Civil Rights Cases
(United States v. Stanley; United States v. Ryan; United
States v. Nichols; United States v. Singleton;
Robinson et ux. v. Memphis & Charleston R.R. Co.)
109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883)
BRADLEY, J.
It is obvious that
the primary and important question in all [109 U.S. 3, 9] the
cases is the constitutionality of the [Civil Rights Act of 1875]; for if the law
is unconstitutional none of the prosecutions can stand.
The sections of the
law referred to provide as follows:
'Section 1. That all persons within the
jurisdiction of the United States shall be entitled to the full and equal
enjoyment of the accommodations, advantages, facilities, and privileges of
inns, public conveyances on land or water, theaters, and other places of public
amusement; subject only to the conditions and limitations established by law,
and applicable alike to citizens of every race and color, regardless of any
previous condition of servitude.
'Sec. 2. That any person who shall
violate the foregoing section by denying to any citizen, except for reasons by
law applicable to citizens of every race and color, and regardless of any previous
condition of servitude, the full enjoyment of any of the accommodations,
advantages, facilities, or privileges in said section enumerated, or by aiding
or inciting such denial, shall, for every such offense, forfeit and pay the sum
of $500 to the person aggrieved thereby, to be recovered in an action of debt,
with full costs; and shall, also, for every such offense, be deemed guilty of a
misdemeanor, and upon conviction thereof shall be fined not less than $500 nor
more than $1,000, or shall be imprisoned not less than 30 days nor more than
one year: Provided, that all persons may elect to sue for the penalty
aforesaid, or to proceed under their rights at common law and by state
statutes; and having so elected to proceed in the one mode or the other, their
right to proceed in the other jurisdiction shall be barred. But this provision
shall not apply to criminal proceedings, either under this act or the criminal
law of any state: And provided, further, that a judgment for the penalty in
favor of the party aggrieved, or a judgment upon an indictment, shall be a bar
to either prosecution respectively.'
Are these sections
constitutional? The first section, which is the principal one, cannot be fairly
understood without attending to the last clause, which qualifies the preceding
part. The essence of the law is, not to declare broadly that all persons shall
be entitled to the full and equal enjoyment of the accommodations, advantages,
facilities, and privileges of inns, [109 U.S. 3, 10] public
conveyances, and theatres; but that such enjoyment shall not be subject to any
conditions applicable only to citizens of a particular race or color, or who
had been in a previous condition of servitude. In other words, it is the
purpose of the law to declare that, in the enjoyment of the accommodations and
privileges of inns, public conveyances, theaters, and other places of public
amusement, no distinction shall be made between citizens of different race or
color, or between those who have, and those who have not, been slaves. Its
effect is to declare that in all inns, public conveyances, and places of
amusement, colored citizens, whether formerly slaves or not, and citizens of
other races, shall have the same accommodations and privileges in all inns,
public conveyances, and places of amusement, as are enjoyed by white citizens;
and vice versa. The second section makes it a penal offense in any person to
deny to any citizen of any race or color, regardless of previous servitude, any
of the accommodations or privileges mentioned in the first section.
Has
congress constitutional power to make such a law? Of course, no one will
contend that the power to pass it was contained in the constitution before the
adoption of the last three amendments. The power is sought, first, in the
fourteenth amendment, and the views and arguments of distinguished senators,
advanced while the law was under consideration, claiming authority to pass it
by virtue of that amendment, are the principal arguments adduced in favor of
the power. We have carefully
considered those arguments, as was due to the eminent ability of those who put
them forward, and have felt, in all its force, the weight of authority which
always invests a law that congress deems itself competent to pass. But the
responsibility of an independent judgment is now thrown upon this court; and we
are bound to exercise it according to the best lights we have.
The first
section of the fourteenth amendment,—which is the one relied on,—after
declaring who shall be citizens of the United States, and of the several
states, is prohibitory in its character, and prohibitory upon the states. It
declares that [109 U.S.
3, 11] 'no state shall make or
enforce any law which shall abridge the privileges or immunities of citizens of
the United States; nor shall any state deprive any person of life, liberty, or
property without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.' It is state action of a
particular character that is prohibited. Individual invasion of individual
rights is not the subject- matter of the amendment. It has a deeper and broader
scope. It nullifies and makes void all state legislation, and state action of
every kind, which impairs the privileges and immunities of citizens of the
United States, or which injures them in life, liberty, or property without due
process of law, or which denies to any of them the equal protection of the
laws. It not only does this, but, in order that the national will, thus
declared, may not be a mere brutum fulmen, the last section of the amendment invests
congress with power to enforce it by appropriate legislation. To enforce what?
To enforce the prohibition. To adopt appropriate legislation for correcting the
effects of such prohibited state law and state acts, and thus to render them
effectually null, void, and innocuous. This is the legislative power conferred
upon congress, and this is the whole of it. It does not invest congress with
power to legislate upon subjects which are within the domain of state
legislation; but to provide modes of relief against state legislation, or state
action, of the kind referred to. It does not authorize congress to create a
code of municipal law for the regulation of private rights; but to provide
modes of redress against the operation of state laws, and the action of state
officers, executive or judicial, when these are subversive of the fundamental
rights specified in the amendment. Positive rights and privileges are
undoubtedly secured by the fourteenth amendment; but they are secured by way of
prohibition against state laws and state proceedings affecting those rights and
privileges, and by power given to congress to legislate for the purpose of
carrying such prohibition into effect; and such legislation must necessarily be
predicated upon such supposed state laws or state proceedings, and be directed
to the correc- [109 U.S. 3, 12] tion of their operation and
effect. A quite full discussion of this aspect of the amendment may be found in
U. S. v. Cruikshank, 92 U.S. 542 ; Virginia
v. Rives, 100 U.S. 313 , and Ex parte Virginia, Id. 339.
An apt illustration
of this distinction may be found in some of the provisions of the original
constitution. Take the subject of contracts, for example. The constitution
prohibited the states from passing any law impairing the obligation of
contracts. This did not give to congress power to provide laws for the general
enforcement of contracts; nor power to invest the courts of the United States
with jurisdiction over contracts, so as to enable parties to sue upon them in
those courts. It did, however, give the power to provide remedies by which the
impairment of contracts by state legislation might be counteracted and
corrected; and this power was exercised. The remedy which congress actually
provided was that contained in the twenty-fifth section of the judiciary act of
1789, giving to the supreme court of the United States jurisdiction by writ of
error to review the final decisions of state courts whenever they should
sustain the validity of a state statute or authority, alleged to be repugnant
to the constitution or laws of the United States. By this means, if a state law
was passed impairing the obligation of a contract, and the state tribunals
sustained the validity of the law, the mischief could be corrected in this
court. The legislation of congress, and the proceedings provided for under it,
were corrective in their character. No attempt was made to draw into the United
States courts the litigation of contracts generally, and no such attempt would
have been sustained. We do not say that the remedy provided was the only one
that might have been provided in that case. Probably congress had power to pass
a law giving to the courts of the United States direct jurisdiction over
contracts alleged to be impaired by a state law; and, under the broad
provisions of the act of March 3, 1875, giving to the circuit courts jurisdiction of all cases arising under the
constitution and laws of the United States, it is possible that such
jurisdiction now exists. But under that or any other
law, it must appear, as [109 U.S. 3, 13] well by
allegation as proof at the trial, that the constitution had been violated by
the action of the state legislature. Some obnoxious state law passed, or that
might be passed, is necessary to be assumed in order to lay the foundation of
any federal remedy in the case, and for the very sufficient reason that the
constitutional prohibition is against state laws impairing the obligation of
contracts.
And so in
the present case, until some state law has been passed, or some state action
through its officers or agents has been taken, adverse to the rights of
citizens sought to be protected by the fourteenth amendment, no legislation of
the United States under said amendment, nor any proceeding under such
legislation, can be called into activity, for the prohibitions of the amendment
are against state laws and acts done under state authority. Of course, legislation may and should
be provided in advance to meet the exigency when it arises, but it should be
adapted to the mischief and wrong which the amendment was intended to provide against;
and that is, state laws or state action of some kind adverse to the rights of
the citizen secured by the amendment. Such legislation cannot properly cover
the whole domain of rights appertaining to life, liberty, and property,
defining them and providing for their vindication. That would be to establish a
code of municipal law regulative of all private rights between man and man in
society. It would be to make congress take the place of the state legislatures
and to supersede them. It is absurd to affirm that, because the rights of life,
liberty, and property (which include all civil rights that men have) are by the
amendment sought to be protected against invasion on the part of the state
without due process of law, congress may, therefore, provide due process of law
for their vindication in every case; and that, because the denial by a state to
any persons of the equal protection of the laws is prohibited by the amendment,
therefore congress may establish laws for their equal protection. In fine, the
legislation which congress is authorized to adopt in this behalf is not general
legislation upon the rights of the citizen, but corrective legislation; that
is, such as may be necessary and proper for counteracting such laws as the
states may [109
U.S. 3, 14] adopt or enforce, and which by the
amendment they are prohibited from making or enforcing, or such acts and
proceedings as the states may commit or take, and which by the amendment they
are prohibited from committing or taking. It is not necessary for us to state,
if we could, what legislation would be proper for congress to adopt. It is
sufficient for us to examine whether the law in question is of that character.
An inspection of the
law shows that it makes no reference whatever to any supposed or apprehended
violation of the fourteenth amendment on the part of the states. It is not
predicated on any such view. It proceeds ex
directo to declare that certain acts committed by
individuals shall be deemed offenses, and shall be prosecuted and punished by
proceedings in the courts of the United States. It does not profess to be
corrective of any constitutional wrong committed by the states; it does not
make its operation to depend upon any such wrong committed. It applies equally
to cases arising in states which have the justest
laws respecting the personal rights of citizens, and whose authorities are ever
ready to enforce such laws as to those which arise in states that may have
violated the prohibition of the amendment. In other words, it steps into the
domain of local jurisprudence, and lays down rules for the conduct of
individuals is society towards each other, and imposes sanctions for the
enforcement of those rules, without referring in any manner to any supposed
action of the state or its authorities.
If this legislation
is appropriate for enforcing the prohibitions of the amendment, it is difficult
to see where it is to stop. Why may not congress, with equal show of authority,
enact a code of laws for the enforcement and vindication of all rights of life,
liberty, and property? If it is supposable that the states may deprive persons
of life, liberty, and property without due process of law, (and the amendment
itself does suppose this,) why should not congress proceed at once to prescribe
due process of law for the protection of every one of these fundamental rights,
in every possible case, as well as to prescribe equal privileges in inns,
public conveyances, and theaters. The truth is that the implication of a power
to legislate in this manner is based [109 U.S. 3, 15] upon the assumption
that if the states are forbidden to legislate or act in a particular way on a
particular subject, and power is conferred upon congress to enforce the
prohibition, this gives congress power to legislate generally upon that
subject, and not merely power to provide modes of redress against such state
legislation or action. The assumption is certainly unsound. It is repugnant to
the tenth amendment of the constitution, which declares that powers not
delegated to the United States by the constitution, nor prohibited by it to the
states, are reserved to the states respectively or to the people.
We have not
overlooked the fact that the fourth section of the act now under consideration
has been held by this court to be constitutional. That section declares 'that
no citizen, possessing all other qualifications which are or may be prescribed
by law, shall be disqualified for service as grand or petit juror in any court
of the United States, or of any state, on account of race, color, or previous
condition of servitude; and any officer or other person charged with any duty
in the selection or summoning of jurors who shall exclude or fail to summon any
citizen for the cause aforesaid, shall, on conviction thereof, be deemed guilty
of a misdemeanor, and be fined not more than five thousand dollars.' In Ex parte Virginia, 100 U.S. 339 ,
it was held that an indictment against a state officer under this section for
excluding persons of color from the jury list is sustainable. But a moment's
attention to its terms will show that the section is entirely corrective in its
character. Disqualifications for service on juries are only created by the law,
and the first part of the section is aimed at certain disqualifying laws,
namely, those which make mere race or color a disqualification; and the second
clause is directed against those who, assuming to use the authority of the
state government, carry into effect such a rule of disqualification. In the Virginia case, the state, through its
officer, enforced a rule of disqualification which the law was intended to
abrogate and counteract. Whether the statute-book of the state actually laid
down any such rule of disqualification or not, the state, through its officer,
enforced such a rule; and it is against such state action, through its officers
and agents, that the last clause of the section is directed. [109 U.S. 3, 16] This
aspect of the law was deemed sufficient to divest it of any unconstitutional
character, and makes it differ widely from the first and second sections of the
same act which we are now considering.
* * * *
On the whole, we are
of opinion that no countenance of authority for the passage of the law in
question can be found in either the thirteenth or fourteenth amendment of the
constitution; and no other ground of authority for its passage being suggested,
it must necessarily be declared void, at least so far as its operation in the
several states is concerned.
This conclusion
disposes of the cases now under consideration. In the cases of U. S. v. Ryan, and of Robinson v. Memphis & C. [109
U.S. 3, 26] R. Co., the judgments must be affirmed. In the other
cases, the answer to be given will be, that the first and second sections of
the act of congress of March 1, 1875, entitled 'An act to protect all citizens
in their civil and legal rights,' are unconstitutional and void, and that
judgment should be rendered upon the several indictments in those cases
accordingly. And it is so ordered.
HARLAN, J., dissenting.
The opinion in these
cases proceeds, as it seems to me, upon grounds entirely too narrow and
artificial. The substance and spirit of the recent amendments of the
constitution have been sacrificed by a subtle and ingenious verbal criticism.
'It is not the words of the law but the internal sense of it that makes the
law. The letter of the law is the body; the sense and reason of the law is the
soul.' Constitutional provisions, adopted in the interest of liberty, and for
the purpose of securing, through national legislation, if need be, rights
inhering in a state of freedom, and belonging to American citizenship, have
been so construed as to defeat the ends the people desired to accomplish, which
they attempted to accomplish, and which they supposed they had accomplished by
changes in their fundamental law. By this I do not mean that the determination
of these cases should have been materially controlled by considerations of mere
expediency or policy. I mean only, in this form, to express an earnest
conviction that the court has departed from the familiar rule requiring, in the
interpretation of constitutional provisions, that full effect be given to the
intent with which they were adopted.
The purpose of the
first section of the act of congress of March 1, 1875, was to prevent race
discrimination. It does not assume to define the general conditions and
limitations under which inns, public conveyances, and places of public
amusement may be conducted, but only declares that such conditions and
limitations, whatever they may be, shall not be applied, by way of [109
U.S. 3, 27] discrimination, on account of race, color, or previous
condition of servitude. The second section provides a penalty against any one
denying, or aiding or inciting the denial, to any citizen that equality of
right given by the first section, except for reasons by law applicable to
citizens of every race or color, and regardless of any previous condition of
servitude.
There seems to be no
substantial difference between my brethren and myself as to what was the
purpose of congress; for they say that the essence of the law is, not to
declare broadly that all persons shall be entitled to the full and equal
enjoyment of the accommodations, advantages, facilities, and privileges of
inns, public conveyances, and theaters, but that such enjoyment shall not be
subject to any conditions applicable only to citizens of a particular race or
color, or who had been in a previous condition of servitude. The effect of the
statute, the court says, is that colored citizens, whether formerly slaves or
not, and citizens of other races, shall have the same accommodations and
privileges in all inns, public conveyances, and places of amusement as are
enjoyed by white persons, and vice versa.
The court adjudges
that congress is without power, under either the thirteenth or fourteenth
amendment, to establish such regulations, and that the first and second
sections of the statute are, in all their parts, unconstitutional and void.
* * * *
In Prigg v. Com. 16 Pet. 539, this court had
occasion to define the powers and duties of congress in reference to fugitives
from labor. Speaking by Mr. Justice STORY, the court laid down these
propositions: That a clause of the constitution conferring a right should not
be so construed as to make it shadowy, or unsubstantial, or leave the citizen
without a remedial power adequate for its protection, when another mode,
equally accordant with the words and the sense in which they were used, would
enforce and protect the right so granted; that congress is not restricted to
legislation for the exer- [109 U.S. 3, 29] tion of its powers expressly granted; but,
for the protection of rights guarantied by the
constitution, it may employ, through legislation, such means, not prohibited,
as are necessary and proper, or such as are appropriate, to attain the ends
proposed; that the constitution recognized the master's right of property in
his fugitive slave, and, as incidental thereto, the right of seizing and
recovering him, regardless of any state law, or regulation, or local custom
whatsoever; and that the right of the master to have his slave, so escaping,
delivered up on claim, being guarantied by the
constitution, the fair implication was that the national government was clothed
with appropriate authority and functions to enforce it.
The court said:
'The fundamental principle, applicable
to all cases of this sort, would seem to be that when the end is required the
means are given, and when the duty is enjoined the ability to perform it is
contemplated to exist on the part of the functionary to whom it is intrusted.'
Again:
'It would be a strange anomaly and
forced construction to suppose that the national government meant to rely for
the due fulfillment of its own proper duties, and the rights which it intended
to secure, upon state legislation, and not upon that of the Union. A fortiori,
it would be more objectionable to suppose that a power which was to be the same
throughout the Union should be confided to state sovereignty, which could not
rightfully act beyond its own territorial limits.'
The act of 1793 was,
upon these grounds, adjudged to be a constitutional exercise of the powers of
congress.
* * * *
…I
do not contend that the thirteenth amendment invests congress with authority,
by legislation, to regulate the entire body of the civil rights which citizens
enjoy, or may enjoy, in the several states. But I do hold that since slavery,
as the court has repeatedly declared, was the moving or principal cause of the
adoption of that amendment, and since that institution rested wholly upon the
inferiority, as a race, of those held in bondage, their freedom necessarily
involved immunity from, and protection against, all discrimination against
them, because of their race, in respect of such civil rights as belong to
freemen of other races. Congress, therefore, under its express power to enforce
that amendment, by appropriate legislation, may enact laws to protect that
people against the deprivation, on account of their race, of any civil rights
enjoyed by other freemen in the same state; and such legislation may be of a
direct and primary character, operating upon states, their officers and agents,
and also upon, at least, such individuals and corporations as exercise public
functions and wield power and authority under the state.
* * * *