Civil Rights Cases

Explanation and Analysis of the Document

Joseph P. Bradley: Majority Opinion

The five cases consolidated in the Civil Rights Cases were United States v. Stanley, United States v. Ryan, United States v. Nichols, United States v. Singleton, and Robinson & Wife v. Memphis and Charleston Railroad Company. The Stanley and Nichols cases concerned indictments for denying access to inns or hotels; the Ryan and Singleton cases addressed access to theaters, one in San Francisco and the other in New York City. The Robinson case had originally been brought in Tennessee and involved the refusal of the Memphis and Charleston Railroad Company to allow Mrs. Robinson to travel in a ladies’ train car. U.S. Solicitor General Samuel F. Phillips submitted all but the Robinson case as a group on November 7, 1882; briefs regarding the Robinson case were submitted on March 29, 1883.

The five related lawsuits in the Civil Rights Cases all had to do with Section 1 of the Civil Rights Act of 1875, which stated:

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, theaters, or other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude.

Section 2 of the act stipulated:

Any person who shall violate [Section 1] … shall … forfeit and pay the sum of five hundred dollars to the person aggrieved thereby … and shall also, for every such offense, 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.

Writing for the majority of justices, Justice Bradley no longer argued for a broad view of the Fourteenth Amendment, which he had proposed in previous cases. With the Civil Rights Cases majority opinion, Bradley echoed the narrow position of the Slaughter-House Cases (1873) majority opinion, which held that state authority was primary and national authority was secondary or “corrective.” He rejected the radical pro-nationalist, expansive-rights view and contended instead that the Civil Rights Act of 1875 was an impermissible attempt by Congress to regulate the private conduct of individuals with respect to racial discrimination. The act, Bradley wrote, “does not profess to be corrective of any constitutional wrong committed by the States.” Regarding Section 4 of the act, he held that even private interference with such rights as voting, jury service, or appearing as witnesses in state court were not within Congress’s control. Anyone faced with such interference had to look to state courts for relief.

The Court had two important missions in issuing this ruling: to contain the power of Congress in enacting legislation and to safeguard states’ rights. The first became a prerequisite for the second. With respect to the first, Bradley stipulated that “legislation which Congress is authorized to adopt … is not general … but corrective legislation.” To emphasize this point, Bradley repeated the word corrective ten more times. As for the second objective, Bradley almost buried the following point in the opinion’s text: “Legislation cannot properly cover the whole domain of rights appertaining to life, liberty, and property, defining them and providing for their vindication. … It would be to make Congress take the place of the State legislatures and to supersede them.” Federal limitation of state authority through acts of Congress was what the Court most wanted to prevent. While the Court’s majority did not challenge the Fourteenth Amendment’s applicability to state laws and actions, it also did not tolerate congressional oversight of what it considered private actions regulated under state laws.

Bradley argued that while private actors broke laws, their actions could not destroy civil rights; only states could do that. In other words, “civil rights … 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 … is simply a private wrong, or a crime of that individual.” According to this reasoning, demonstrations of white supremacy and incidents of segregation and violence against blacks were wrongful private acts and did not generate anything akin to a state action, that is, the denial of civil rights, which could be remedied only by a corrective governmental action.

In the event confusion might persist on the distinction between wrongful private acts and deprivation of civil rights, Bradley provided several specific examples:

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 … [according to] the laws of the State where the wrongful acts are committed.

In sum, an individual’s civil rights could not be destroyed by the acts of others. Any damage done had to be handled as a crime by the state where the offense had occurred.

Bradley also rejected the argument that the Thirteenth Amendment allowed Congress to pass the Civil Rights Act, since denial of access to public accommodations did not constitute slavery. According to the Court, such a broad construction of the Thirteenth Amendment would run “the slavery argument into the ground to make it apply to every act of discrimination.” Bradley then went on to assert:

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.

Gone from the Civil Rights Cases majority opinion was the generous spirit of Bradley’s circuit-court opinion in an antecedent to the Slaughter-House Cases. In 1870, three years before the Supreme Court struck down the privileges and immunities clause of the Fourteenth Amendment in the Slaughter-House Cases ruling, Bradley had issued judicial relief for a “flagrant case of violation of the fundamental rights of labor” in Livestock Dealers’ & Butchers Association v. Crescent City Live-Stock Landing & Slaughterhouse Co., et al., often called the Crescent City Case. Here he had reasoned that where the Constitution “has provided a remedy, we ought not to shrink from granting the appropriate relief.” Gone, too, was Bradley’s earlier view that Congress had been authorized to enforce the Fourteenth Amendment with “appropriate legislation.” Gone was the perception that “those who framed the article were not themselves aware” of its breadth. Gone was the belief that the Fourteenth Amendment went beyond the “privileges and immunities” of the original Constitution and embraced potentially far more. Gone was the principle that “the privileges and immunities of all citizens shall be absolutely unabridged, unimpaired.” Gone as well was the conviction of Bradley’s opinion in United States v. Cruikshank, which stated “that Congress has the power to secure [the rights of blacks] not only as against the unfriendly operation of state laws, but against outrage … on the part of individuals, irrespective of state laws.”

John Marshall Harlan: Dissent

Justice John Marshall Harlan was the sole justice who dissented from the majority opinion. Although Justice Bradley had forsaken the pro–civil rights stance of his Crescent City Case opinion and Slaughter-House Cases dissent, Justice Harlan used Bradley’s reasoning in those cases as a starting point for his dissent in the Civil Rights Cases. While by the 1880s many Republicans had abandoned Radical Reconstruction and the extension of civil rights, Harlan had grown more committed to alleviating the plight of African Americans. Few, if any, nineteenth-century Supreme Court opinions have proved to be more prescient or memorable than Harlan’s dissent in the Civil Rights Cases.

With a cherished pen and inkwell, the same pen that Chief Justice Roger Taney had used to write the majority opinion in Dred Scott v. Sandford, Harlan composed his dissent in the Civil Rights Cases. He forcefully rejected the majority opinion as “entirely too narrow and artificial,” protesting that the Thirteenth Amendment gave Congress sufficient power to legislate beyond matters of bondage to address all “badges of slavery.” At thirty-six pages and considerably longer than the majority opinion, Harlan’s dissent characterized the Civil Rights Cases decision as at best tepid jurisprudential progress.

Harlan took aim at the Court majority’s tandem mission with two goals of his own: a detailed critique of the view of congressional authority as “corrective” and recognition of “the enlarged powers conferred by the recent amendments upon the general government.” He began his dissent with the observation that the Court had, in effect, sacrificed the recent Reconstruction Amendments (the Thirteenth, Fourteenth, and Fifteenth Amendments) to the Constitution and concluded, among other important points, that “the rights which Congress, by the act of 1875, endeavored to secure and protect are legal, not social rights.”

Harlan stressed a number of Court decisions that conflicted with the majority opinion, particularly with respect to the Court’s authority to overturn congressional legislation. In Fletcher v. Peck, the Court had maintained that to determine whether Congress had transgressed its constitutional power was “a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative.” In the Sinking Fund Cases—where railroad companies challenged a lower court injunction against them for trying to pay a stock dividend in alleged violation of recent legislation—the Court had held that declaring an act of Congress void “should never be made except in a clear case” and “every possible presumption is in favor of the validity of a statute.” The Court’s decision in Prigg v. Commonwealth of Pennsylvania held that “when the end is required the means are given” to Congress, though in that case “the end” had meant support for slavery and slaveholders. In Ableman v. Booth, the Court had sustained the constitutionality of the Fugitive Slave Act of 1850 “upon the implied power of Congress to enforce” the property claims of slaveholders. Harlan’s point was that when slaveholders controlled the federal government, the Court had sustained the authority of Congress to legislate in favor of slavery; however, when it came to enforcement of the Constitution and civil rights in the years after Reconstruction, the Court was doing just the opposite—ruling to impede the legislative authority of Congress.

Perhaps the Court was at least a little embarrassed to be blocking civil rights legislation, especially once Harlan pointed out the litany of recent rulings that appeared to contradict the majority opinion. According to the Court in Strauder v. West Virginia and Ex parte Virginia, the purpose of the Reconstruction Amendments “was to raise the colored race from that condition of inferiority … into perfect equality of civil rights.” In both United States v. Cruikshank and United States v. Reese, the Court had held that the Fifteenth Amendment “invested the citizens of the United States with a new constitutional right, which is exemption from discrimination” and that “the right to vote comes from the States; but the right of exemption from the prohibited discrimination comes from the United States.”

According to Harlan, “exemption from discrimination … is a new constitutional right” conferred by the nation; Congress shall provide for the “form and manner” of protecting this right. Overwhelmed by the Court’s contradictions and conservatism, Harlan posed this question: “Are the powers of the national legislature to be restrained in proportion as the rights and privileges, derived from the nation, are valuable?” One can sense Harlan’s extreme frustration with the Court in his concluding comment:

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.

If the Court had wanted to protect civil rights, legal precedent already existed. In his presentation to the justices, Solicitor General Phillips brought up Munn v. Illinois (1876), in which the Court had held that government regulation of privately owned grain elevators was “necessary for the public good” and had also affirmed broad police powers for government: “Under the powers inherent in every sovereignty, a government may regulate the conduct of its citizens toward each other.” In his Civil Rights Cases dissent, Justice Harlan likewise observed that in Munn v. Illinois the Court had ruled that private property is no longer only a private concern when it becomes “affected with a public interest.” Accordingly, the Court might well have viewed inns and railroads as public enterprises and thus under the purview of Congress.

Moreover, the Court could have looked to the commerce clause of the Constitution (Article I, Section 8). Justice Harlan noted just that regarding the Robinson case: “Might not the act of 1875 be maintained in that case, as applicable at least to commerce between the States, notwithstanding [that] it does not … profess to have been passed … to regulate commerce?” When Salmon Chase was chief justice from 1864 to 1873, the Court did not alter the interpretation of the commerce clause. In the Civil Rights Cases majority opinion, Justice Bradley acknowledged that “Congress is clothed with direct and plenary powers of legislation” under the commerce clause. However, he did not appear to accept that the three Reconstruction Amendments bolstered Congress’s legislative plenary powers. Thus, Bradley dismissed whether inns and public conveyances were encompassed under Congress’s legislative authority under the commerce clause as “a question which is not now before us.” Nevertheless, the Court could have found the Civil Rights Act of 1875 constitutional under the commerce clause, especially in light of its Munn v. Illinois ruling.

That Bradley interpreted the Fourteenth Amendment as merely “corrective” elicited Harlan’s harshest criticism. Harlan observed that the entire amendment hardly assumed what Bradley claimed was an exclusively negative or “corrective” form simply because of the clause in Section 1 beginning with “no state shall.” The historian Carter Woodson offered this candid assessment: “The court was too evasive or too stupid to observe that the first clause of this amendment was an affirmative.… Such sophistry deserves the condemnation of all fair-minded people.” The Court also might have interpreted the Civil Rights Act and the Reconstruction Amendments in light of factors such as history and legislative intent. Or as Harlan put it, borrowing from an old adage: “It is not the words of the law but the internal sense of it that makes the law; the letter of the law is the body; the sense and reason of the law is the soul.”