soldier with rifle american civil warThe Supreme Court
Wall Of Shame

The so-called "Civil Rights" Cases
(1883) 109 U.S. 3

Five cases were consolidated by the Supreme Court and decided on the basis set forth below.


The Republican Party controlled congress, in 1866, and used that control to pass the Civil Rights Act of 1866. This act assumed to make Africans citizens of the states where they resided and, thus, entitled to vote. In conjunction with other legislation the Party passed, the new Americans held the political power in the South for a time. However, in its 1868 platform, the Party took the position that the white people of the "loyal states" remained free to deny the vote to the new Americans: "The guaranty by Congress of equal suffrage to all loyal men at the south was demanded by every consideration of public safety, of gratitude and of justice and must be maintained; while the question of suffrage in all loyal states belongs to the people of those states." This is tricky language; it implies that the "people of the loyal states" do not include African-Americans. In essense, the Party is saying that while congress, through its actions, has forced the white people at the South to accept African-Americans as voters, the white people at the North remain free to decide for themselves whether to extend the francise to Africans.

Only after Grant was elected president, did the Party push through congress the resolution to amend the constitution to give the Africans, whether they resided, the right to vote in state and federal elections. This amendment, the 15th, was ratified by the states in 1870, but the Southern states were coerced to do so.

Having now established actual freedom and political rights for the Africans, the Republican radicals pushed through congress the Civil Rights Act of 1875. It's purpose was to establish, by law, social equality. In 1883, the Supreme Court ruled key sections of this act to be unconstitutional; i.e., that congress had no constitutional power to enforce equality upon white citizens. From this ruling, reinforced by Plessy v. Furgerson came Federal Government's national policy of segregation; a policy that lasted until the 1960s.


In 1875, the Congress passed legislation entitled, "An Act to protect all citizens in their civil and legal rights." This act added features that were missing from the original Civil Rights Act passed in 1866 and reenacted in 1870. (The 1866 Act furnished redress against State laws, and customs having the force of law.) The added features are the subject of the Court's decision and are found in the first and second sections of the 1875 Act.

"Sec. 1: All persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, facilities, and privileges of inns, public conveyances, theaters, and other places of public amusement. . . ."


"Sec. 2: Any person who shall violate the foregoing section by denying to any citizen, except for reasons by law applicable to citizens of every race, the full enjoyment of the accommodations, facilities etc, shall for every offense forfeit and pay the sum of $500 to the person aggrieved thereby."


In each of the five cases, the defendant had been charged with violating the congressional act and appeals had been taken on the issue.

Does Congress Have Power to Pass Section 1? 


Why Not?

"The power is sought in the first section of the Fourteenth Amendment which reads: `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.'"

Note: The key word here is "State." In each of the cases, the plaintiff was a person of color claming that he or she was denied the use of a railroad carriage, or refused a room at an inn, or denied access to a seat in a theater, by a manager or owner of the railroad, inn, or theater. The defendant did not act as it did, because of any State law but simply because the defendant did not wish to permit the plaintiff using its railroad, inn, or theater.


In the circumstances of these cases, the common law provided the plaintiffs with a remedy for damages.


 "It is State action of a particular character that is prohibited. Individual invasion of individual rights is not the subject matter of the amendment. The last section of the amendment invests Congress with the power to enforce the prohibition by appropriate legislation. This is the legislative power conferred upon Congress, and this is the whole of it. The amendment does not invest Congress with power to legislate upon subjects which are within the domain of State legislation; 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.

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 Congress power to provide laws for the general enforcement of contracts. 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. By the judiciary Act of 1789, Congress gave the Supreme Court jurisdiction by writ of error to review the final decisions of State courts whenever they should sustain the validity of a State statute alleged to be repugnant to the Constitution or laws of the United States."

Note: So, for example, if the State passed a law prohibiting an African-American from seating in a certain place within a theater, or on a train, or being entertained at an inn, and the State high court validated the law, Congress might pass a law that provided the injured person with standing to seek review of the State court decision in the United States Supreme Court. But, if the injury was caused, not by a State law, but by the private act of the person owning or managing the theater, train, or inn, Congress had not power under the Constitution to intervene—the injured person under such circumstance was left to what remedies the common law provided generally.


"An inspection of the Act shows that it makes no reference to any supposed violation of the Amendment on the part of the States. It proceeds directly to declare that certain acts committed by individuals shall be deemed offenses, and shall be prosecuted and punished by proceedings in the federal courts."

"If this Act is appropriate. . . , it is difficult to see where it is to stop. Why may not Congress with an equal show of authority enact a code of laws for the enforcement of all rights of life, liberty, and property? The truth is, that the implication of a power to legislate in this manner is based upon the assumption that if the States are forbidden to legislate in a particular way on a particular subject. . . , this gives Congress power to legislate generally upon that subject. 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."

Note: So the situation is that one amendment conflicts with another amendment?


"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, and the wrong may be vindicated by resort to the laws of the State for redress."

What About The Thirteenth Amendment?

"The Thirteenth Amendment may be regarded as nullifying all States laws which establish or uphold slavery. It has a reflex character also, establishing and decreeing universal civil and political freedom throughout the United States, and it clothes Congress with the power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States."

"Upon this assumption it is claimed (by the lone dissenter) 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, (the denial) a subjection to a species of servitude within the meaning of the amendment."

"Conceding the major proposition to be true, that Congress has the power to enact laws for the obliteration of slavery with all its badges and incidents, is the minor proposition also true, that the denial to a person of admission to the accommodations of an inn, public conveyance, or a theater, does subject that person to any form of servitude, or tend to fasten upon him any badge of slavery?"

Note: So now the decision point of the case is clear: The owner of an public accommodation, or conveyance, or place of amusement refuses entry to an African-American: does the act of denial tend to fasten upon that person any "badge of slavery?"If so, then Congress has the power to enact a law which prohibits the denial.


The Supreme Court of 1883 Rejects The Notion

That The Act Of Denial Fastens Upon The African

"A badge of Slavery." 

"Servitudes imposed by law or custom which have the force of law, and exacted by one man from another without the latter's consent, are repugnant to the Fourteenth, no less than to the Thirteenth Amendment. Congress has the power under these amendments to forbid such servitude from being exacted. But is there any similarity between such servitudes and a denial by an owner of an inn, of its accommodation to an individual, even though the denial be founded on the race or color of that individual?"

"It may be that by the Black Code, in the times when slavery prevailed, the owner of inns were forbidden to receive persons of the African race, but this was not because of the African's race, but merely because the African might be escaping." (Huh?)

"The only question, therefore, is, whether the refusal to grant accommodations, by an individual, without any support from State law, inflicts upon the person denied accommodation any manner of servitude, or form of slavery?"

"Can the act of denial impose any badge of slavery 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?"

"When a person has emerged from slavery. . . 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."

Note: In essence, the Court based its decision on its subjective social attitude that mere discrimination on account of race is not to be regarded as a badge of slavery.


And the Court had a point: The owner of the inn claims the right to refuse accommodation to any one he does not like; in this case, he does not like Africans because they are Africans, not because they were slaves or descended from slaves. The owner plainly has a prejudice against Africans based on nothing more than the fact they are Africans. Where is the connection between the owner's prejudice and the fact that once Africans were slaves? The conundrum illustrates what really lay at the bottom of what caused the Civil War: not slavery per se, but racism.


"We are of the opinion that no support for the congressional act can be found in either the Fourteenth or Thirteenth Amendments."

Note:By the time of this decision about ten years had passed, from the time in which the South was administered by the Federal Government as conquered provinces.


Justice Harlan Dissents

"The [Majority's] opinion 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 to the Constitution have been sacrificed by a subtle and ingenious verbal criticism. . . . Constitutional provisions, adopted in the interest of liberty, and for the purpose of securing, through national legislation, 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 when they changed their fundamental law. I think the Court has departed from that 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 was to prevent race discrimination in respect to the accommodations of inns, public conveyances, and places of amusement.  The majority say Congress is without power to do this."

"My brethren admit that the Thirteenth Amendment 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 that 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?

That there are burdens and disabilities which constitute badges of slavery, and that the power to enforce the Thirteenth Amendment may be exerted by legislation of a direct and primary character, for eradication, not simply of the institution, but of its badges, are propositions which ought to be deemed indisputable."

"I hold that since slavery was the moving 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."

Note: Harlan's conclusion is based on a syllogism: (1) Slavery was the reason why the Nation adopted the 13th Amendment; (2) Slavery rested squarely upon the inferiority of the Africans as a race. Therefore, stamping them with the badge of freedom provides them with absolute immunity from all discrimination practiced against them, because of their race.


Accepting as true the two propositions, does it logically follow that, now being free, they must be deemed in the eyes of the law to be absolutely immune from the refusal of  proprietors of  public places to accommodate them, on account of their race? The concept makes a certain sense, doesn't it? The proprietor might refuse the white man accommodation because of many reasons, but rarely, if ever, would the reason be, his race.


The majority, with Harlan again dissenting, will eventually resolve the difference between him and them by giving the black man the right to be accommodated, but giving the white man exclusive control of how to accommodate him.


"My brethren say, that when a man has emerged from slavery, there must be some stage in the process 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 by the ordinary modes by which other men's rights are protected.  [But] the Act 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 the African race, is what has already been done in every State for the white race—to secure and protect rights belonging to them as freemen and citizens, nothing more. 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 mere 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."

"At every step, in this direction, the nation has been confronted with class tyranny. 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 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 to civil rights, against freemen and citizens because of their race. To that decree 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."

Note: Of course, neither the Fourteenth, nor the Thirteenth Amendments, say exactly what Harlan wishes the majority to read into them. The Thirteenth expressly prohibited "involuntary slavery" in the nation; the Fourteenth expressly decreed that "no state shall enforce any law" that may deny accommodation to a citizen of the Untied States whatever his race. Harlan's argument is that the Amendments should be deemed to say what he wishes them to say.


In 1883, the Supreme Court majority was plainly in too much haste to leave the African citizen with the ordinary remedies his white counterpart enjoyed; but, now, in 2013, the same can hardly be said.


Joe Ryan