offense be deemed guilty of a misdemeanor, and, upon conviction therefor, 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 penalties 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.

Although the Negroes by this measure were guaranteed the rights which were granted by the Constitution to every citizen of the United States, the members of the Supreme Court of the United States instead of upholding the laws of the nation in accordance with their oaths undertook to hedge around and to explain away the articles of the Constitution in such a way as to legislate rather than interpret the laws according to the intent of the framers of the Constitution. Subjected to all sorts of discriminations at the polls, in the courts, in inns, in hotels, on street cars, and on railroads, Negroes had sued for redress of their grievances and the persons thus called upon to respond in the courts attacked the constitutionality of the Civil Rights Bill, and the War Amendments, contending that they encroached upon the police power of the States.

The first of these Civil Rights Cases were: United States v. Stanley, United States v. Ryan, United States v. Nichols, United States v. Singleton, and Robinson and wife v. Memphis and Charleston R. R. Co. Two of these cases, those against Stanley and Nichols, were indictments for denying to persons of color the accommodations of an inn or hotel; two of them, those against Ryan and Singleton, were, one on information, the other on indictments, for denying to individuals the privileges and accommodations of a theatre. The information against Ryan was for refusing a colored person a seat in the dress circle of McGuire'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 accommodation of the theatre known as the Grand Opera House in New York.

The argument to show the culpability of the State was that in becoming a business man or a corporation established by sanction of and protected by the State, such a person or persons discriminating against a citizen of color no longer acted in a private but in a public capacity and in so doing affected an interest in violation of the State by controlling, as in the case of slavery, an individual's power of locomotion. The Civil Rights Bill was appropriate legislation as defined by the Constitution to forbid any action by private persons which in the light of our history may reasonably be apprehended to tend, on account of its being incidental to quasi public occupations, to create an institution. The act of 1875 in prohibiting persons from violating the rights of other persons to the full and equal enjoyment of the accommodations of inns and public conveyances, for any reason turning merely upon the race or color of the latter, partook of the specific character of certain contemporaneous, solemn and effective action by the United States to which it was a sequel and is constitutional.

Giving the opinion of the court in Civil Rights Cases,[19] Mr. Justice Bradley said that the Fourteenth Amendment on which this act of 1875 rested for its authority, if it had any authority at all, does not invest Congress to legislate within the domain of State legislation or in State action of the kind referred to in the Civil Rights Act. He believed that the Fourteenth Amendment does not authorize Congress to create a code of municipal law for the regulation of private rights. He conceded that positive rights and privileges are secured by the Fourteenth Amendment but only by prohibition against State laws and State proceedings affecting those rights.[20] Until some State law has passed, he said, 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 under State authority. Otherwise Congress would take the place of State legislatures and supersede them and regulate all private rights between man and man. Civil rights such as are guaranteed by the Constitution against State aggression, thought Justice Bradley, cannot be impaired by the wrongful acts of individuals unsupported by State authority in the shape of laws, customs, or executive proceedings, for those are private wrongs.

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

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

In declaring this act unconstitutional the Supreme Court of the United States violated one of its own important principles of interpretation to the effect that this duty is such a delicate one, that the court in declaring a statute of Congress invalid must do so with caution, reluctance and hesitation and never until the duty becomes manifestly imperative. In the decision of Fletcher v. Peck,[21] the court said that whether the legislative department of the government has transcended the limits of its constitutional power is at all times a question of much delicacy, which seldom, if ever, is to be decided in the affirmative, in a doubtful case. The position between the Constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other. In the Sinking Fund Cases[22] the court said: When required in the regular course of judicial proceedings to declare an act of Congress void if not within the legislative power of the United States, this declaration should never be made except in a clear case. Every possible presumption is in favor of the validity of a statute, and this continues until the contrary is shown beyond a rational doubt. One branch of the government cannot encroach on the domain of another without danger. The safety of our institutions depends in no small degree on a strict observance of this salutary rule. And this is exactly what happened. The judiciary here assumed the function of the legislative department. Not even a casual reader on examining these laws and the Constitution can feel that the court in this case felt such a clear and strong conviction as to the invalidity of this constitutional legislation when that tribunal, as its records show, had under different circumstances before the Civil War held a doctrine decidedly to the contrary.

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

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

The court held that legislation for the enforcement of the Thirteenth Amendment is direct and primary but to what specific ends may it be directed? inquired Justice Harlan. The court had uniformly held that national government has the power, whether expressly given or not, to secure and protect rights conferred or guaranteed by the Constitution.[23] Justice Harlan believed then that the doctrines should not be abandoned when the inquiry was not as to an implied power to protect the master's rights, but what Congress might, under powers expressly granted, do for the protection of freedom and the rights necessarily inhering in a state of freedom.

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

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

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

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

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

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

What did the Negro become when he was freed? What was he when, according to section 2 of Article IV of the Constitution, he became by virtue of the Fourteenth Amendment entitled to all privileges and immunities of citizens in the several States?[24] From what did the race become free? If Justice Bradley had been inconveniently segregated by common carriers, driven out of inns and hotels with the sanction of local law, and deprived by a mob of the opportunity to make a living, would he have considered himself a free citizen of this or any other country? A colored citizen of Ohio or Indiana while in the jurisdiction of Tennessee, contended Justice Harlan, is entitled to enjoy any privilege or immunity, fundamental in citizenship, which is given to citizens of the white race in the latter State. Citizenship in this country necessarily imports at least equality of civil rights among citizens of every race in the same State. In United States v. Cruikshank[25] it was held that rights of life and personal liberty are natural rights of man, and that equality of the rights of citizens is a principle of republicanism.

Inconsistency of the Court

In the case of Hall v. DeCuir[26] the court reached an important decision when an Act of Louisiana passed in 1869 to give passengers without regard to race or color equality of right in the accommodations of railroad or street cars, steamboats or other water crafts, stage coaches, omnibusses or other vehicles, was declared unconstitutional so far as it related to commerce between States.[27] Here a person of color had been discriminated against by a Mississippi River navigation company which was called to answer before a United States court for violating this act.

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

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

In view of the subsequent decisions in separate car cases, moreover, the following portion of Justice Waite's opinion as to a clause in the law involved in the case of Hall v. DeCuir is unusually interesting. It does not act, said he, upon the business through the local instruments to be employed after coming within the State, from without or goes out from within. While it purports only to control the carrier when engaged within the State it must necessarily influence his conduct to some extent in the management of his business throughout his entire voyage. We confine our decision to the statute in its effect upon foreign and interstate commerce, expressing no opinion as to its validity in any other respect.[28]

With the rapid expansion of commerce in the United States and the consequent necessity for regulation both by the State and the United States, no power of Congress was more frequently questioned than that to regulate commerce and no litigant concerned in such constitutional questions easily escaped the consequences of the varying interpretation given this clause by the United States Supreme Court. The court, of course, accepted as a general principle that there are three spheres for the regulation of commerce, namely: that which a State cannot invade, that which the State may invade, when Congress has not interfered, and that which is reserved to the State in conformity with its police power. But as late as 1886 the nationalistic school found some encouragement in the decision of the Wabash, St. Louis and Pacific Railway Company v. Illinois[29] given by Justice Miller. He said: "Notwithstanding what is there said, that is, in the decisions of Munn v. Illinois; C. B. and Q. R. R. Company v. Iowa, and Peik v. Chicago and N. W. R. R. Co.,[30] this court held and asserted that it had never consciously held otherwise, that a statute of a State intended to regulate or to tax, or to impose any other restriction upon the transmission of persons or property or telegraphic messages, from one State to another, is not within the class of legislation which the States may enact in the absence of legislation by Congress; and that such statutes are void even as to the part of such transmission which may be within the State." Chief Justice Waite, and Justice Bradley and Justice Gray, however, dissented for various reasons.

In the Louisville Railway Company v. Mississippi,[31] however, in 1899, the court, evidently yielding to southern public opinion, reversed itself by the decision that an interstate carrier could not run a train through Mississippi without attaching thereto a separate car for Negroes and had the audacity to argue that this is not an interference with interstate commerce.[32] To show how inconsistent this interpretation was one should bear in mind that in Hall v. DeCuir the court had held that this was exactly what a State could not do in that the statute acted not upon business through local instruments to be employed after coming into the State, but directly upon business as it comes into the State from without or goes out from within, although it purported only to control the carrier when engaged within the State. It necessarily influenced the conduct of the carrier to some extent in the management of his business throughout his entire voyage. No carrier of passengers, said the court in Hall v. DeCuir, can conduct his business with satisfaction to himself, or comfort to those employing him, if on one side of a State line his passengers, both white and colored, must be permitted to occupy the same cabin, and on the other to be kept separate. Uniformity in the regulation by which he is to be governed from one end to the other of his route is a necessity in his business, and to secure it, Congress, which is untrammelled by State lines, has been invested with exclusive legislative power of determining what such regulation should be.

Giving the opinion in the Mississippi case, however, Justice Brewer said: It has been often held by this court that there is a commerce wholly within the State which is not subject to the constitutional provision and the distinctions between commerce among the States and the other class of commerce between citizens of a single State and conducted within its limits exclusively is one which has been fully recognized in this court, although it may not be always easy, where the lines of these classes approach each other, to distinguish between the one and the other.[33] He might have added some other comment to the effect that this court will not definitely draw the line of distinction between such classes of commerce since it desires to leave adequate room for evasion, because it had been unusually easy to find such a line in cases in which the rights of Negroes were concerned and such definite interpretation might interfere with the rights of white men. Justices Harlan and Bradley dissented on the grounds that the law imposed a burden upon an interstate carrier in that he would be fined if he did not attach an additional car for race discrimination, and that the opinion was repugnant to the principles set forth in that of Hall v. DeCuir.

The United States Supreme Court finally reached the position of following the decision of Ex Parte Plessy which justified the discrimination in railway cars on the grounds that it is not a badge of slavery contrary to the Thirteenth Amendment. This decision, in short, is: So long, at least, as the facilities or accommodations provided are substantially equal, statutes providing separate cars for the races do not abridge any privilege or immunity of citizens or otherwise contravene the Fourteenth Amendment of the United States Constitution. In such matters equality and not identity or community of accommodations is the extreme test of conformity to the requirements of the amendment. The regulation of domestic commerce is as exclusively a State function as the regulation of interstate commerce is a Federal function. The separate car law is an exercise of police power in the interest of public order, peace and comfort. It is a matter of legislative power and discretion with which Federal courts cannot interfere.

In Hennington v. Georgia,[34] it was later emphasized that it had been held that legislative enactments of the States, passed under the admitted police powers, and having a real relation to the domestic peace, order, health, and safety of their people, but which by their necessary operation, affect, to some extent, or for a limited time, the conduct of commerce among the States, are yet not invalid by force alone of the grant of power of Congress to regulate such commerce; and, if not obnoxious to some other constitutional provision or destructive of some right secured by the fundamental law, are to be respected in the courts of the Union until they are superseded and displaced by some act of Congress passed in execution of power granted to it by the Constitution. Of course, there was no other provision to which such laws could be contrary after the Supreme Court had whittled away the war amendments.

In the case of Plessy v. Ferguson[35] the most inexcusable inconsistency of the court was shown when the persons of color aggrieved attacked the separate car law of Louisiana on the ground that it conflicted with the Fourteenth Amendment. Giving the opinion of the court, Justice Brown said: So far, then, as a conflict with the Fourteenth Amendment is concerned, the case reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and with respect to this there must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness it is at liberty to act with reference to the established usages, customs and traditions of the people, and with a view to the promotion of the public peace and good order. Gauged by this standard, we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable, or more obnoxious to the Fourteenth Amendment than the acts of Congress requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned or the corresponding acts of State legislatures.

Justice Harlan dissented, saying that he was of the opinion that the Statute of Louisiana is inconsistent with personal liberty of white and black in that State and hostile to both in the letter and spirit of the Constitution of the United States. Justice Harlan rightly contended that laws can have no regard to race according to the Constitution. If they do,