a colored person a seat in the dress circle of
McGuire's Theatre in San Francisco; and the indictment against
Singleton was for denying to another person, whose color was not
stated, the full enjoyment of the accommodation of the theatre known
as the Grand Opera House in New York.
The argument to show the culpability of the State was that in becoming
a business man or a corporation established by sanction of and
protected by the State, such a person or persons discriminating against
a citizen of color no longer acted in a private but in a public capacity
and in so doing affected an interest in violation of the State by
controlling, as in the case of slavery, an individual's power of
locomotion. The Civil Rights Bill was appropriate legislation as
defined by the Constitution to forbid any action by private persons
which "in the light of our history may reasonably be apprehended to
tend, on account of its being incidental to quasi public occupations, to
create an institution." The act of 1875 in prohibiting persons from
violating the rights of other persons to the full and equal enjoyment of
the accommodations of inns and public conveyances, for any reason
turning merely upon the race or color of the latter, partook of the
specific character of certain contemporaneous, solemn and effective
action by the United States to which it was a sequel and is
constitutional.
Giving the opinion of the court in Civil Rights Cases,[19] Mr. Justice
Bradley said that the Fourteenth Amendment on which this act of 1875
rested for its authority, if it had any authority at all, does not invest
Congress to legislate within the domain of State legislation or in State
action of the kind referred to in the Civil Rights Act. He believed that
the Fourteenth Amendment does not authorize Congress to create a
code of municipal law for the regulation of private rights. He conceded
that positive rights and privileges are secured by the Fourteenth
Amendment but only by prohibition against State laws and State
proceedings affecting those rights.[20] "Until some State law has
passed," he said, "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 under State authority." Otherwise Congress would
take the place of State legislatures and supersede them and regulate all
private rights between man and man. Civil rights such as are
guaranteed by the Constitution against State aggression, thought Justice
Bradley, cannot be impaired by the wrongful acts of individuals
unsupported by State authority in the shape of laws, customs, or
executive proceedings, for those are private wrongs.
Justice Bradley believed, moreover, that the Civil Rights Act could not
be supported by the Thirteenth Amendment in that, unlike the
Fourteenth Amendment, the Thirteenth Amendment is primary and
direct in abolishing slavery. "When a man has emerged from slavery,"
said he, "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,
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." To eject a Negro from an inn or a
hotel, to compel him to ride in a separate car, to deny him access and
use of places maintained at public expense, according to Justice
Bradley, do not constitute imposing upon the Negroes badges and
incidents of slavery; for they are acts of individuals with which
Congress, because of the limited powers of the Federal government,
cannot have anything to do. The particular clause in the Civil Rights
Act, so far as it operated on individuals in the several States was,
therefore, held null and void, but the court held that it might apply to
the District of Columbia and territories of the United States for which
Congress might legislate directly. Since then the court has in the recent
Wright Case declared null and void even that part which it formerly
said might apply to territory governed directly by Congress, thus taking
the position tantamount to reading into the laws of the United States
and the laws of nations the segregation measures of a mediaeval
ex-slaveholding commonwealth assisted by the nation in enforcing
obedience to its will beyond the three mile limit on the high seas.
Although conceding that the Thirteenth Amendment was direct and
primary legislation, the court held that it had
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