Amendment XIV (1868)
Section 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.
Bradley Letter Number One:
Associate Justice Bradley writes Circuit Judge William B. WoodsWashington Jany 3d 1871
Hon Wm B. WoodsDear Sir: Your letter of Dec 24 1870 was duly recd. I answer it as soon as I can get the opportunity. You say that "a peaceable Republican meeting held in Eutaw, Green Co Ala. for political discussion was broken up and dispersed by a number of men who, armed with revolvers, fired into the crowd, killing two and wounding over fifty; and you ask whether such conduct constitutes an offence against the 6th sect. of the Enforcement Act, passed May 31st 1870? -- Whether the breaking up of a peaceable political meeting by violence, is a preventing or hindering the free exercise or enjoyment of a right granted or secured by the Constitution or laws of U.S.?
The right of the people to assemble together and discuss political questions, not derogatory to the or treasonable to the U.States, is one of the most sacred rights of citizenship, and cannot be abridged by any state. But the state of Alabama has not, in the case referred to, attempted to abridge this right. A confederacy of individuals has attempted interfered with it; and the question is whether such an interference is a violation of the Constitution or the laws of the U.S. The Constitution, or laws of the U.S. does not contain any provisions, to my knowledge, securing to the people the right to assemble together for political discussion or any other purpose; they only contain a prohibition against a state from interfering with such a right, included as one of the privileges and immunities belonging to all citizens.
By the 1st Amendment to the Constitution it is declared that Congress shall make no law abridging the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
By the 14th Amendment, No State shall make or enforce any law which shall abridge the privileges or immunities of Citizens of the U.S.
Neither Congress, nor the state, has made any law by virtue of which this outrage was committed.
But suppose the state authorities are inactive, and will do nothing to punish the crime? What can the U.S. Courts? Suppose the State Legislature even refuses to pass any law to punish it --; what can the U.S. courts, or even Congress do? The prevention of crime <in ordinary cases,> -- such as murder, robbery, riot & c. is not the function of Congress, but of the state government. Congress can only interfere when some offense is offered to the sovereignty or jurisdiction of the United States.
But is not the case referred to one in which an offense has been offered to the sovereignty and jurisdiction of the United States?
--not the mere firing into a political meeting: that is only a private, municipal offence.
--But the firing into a political meeting for the purpose of preventing any persons from exercising the right of suffrage, to whom it is secured by the 15th Amendment.
The act done, was <evidently> an attempt by force, threats and violence to prevent citizens of a certain class form voting -- under the 4th section of the Enforcement Act.
It was also evidently an attempt to prevent persons from exercising the right of suffrage, to whom it was guaranteed under the 15th Amendment -- under the 5th section of said act.
And if there was a "banding" or "confederating" together, it was a conspiracy to under the 6th section.
Viewed simply as a riot, it was an offence against the municipal law only; but viewed as a riot <instead> to intimidate persons and prevent them from exercising the right of suffrage, guaranteed to them by the 15th Amendment to the Constitution, it was a violation of that
The 15th Amendment to the Constitution of the United States declares, that the right of citizens of the United States to vote shall not be denied or abridged by the U.S. or by any state, on account of race, color or previous condition of servitude; and that Congress shall have power to enforce this article by appropriate legislation.
In pursuance of this power Congress passed the act of May 31st 1870, entitled “An Act to enforce the right of citizens of the U.S. to vote in the Several states of the Union, and for other Purposes.”
By this Act Congress declared that all citizens of U.S., otherwise qualified, shall be entitled and allowed to vote at all elections, without distinction of race, color or previous condition of servitude; (Sect. 1) and to perform any preliminary acts required to that end [such as registering, or otherwise] without molestation; (sect. 2) and if not allowed to perform such preliminary <acts>; nevertheless their votes shall be received, on affidavit made, showing the fact; (sect 3) and that any attempt by force, threats or bribery to hinder or prevent any citizen from or any combination or conspiracy to hinder and <or> prevent any citizen from doing such preliminary acts, or from voting, shall be an offense, liable to a penalty of $500 in favor of the party aggrieved; and to fine and imprisonment; (sect 4) and that any attempt to hinder or prevent any person from exercising the right of suffrage to whom it is secured by the 15th Amendment, by threats of loss of depriving him of employment, or <of depriving him> of his house or lands leased, or by threats of personal violence, shall be a misdemeanor, punishable by fine and imprisonment; (sect. 5.) and that if any two or more conspire to violate any provision of this act, or to intimidate any citizen with intent to prevent or hinder his free exercise of any privilege granted or secured by the or laws of the U.S. they shall be guilty of felony, and liable to fine and imprisonment; (Sect. 6.) and that the distinct commission of any other crime, whilst in the act of violating the 5th & 6th sections, shall involve the punishment due to such other crime by the States laws; (sect. 7.) and that the District Court of the U.S. shall have, exclusive of the State Courts, cognizance of all crimes & offences committed against the provisions of the act, &c &c.
Shortly prior to the late annual election in Alabama, a public meeting was held at Eutaw, Green Co. i n that state to discuss political questions preparatory to the said elections; -- which meeting was largely composed of colored persons, who of African descent, and formerly slaves. Several white persons, to the number of fifty or more conspired together to at nearly the close of the meeting some fired pistol shots very rapidly into the meeting and killed and wounded a large number, and causing those who were in attendance to fly for their lives. It is alleged that this act savage and dastardly act was the result of a conspiracy to intimidate the persons attending the meeting from voting at the coming election, If sufficient evidence of this intent <should be> is produced, these acts were a violation and it seems to me that it was a violation of the foregoing act, and punishable as felony under the 6th section thereof.
Source: Box 3, Bradley Papers, NJ Historical Society.
Bradley Letter Number Two:
Washington, March 12, 1871
My dear Judge.
I am sorry I could not have answered your letter of 7th ulto sooner. But my duties here have been so arduous that it has been [impossible to write ]. I will now attempt to do so.
The 6th section of the act, known as the Enforcement Act, makes it felony for two or more persons to conspire together, or to go in disguise, with intent to prevent a citizen of the U.S. from registering or voting, or to injure or intimidate him to prevent the free exercise and enjoyment of any right or privilege seemed to him by the Constitution or laws of the U.S.
You ask whether the breaking up of a peaceable political meeting, by riot and murder, when committee simply for that purpose, without any definite intent to prevent the exercise of the right of suffrage, is a felony under this section, -- in view of the Ist Amendment of the Constitution – which says that “Congress shall make no law abridging the right of the people peaceably to assemble an to petition the government for a redress of grievances.
Supposing the Ist Amendment to embrace the right peaceably to assemble for the purpose of discussing political questions, (which I think it does) the case is within the words of the statute. The right is a right secured by the Constitution. True, it is secured only as against the action of Congress itself. But, still it is a right that is secured. But where Congress is prohibited from inhibits Congress from passing any law respecting an established himself of religion or prohibiting the free exercise thereof. Does this give to Congress the power to protect by law the people of a state in the free exercising of religion? Is not that subject left to the discretion of the States of the people? Until the passage of the XIVth amendment this was undoubtedly
Does the XIVth Amendment, in giving Congress power to enforce its provisions by appropriate legislation, make any attention in this respect?
By that Amendment, Sect 1, “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the U. States; nor shall any state deprive of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the law.”
Now, the privileges an immunities of citizens of the United States here referred to, an undoubtedly those which may be demonstrated fundamental (see 4 Wash. C.C.Rep.380); and among these I suppose we are safe including those which in the Constitution are expressly reserved to the people, either as against the action of the Federal Government or the state governments.
If this be so, then, undoubtedly Congress has a right, by appropriate legislation, to enforce and protect such fundamental rights, against unfriendly or insufficient state legislation. I say unfriendly or insufficient; for the XIVth amendment not only prohibits the making or enforcing of laws which shall abridge the privileges of the citizens; but prohibits the state from denying to all persons within its jurisdiction the equal protection of the laws. Denying includes inaction as well as action. And denying the equal protection of the laws includes the omission to protect as well as the omission to pass laws for protection. Our controversy with England at the moment is not only that her neutrality laws were not sufficient but that she did not properly enforce those which she had. It is a poor consolation for me to be told, ‘Our laws are sufficient to protect you,’ if those laws are not enforced, and my rights are s[ ] permitted to be invaded. Therefore to guard against this invasion of the citizen’s fundamental rights, and to ensure their adequate protection, as well against state legislation as state inaction or incompetency, the amendment gives Congress power to enforce the amendment by appropriate legislation. [sentence deleted] And as it would be unseemly for Congress to interfere directly with state enactments, and as it cannot compel the action of state officials, the only appropriate legislation it can make, is that which will operate directly on offenders an offences and protect the rights which the amendment secures. The extent to which Congress shall exercise this power must depend on its discretion in view of the customary standing of each case. If its exercise of it in any case should seem to interfere with domestic affairs of a state, it must be remembered that it is for the purpose of protecting federal rights: and these must be protected whether it interferes with domestic laws or domestic administration of laws.
In my judgment, therefore, the case you suppose is within the law, and the law is within the legislative power of Congress.
Very truly,
Joseph P. Bradley
PS I expect when our court adjourns, about the 1st of May, to visit Savannah and Mobile in succession an spend, say a week or ten days in each place; perhaps longer. If you will make arrangements to have any causes of special importance laid over till I can appear, I will cheerfully hear them. I would a little prefer not to be bothered with jury cases unless you deem it important. I shall probably visit Savannah first. I doubt whether I can get as far as New Orleans. Should you specially wish me to hear any case there I might perhaps go there for a short time.
Yours—
Joseph P. Bradley
Source: Box 18, Bradley Papers, NJ Historical Society
The Slaughterhouse Cases (1873)
Mr. Justice MILLER, now, April 14th, 1873, delivered the opinion of the court.
…Twelve articles of amendment were added to the Federal Constitution soon after the original organization of the government under it in 1789…. The most cursory glance at these articles discloses a unity of purpose, when taken in connection with the history of the times, which cannot fail to have an important bearing on any question of doubt concerning their true meaning…. The institution of African slavery, as it existed in about half the States of the Union, and the contests pervading the public mind for many years, between those who desired its curtailment and ultimate extinction and those who desired additional safeguards for its security and perpetuation, culminated in the effort, on the part of most of the States in which slavery existed, to separate from the Federal government, and to resist its authority. This constituted the war of the rebellion, and whatever auxiliary causes may have contributed to bring about this war, undoubtedly the overshadowing and efficient cause was African slavery.
In that struggle slavery, as a legalized social relation, perished. It perished as a necessity of the bitterness and force of the conflict. When the armies of freedom found themselves upon the soil of slavery they could do nothing less than free the poor victims whose enforced servitude was the foundation of the quarrel. And when hard pressed in the contest these men (for they proved themselves men in that terrible crisis) offered their services and were accepted by thousands to aid in suppressing the unlawful rebellion, slavery was at an end wherever the Federal government succeeded in that purpose….
We do not say that no one else but the negro can share in this protection….
It would be the vainest show of learning to attempt to prove by citations of authority, that up to the adoption of the recent amendments, no claim or pretence was set up that those rights depended on the Federal government for their existence or protection, beyond the very few express limitations which the Federal Constitution imposed upon the States—such, for instance, as the prohibition against ex post facto laws, bills of attainder, and laws impairing the obligation of contracts. But with the exception of these and a few other restrictions, the entire domain of the privileges and immunities of citizens of the States, as above defined, lay within the constitutional and legislative power of the States, and without that of the Federal government. Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? And where it is declared that Congress shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States?
All this and more must follow, if the proposition of the plaintiffs in error be sound. For not only are these rights subject to the control of Congress whenever in its discretion any of them are supposed to be abridged by State legislation, but that body may also pass laws in advance, limiting and restricting the exercise of legislative power by the States, in their most ordinary and usual functions, as in its judgment it may think proper on all such subjects. And still further, such a construction followed by the reversal of the judgments of the Supreme Court of Louisiana in these cases, would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment. The argument we admit is not always the most conclusive which is drawn from the consequences urged against the adoption of a particular construction of an instrument. But when, as in the case before us, these consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions; when the effect is to fetter and degrade the State governments by subjecting them to the control of Congress, in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; when in fact it radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people; the argument has a force that is irresistible, in the absence of language which expresses such a purpose too clearly to admit of doubt.
We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.
Having shown that the privileges and immunities relied on in the argument are those which belong to citizens of the States as such, and that they are left to the State governments for security and protection, and not by this article placed under the special care of the Federal government, we may hold ourselves excused from defining the privileges and immunities of citizens of the United States which no State can abridge, until some case involving those privileges may make it necessary to do so.
But lest it should be said that no such privileges and immunities are to be found if those we have been considering are excluded, we venture to suggest some which owe their existence to the Federal government, its National character, its Constitution, or its laws.
…It is said to be the right of the citizen of this great country, protected by implied guarantees of its Constitution, “to come to the seat of government to assert any claim he may have upon that government, to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions. He has the right of free access to its seaports, through which all operations of foreign commerce are conducted, to the subtreasuries, land offices, and courts of justice in the several States.” And quoting from the language of Chief Justice Taney in another case, it is said “that for all the great purposes for which the Federal government was established, we are one people, with one common country, we are all citizens of the United States;” and it is, as such citizens, that their rights are supported in this court in Crandall v. Nevada.
Another privilege of a citizen of the United States is to demand the care and protection of the Federal government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government. Of this there can be no doubt, nor that the right depends upon his character as a citizen of the United States. The right to peaceably assemble and petition for redress of grievances, the privilege of the writ of habeas corpus, are rights of the citizen guaranteed by the Federal Constitution. The right to use the navigable waters of the United States, however they may penetrate the territory of the several States, all rights secured to our citizens by treaties with foreign nations, are dependent upon citizenship of the United States, and not citizenship of a State. One of these privileges is conferred by the very article under consideration. It is that a citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bona fide residence therein, with the same rights as other citizens of that State. To these may be added the rights secured by the thirteenth and fifteenth articles of amendment, and by the other clause of the fourteenth, next to be considered….
Affirmed.
Mr. Justice BRADLEY, dissenting.
The fourteenth amendment to the Constitution of the United States, section 1, declares that no State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States.
The legislature of Louisiana, under pretence of making a police regulation for the promotion of the public health, passed an act conferring upon a corporation, created by the act, the exclusive right, for twenty-five years, to have and maintain slaughter-houses, landings for cattle, and yards for confining cattle intended for slaughter, within the parishes of Orleans, Jefferson, and St. Bernard, a territory containing nearly twelve hundred square miles, including the city of New Orleans; and prohibiting all other persons from building, keeping, or having slaughter-houses, landings for cattle, and yards for confining cattle intended for slaughter within the said limits; and requiring that all cattle and other animals to be slaughtered for food in that district should be brought to the slaughter-houses and works of the favored company to be slaughtered, and a payment of a fee to the company for such act.
It is contended that this prohibition abridges the privileges and immunities of citizens of the United States, especially of the plaintiffs in error, who were particularly affected thereby; and whether it does so or not is the simple question in this case. And the solution of this question depends upon the solution of two other questions, to wit:
…Is it one of the rights and privileges of a citizen of the United States to pursue such civil employment as he may choose to adopt, subject to such reasonable regulations as may be prescribed by law?…
[This question] is one of vast importance, and lies at the very foundations of our government. The question is now settled by the fourteenth amendment itself, that citizenship of the United States is the primary citizenship in this country; and that State citizenship is secondary and derivative, depending upon citizenship of the United States and the citizen's place of residence. The States have not now, if they ever had, any power to restrict their citizenship to any classes or persons. A citizen of the United States has a perfect constitutional right to go to and reside in any State he chooses, and to claim citizenship therein, and an equality of rights with every other citizen; and the whole power of the nation is pledged to sustain him in that right. He is not bound to cringe to any superior, or to pray for any act of grace, as a means of enjoying all the rights and privileges enjoyed by other citizens. And when the spirit of lawlessness, mob violence, and sectional hate can be so completely repressed as to give full practical effect to this right, we shall be a happier nation, and a more prosperous one than we now are. Citizenship of the United States ought to be, and according to the Constitution, is, a sure and undoubted title to equal rights in any and every State in this Union, subject to such regulations as the legislature may rightfully prescribe. If a man be denied full equality before the law, he is denied one of the essential rights of citizenship as a citizen of the United States.
Every citizen, then, being primarily a citizen of the United States, and, secondarily, a citizen of the State where he resides, what, in general, are the privileges and immunities of a citizen of the United States? Is the right, liberty, or privilege of choosing any lawful employment one of them?
If a State legislature should pass a law prohibiting the inhabitants of a particular township, county, or city, from tanning leather or making shoes, would such a law violate any privileges or immunities of those inhabitants as citizens of the United States, or only their privileges and immunities as citizens of that particular State? Or if a State legislature should pass a law of caste, making all trades and professions, or certain enumerated trades and professions, hereditary, so that no one could follow any such trades or professions except that which was pursued by his father, would such a law violate the privileges and immunities of the people of that State as citizens of the United States, or only as citizens of the State? Would they have no redress but to appeal to the courts of that particular State?
This seems to me to be the essential question before us for consideration. And, in my judgment, the right of any citizen to follow whatever lawful employment he chooses to adopt (submitting himself to all lawful regulations) is one of his most valuable rights, and one which the legislature of a State cannot invade, whether restrained by its own constitution or not.
The right of a State to regulate the conduct of its citizens is undoubtedly a very broad and extensive one, and not to be lightly restricted. But there are certain fundamental rights which this right of regulation cannot infringe. It may prescribe the manner of their exercise, but it cannot subvert the rights themselves. I speak now of the rights of citizens of any free government. Granting for the present that the citizens of one government cannot claim the privileges of citizens in another government; that prior to the union of our North American States the citizens of one State could not claim the privileges of citizens in another State; or, that after the union was formed the citizens of the United States, as such, could not claim the privileges of citizens in any particular State; yet the citizens of each of the States and the citizens of the United States would be entitled to certain privileges and immunities as citizens, at the hands of their own government -- privileges and immunities which their own governments respectively would be bound to respect and maintain. In this free country, the people of which inherited certain traditionary rights and privileges from their ancestors, citizenship means something. It has certain privileges and immunities attached to it which the government, whether restricted by express or implied limitations, cannot take away or impair. It may do so temporarily by force, but it cannot do so by right. And these privileges and immunities attach as well to citizenship of the United States as to citizenship of the States.
The people of this country brought with them to its shores the rights of Englishmen; the rights which had been wrested from English sovereigns at various periods of the nation's history. One of these fundamental rights was expressed in these words, found in Magna Charta: "No freeman shall be taken or imprisoned, or be disseized of his freehold or liberties or free customs, or be outlawed or exiled, or any otherwise destroyed; nor will we pass upon him or condemn him but by lawful judgment of his peers or by the law of the land." English constitutional writers expound this article as rendering life, liberty, and property inviolable, except by due process of law. This is the very right which the plaintiffs in error claim in this case. Another of these rights was that of habeas corpus, or the right of having any invasion of personal liberty judicially examined into, at once, by a competent judicial magistrate. Blackstone classifies these fundamental rights under three heads, as the absolute rights of individuals, to wit: the right of personal security, the right of personal liberty, and the right of private property. And of the last he says: "The third absolute right, inherent in every Englishman, is that of property, which consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution save only by the laws of the land."
The privileges and immunities of Englishmen were established and secured by long usage and by various acts of Parliament. But it may be said that the Parliament of England has unlimited authority, and might repeal the laws which have from time to time been enacted. Theoretically this is so, but practically it is not. England has no written constitution, it is true; but it has an unwritten one, resting in the acknowledged, and frequently declared, privileges of Parliament and the people, to violate which in any material respect would produce a revolution in an hour. A violation of one of the fundamental principles of that constitution in the Colonies, namely, the principle that recognizes the property of the people as their own, and which, therefore, regards all taxes for the support of government as gifts of the people through their representatives, and regards taxation without representation as subversive of free government, was the origin of our own revolution.
This, it is true, was the violation of a political right; but personal rights were deemed equally sacred, and were claimed by the very first Congress of the Colonies, assembled in 1774, as the undoubted inheritance of the people of this country; and the Declaration of Independence, which was the first political act of the American people in their independent sovereign capacity, lays the foundation of our National existence upon this broad proposition: "That all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness." Here again we have the great threefold division of the rights of freemen, asserted as the rights of ma. Rights to life, liberty, and the pursuit of happiness are equivalent to the rights of life, liberty, and property. These are the fundamental rights which can only be taken sway by due process of law, and which can only be interfered with, or the enjoyment of which can only be modified, by lawful regulations necessary or proper for the mutual good of all; and these rights, I contend, belong to the citizens of every free government.
For the preservation, exercise, and enjoyment of these rights the individual citizen, as a necessity, must be left free to adopt such calling, profession, or trade as may seem to him most conducive to that end. Without this right he cannot be a freeman. This right to choose one's calling is an essential part of that liberty which it is the object of government to protect; and a calling, when chosen, is a man's property and right. Liberty and property are not protected where these rights are arbitrarily assailed.
I think sufficient has been said to show that citizenship is not an empty name, but that, in this country at least, it has connected with it certain incidental rights, privileges, and immunities of the greatest importance. And to say that these rights and immunities attach only to State citizenship, and not to citizenship of the United States, appears to me to evince a very narrow and insufficient estimate of constitutional history and the rights of men, not to say the rights of the American people.
On this point the often-quoted language of Mr. Justice Washington, in Corfield v. Coryell, is very instructive. Being called upon to expound that clause in the fourth article of the Constitution, which declares that "the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States," he says: "The inquiry is, what are the privileges and immunities of citizens in the several States? We fell no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments, and which have at all times been enjoyed by the citizens of the several States which compose this Union for the time of their becoming free, independent, and sovereign. What these fundamental privileges are it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the government may justly prescribe for the general good of the whole; the right of a citizen of one State to pass through, or to reside in, any other State for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the State; to take, hold, and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the State, may be mentioned as some of the particular privileges and immunities of citizens which are clearly embraced by the general description of privileges deemed to be fundamental."
It is pertinent to observe that both the clause of the Constitution referred to, and Justice Washington in his comment on it, speak of the privileges and immunities of citizens In a State; not of citizens of a State. It is the privileges and immunities of citizens, that is, of citizens as such, that are to be accorded to citizens of other States when they are found in any State; or, as Justice Washington says, "privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments."
It is true the courts have usually regarded the clause referred to as securing only an equality of privileges with the citizens of the State in which the parties are found. Equality before the law is undoubtedly one of the privileges and immunities of every citizen. I am not aware that any case has arisen in which it became necessary to vindicate any other fundamental privilege of citizenship; although rights have been claimed which were not deemed fundamental, and have been rejected as not within the protection of this clause. Be this, however, as it may, the language of the clause is as I have stated it, and seems fairly susceptible of a broader interpretation than that which makes it a guarantee of mere equality of privileges with other citizens.
But we are not bound to resort to implication, or to the constitutional history of England, to find an authoritative declaration of some of the most important privileges and immunities of citizens of the United States. It is in the Constitution itself. The Constitution, it is true, as it stood prior to the recent amendments, specifies, in terms, only a few of the personal privileges and immunities of citizens, but they are very comprehensive in their character. The States were merely prohibited from passing bills of attainder, ex post facto laws, laws impairing the obligation of contracts, and perhaps one or two more. But others of the greatest consequence were enumerated, although they were only secured, in express terms, from invasion by the Federal government; such as the right of habeas corpus, the right of trial by jury, of free exercise of religious worship, the right of free speech and a free press, the right peaceably to assemble for the discussion of public measures, the right to be secure against unreasonable searches and seizures, and above all, and including almost all the rest, the right of not being deprived of life, liberty, or property, without due process of law. These, and still others are specified in the original Constitution, or in the early amendments of it, as among the privileges and immunities of citizens of the United States, or, what is still stronger for the force of the argument, the rights of all persons, whether citizens or not.
But even if the Constitution were silent, the fundamental privileges and immunities of citizens, as such, would be no less real and no less inviolable than they now are. It was not necessary to say in words that the citizens of the United States should have and exercise all the privileges of citizens; the privilege of buying, selling, and enjoying property; the privilege of engaging in any lawful employment for a livelihood; the privilege of resorting to the laws for redress of injuries, and the like. Their very citizenship conferred these privileges, if they did not possess them before. And these privileges they would enjoy whether they were citizens of any State or not. Inhabitants of Federal territories and new citizens, made such be annexation of territory or naturalization, though without any status as citizens of a State, could, nevertheless, as citizens of the United States, lay claim to every one of the privileges and immunities which have been enumerated; and among these none is more essential and fundamental than the right to follow such profession or employment as each one may choose, subject only to uniform regulations equally applicable to all….
If my views are correct with regard to what are the privileges and immunities of citizens, if follows conclusively that any law which establishes a sheer monopoly, depriving a large class of citizens of the privilege of pursuing a lawful employment, does abridge the privileges of those citizens….
In my opinion the judgment of the Supreme Court of Louisiana ought to be reversed.
Bradley Letter Number Three:
Stowe, VT July 19th, 1874
Dear Frelinghuysen:
As I understand your proposition, it is this: The XIVth Amendment of the Constitution confers U.S. citizenship upon all persons born or naturalized therein and U.S. citizenship upon all persons born or naturalized therein subject to the jurisdiction thereof; and confers state citizenship of the state in which they reside: an therefore Congress, by virtue of the express power given to enforce the amendment, as well as its implied powers, may enforce the amendment, as well as its implied powers, may enforce all the rights, privileges and immunities which attach to such citizenship: and that the only question which remains to be mooted is, what are the rights, privileges and immunities? When uncertain, it is as much the prerogative of Congress to enforce and protect them, as it is of the state.
There is much force in this view, undoubtedly; and I am by no means certain that it is not the true view. My own mind is rather in the condition of seeking the truth, than that of dogmatically laying down opinions; and I am very glad that the Louisiana case is now in a position in which it can be brought before the Supreme Court, and receive the deliberate and well considered judgment of the whole Court.
Your proposition is open to one or two observations which I will make, whilst they occur to me.
First - In saying that the XIVth Amendment confers citizenship, we do not take notice of the fact that, when adopted, it only did this in relation to those who were not citizens before, and these were principally the lately liberated slaves and the free negroes of the Southern States, all or nearly all, others were citizens before. Native whites and naturalized persons were citizens of the states where they resided and citizen of the United States. The immediate operation and effect of this part of the amendment, therefore, was to confer citizenship upon the colored race.
It may be answered, however, that whilst this was only its only immediate effect, its ultimate effect may be far more comprehensive. For, henceforth, title to citizenship would may perhaps, be referable to this clause of the Constitution as the highest fundamental law of the whole sovereignty of this nation. Had such a clause been inserted, in the Constitution of 1789, it cannot be doubted, that the title to all citizenship, state as well as national, would be regarded as flowing therefrom, and not as dependant upon any state or local regulations.
But, secondly, has it not always been the fact that the constitution of the United States conferred citizenship of the United States upon such as were citizens -- not in express terms, but impliedly, and by assumption? And if so, has not Congress always had the same power to protect its own citizens which it now has? And has any such power as that now claimed ever been asserted or pretended?
It seems to me that this is a point of more difficulty than the other. But perhaps it may be answered. I am hardly prepared to regard the express power of legislation given in the XIVth amendment as such an answer.
As to the difficulty which might arise from the conflict of federal and state jurisdictions, I think it would not be insurmountable. Much would depend on what we mean by the “rights privileges and immunities” of citizens. If we mean thereby all the private rights which can accrue in society to a citizen, it would involve the right of Congress to legislate on all subjects of legislation whatever – and would have the effect of establishing a duplicate system of government & law for all purposes – which, I cannot think was ever in the contemplation of a human being whilst the amendments were under discussion.
But I do not think that the rights, privileges and immunities of a citizen embrace all private rights. The rights of the individual and the rights of the citizen are not identical. An individual may be entitled to demand a sum of money from another as a debt. This is his private right as an individual. As a citizen he has a right to the equal benefit of judicial proceedings for its collection. As an individual a man may be entitled to compensation for an injury done to his person or property. As a citizen he is entitled to the means of redress therefore. As an individual a man is entitled to certain specified property – lands, or goods, which he calls his. As a citizen he has a right to be protected in the enjoyment of that property free from governmental interference except by due process of law.
As an individual a mans rights are as varied as the person, the time the place and the circumstances can make them: as a citizen his rights are always the same; -- and the rights of all are alike and equal. These rights are those which Judge Washington attempts to enumerate in Corfield v. Corriell, and which are partially enumerated in the Civil Rights bill of 1866 - vis, the right to purchase, sell, inherit, hold and dispose of property real and person, to sue in the courts, to have redress for injuries the same as all others have - to have and enjoy the equal benefit of the laws. These are the rights that attach to citizenship - whether state or national. They are citizenship. Citizenship consists of these right. These are not all. Certain special rights are deemed of sufficient importance to be specified and guaranteed in the charter of government - Some in the old charter - some I the amendments.
Now let us distinguish between these rights, and the individual rights before referred to. The individual rights are to be secured by the state laws. The rights which attach to citizenship by federal as well as state laws - in some case, perhaps, by both. Let us see what will be the practical distinction in the enforcement of the two classes of rights. They stand on different planes.
B. owes A. a debt and fails to pay it. A attempts to collect it in the state courts and is not by a state law which impairs the obligation. He suffers judgment & brings his suit in U.S. Court.
A citizen as such has a right to sue. It is denied him. How shall he vindicate the right? Shall he sue for the right to sue? This would be absurd. It is then, when his right is denied in the state court, that his right arising in the U.S. Court. This is the only practical way in which he can vindicate his right to sue.
The right to sue stands on a different plane from that of the right to the redress sued for. The former is fundamental - organic. The latter is municipal.
The rights, privileges, and immunities of a citizen, as such are those which arise out of citizenship; and are such as relate to the state and not such as relate to individuals. A debt is not a right of citizenship, but the right to prosecute it in the courts is such a right. The price of property or labor is a right against individuals, the right to buy and sell property, and to the proceeds of one's labor is a right of citizenship.
Rights belonging to a citizen as such are those fundamental constitutional rights which give him a status in the community in which he lives both as it regards government & his fellow citizens.
Source: Bradley Papers, Box 18, NJ Historical Society
Source: Bradley Papers, NJ Historical Society
Mr. Justice BRADLEY delivered the opinion of the court.
It is obvious that the primary and important question in all 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:
Sect. 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.
Sect. 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 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:
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 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 of their operation and effect….
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….
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 therefore 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 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….
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?…
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 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….
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.
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….
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?…
I am of the opinion that such discrimination practiced 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….
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.”…
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. 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.” To-day, 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—every one 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.
Source: 109 U.S. 3 (1883).
Plessy v. Ferguson
Mr. Justice BROWN, after stating the case, delivered the opinion of the court.
This case turns upon the constitutionality of an act of the General Assembly of the State of Louisiana, passed in 1890, providing for separate railway carriages for the white and colored races.
The first section of the statute enacts “that all railway companies carrying passengers in their coaches in this State, shall provide equal but separate accommodations for the white, and colored races, by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations….”
The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for white and colored children, which has been held to be a valid exercise of the legislative power even by courts of States where the political rights of the colored race have been longest and most earnestly enforced….
While we think the enforced separation of the races, as applied to the internal commerce of the State, neither abridges the privileges or immunities of the colored man, deprives him of his property without due process of law, nor denies him the equal protection of the laws, within the meaning of the Fourteenth Amendment, we are not prepared to say that the conductor, in assigning passengers to the coaches according to their race, does not act at his peril, or that the provision of the second section of the act, that denies to the passenger compensation in damages for a refusal to receive him into the coach in which he properly belongs, is a valid exercise of the legislative power. Indeed, we understand it to be conceded by the State’s attorney, that such part of the act as exempts from liability the railway company and its officers is unconstitutional. The power to assign to a particular coach obviously implies the power to determine to which race the passenger belongs, as well as the power to determine who, under the laws of the particular State, is to be deemed a white, and who a colored person. This question, though indicated in the brief of the plaintiff in error, does not properly arise upon the record in this case, since the only issue made is as to the unconstitutionality of the act, so far as it requires the railway to provide separate accommodations, and the conductor to assign passengers according to their race.
It is claimed by the plaintiff in error that, in any mixed community, the reputation of belonging to the dominant race, in this instance the white race, is property, in the same sense that a right of action, or of inheritance, is property. Conceding this to be so, for the purposes of this case, we are unable to see how this statute deprives him of, or in any way affects his right to, such property. If he be a white man and assigned to a colored coach, he may have his action for damages against the company for being deprived of his so called property. Upon the other hand, if he be a colored man and be so assigned, he has been deprived of no property, since he is not lawfully entitled to the reputation of being a white man.
In this connection, it is also suggested by the learned counsel for the plaintiff in error that the same argument that will justify the state legislature in requiring railways to provide separate accommodations for the two races will also authorize them to require separate cars to be provided for people whose hair is of a certain color, or who are aliens, or who belong to certain nationalities, or to enact laws requiring colored people to walk upon one side of the street, and white people upon the other, or requiring white men’s houses to be painted white, and colored men’s black, or their vehicles or business signs to be of different colors, upon the theory that one side of the street is as good as the other, or that a house or vehicle of one color is as good as one of another color. The reply to all this is that every exercise of the police power must be reasonable, and extend only to such laws as are enacted in good faith for the promotion for the public good, and not for the annoyance or oppression of a particular class….
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 their comfort, and the preservation 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.
We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. The argument necessarily assumes that if, as has been more than once the case, and is not unlikely to be so again, the colored race should become the dominant power in the state legislature, and should enact a law in precisely similar terms, it would thereby relegate the white race to an inferior position. We imagine that the white race, at least, would not acquiesce in this assumption. The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other’s merits and a voluntary consent of individuals….
The judgment of the court below is, therefore,
Affirmed.
Mr. Justice HARLAN dissenting.
…The Thirteenth Amendment does not permit the withholding or the deprivation of any right necessarily inhering in freedom. It not only struck down the institution of slavery as previously existing in the United States, but it prevents the imposition of any burdens or disabilities that constitute badges of slavery or servitude. It decreed universal civil freedom in this country. This court has so adjudged. But that amendment having been found inadequate to the protection of the rights of those who had been in slavery, it was followed by the Fourteenth Amendment, which added greatly to the dignity and glory of American citizenship, and to the security of personal liberty, by declaring that “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,” and that “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.” These two amendments, if enforced according to their true intent and meaning, will protect all the civil rights that pertain to freedom and citizenship. Finally, and to the end that no citizen should be denied, on account of his race, the privilege of participating in the political control of his country, it was declared by the Fifteenth Amendment that “the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color or previous condition of servitude.”
These notable additions to the fundamental law were welcomed by the friends of liberty throughout the world. They removed the race line from our governmental systems….
The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. It is, therefore, to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a State to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.
In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case. It was adjudged in that case that the descendants of Africans who were imported into this country and sold as slaves were not included nor intended to be included under the word “citizens” in the Constitution, and could not claim any of the rights and privileges which that instrument provided for and secured to citizens of the United States; that at the time of the adoption of the Constitution they were “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.” The recent amendments of the Constitution, it was supposed, had eradicated these principles from our institutions. But it seems that we have yet, in some of the States, a dominant race—a superior class of citizens, which assumes to regulate the enjoyment of civil rights, common to all citizens, upon the basis of race. The present decision, it may well be apprehended, will not only stimulate aggressions, more or less brutal and irritating, upon the admitted rights of colored citizens, but will encourage the belief that it is possible, by means of state enactments, to defeat the beneficent purposes which the people of the United States had in view when they adopted the recent amendments of the Constitution, by one of which the blacks of this country were made citizens of the United States and of the States in which they respectively reside, and whose privileges and immunities, as citizens, the States are forbidden to abridge. Sixty millions of whites are in no danger from the presence here of eight millions of blacks. The destinies of the two races, in this country, are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law. What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races, than state enactments, which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens? That, as all will admit, is the real meaning of such legislation as was enacted in Louisiana.
The sure guarantee of the peace and security of each race is the clear, distinct, unconditional recognition by our governments, National and State, of every right that inheres in civil freedom, and of the equality before the law of all citizens of the United States without regard to race….
There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race. But by the statute in question, a Chinaman can ride in the same passenger coach with white citizens of the United States, while citizens of the black race in Louisiana, many of whom, perhaps, risked their lives for the preservation of the Union, who are entitled, by law, to participate in the political control of the State and nation, who are not excluded, by law or by reason of their race, from public stations of any kind, and who have all the legal rights that belong to white citizens, are yet declared to be criminals, liable to imprisonment, if they ride in a public coach occupied by citizens of the white race. It is scarcely just to say that a colored citizen should not object to occupying a public coach assigned to his own race. He does not object, nor, perhaps, would he object to separate coaches for his race, if his rights under the law were recognized. But he objects, and ought never to cease objecting to the proposition, that citizens of the white and black races can be adjudged criminals because they sit, or claim the right to sit, in the same public coach on a public highway.
The arbitrary separation of citizens, on the basis of race, while they are on a public highway, is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution. It cannot be justified upon any legal grounds….
I am of opinion that the statute of Louisiana is inconsistent with the personal liberty of citizens, white and black, in that State, and hostile to both the spirit and letter of the Constitution of the United States. If laws of like character should be enacted in the several States of the Union, the effect would be in the highest degree mischievous. Slavery, as an institution tolerated by law would, it is true, have disappeared from our country, but there would remain a power in the States, by sinister legislation, to interfere with the full enjoyment of the blessings of freedom; to regulate civil rights, common to all citizens, upon the basis of race; and to place in a condition of legal inferiority a large body of American citizens, now constituting a part of the political community called the People of the United States, for whom, and by whom through representatives, our government is administered. Such a system is inconsistent with the guarantee given by the Constitution to each State of a republican form of government, and may be stricken down by Congressional action, or by the courts in the discharge of their solemn duty to maintain the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding.
For the reasons stated, I am constrained to withhold my assent from the opinion and judgment of the majority.
Source: 163 U.S. 537 (1896).