Does the United States have the power to prevent theaters, inns, and railroads from refusing to serve Black customers?
After the Civil War, newly liberated Black citizens knew that former Confederates weren’t about to treat them as equals, and pushed hard for Congress to use its expanded powers in the new 13th and 14th Amendments to grant them access to railroads, inns, and theaters. Egged on by Black leaders including Robert Harlan, Congress finally passed a sweeping Civil Rights Act in 1875, and President Ulysses Grant signed it. It was a moment of hope that what Lincoln called “a new birth of freedom” would indeed be felt by the freed men and women. But all across the country, north and south alike, many innkeepers and ticket-takers continued to reject Black customers. When federal authorities attempted to crack down, they took their cases to the Supreme Court.
The innkeepers, railroad conductors and theater ushers claimed that Congress had overstepped its bounds in passing the 1875 Civil Rights Act. They argued that the new amendments to the Constitution gave the federal government the power only to protect formerly enslaved citizens from discrimination by a state government, not by individual businesses. The federal government argued that, in fact, the amendments were passed with the specific intention to empower Congress to enforce civil rights laws against individuals, not merely states. Despite much evidence to the contrary, most members of the Supreme Court were eager to side with Southern states, and found the white plaintiffs’ arguments to be legally compelling.
One justice – John Marshall Harlan – did not.
In a powerful dissent, he declared that eliminating racial discrimination in the basic facets of life was “the ends the people desired to accomplish, which they attempted to accomplish, and which they supposed they had accomplished by changes to their fundamental law.”
“The opinion in these cases proceeds, it seems to me, upon grounds entirely too narrow and artificial,” he wrote. “I cannot resist the conclusion that the substance and spirit of the recent amendments of the Constitution have been sacrificed by a subtle and verbal criticism.”
Harlan’s long dissenting opinion laid out an entirely different vision of the protections offered by the 13th and 14th Amendments. It went on to become a foundational text for the 20th Century civil rights movement, offering a road map to future generations to find the true meaning of the Constitution. In 1965, the Supreme Court finally gave its approval to a new civil rights law that was almost identical to the one rejected in 1883.
In the intervening 82 years, Blacks faced relentless discrimination and subversion without the protection of the federal government – pain that could have been avoided had the justices the courage to follow Harlan’s example in 1883.