Civil Rights Cases - Dissent

Dissent

Justice Harlan challenged the Court's narrow interpretation of the Thirteenth and Fourteenth Amendment in his dissent. As he noted, Congress was attempting to overcome the refusal of the states to protect the rights denied to African-Americans that white citizens took as their birthright.

Among other things, Harlan mentioned that private railroads (Olcott v. Superiors, 16 Wall. 694) are by law public highways, and it is the function of the government to make and maintain highways for the conveyance of the public; that innkeepers have long been held to be "a sort of public servants" (Rex v. Ivens, 1835) that had no right to deny to anyone "conducting himself in a proper manner" admission to his inn; and that public amusements are maintained under a license coming from the public.

Harlan thus noted that permitting discrimination in those areas would affect public, not private, interests, and argued that permitting such discrimination would impinge upon the black citizens' freedom of travel, a fundamental aspect of liberty (quoting Blackstone, "Personal liberty consists in the power of locomotion.. or removing one's person to whatever place one's one inclination may direct, without restraint, unless by due course of law.") Restriction on the freedom of travel, Harlan noted, would be "a badge of servitude" in violation of the Thirteenth amendment (that banned both slavery and involuntary servitude). He also found that the lack of protection from the 1875 Civil Rights Act would result in the violation of the Privileges and Immunities Clause of the Fourteenth amendment, largely on the same grounds ("In every material sense applicable to the practical enforcement of the fourteenth amendment, railroad corporations, keepers of inns, and managers of places of public amusements are agents of the state, because amenable, in respect of their public duties and functions, to public regulation. It seems to me that, within the principle settled in Ex parte Virginia, a denial by these instrumentalities of the state to the citizen, because of his race, of that equality of civil rights secured to him by law, is a denial by the state within the meaning of the fourteenth amendment. If it be not, then the race is left.. at the mercy of corporations and individuals wielding power under public authority... What I affirm is that no state.. nor any corporation or individual wielding power under state authority for the public benefit or the public convenience, can.. discriminate against freemen or citizens... The rights which congress, by the act of 1875, endeavored to secure and protect are legal, not social, rights.")