Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1883-11-20
CIVIL RIGHTS.
Justice Harlan's Dissent from the
Supreme Court Decision.
HE DIFFERS WITH HIS COLLEAGUES.
His Opinion as Filed a Long Review Of the
Legislation in Controversy and Of
the Arguments Of Maj ajor-
ity of the Court.

cases. 1t is long and careful review, not
only Of the legislation in controversy and
the circumstances which led to it, but OF
the arguments and positions of the major
ity of the court as set forth in the opinion
of Mr.. Justice Bradley. Justice Harlan
says by way of preface: "The opinion in
these cases proceeds, as it seems to me,
upon grounds entirely too narrow and arti.
ticial. The substance and spirit of the re-
cent amendments of the Constitution have
been sacrificed by subtle and ingenious
verbal criticism. Constitutional provisions
adopted in the interest OF liberty, and for
the purpose of securing through national
legislation, If need be, rights inhering in q
state of freedom, and belonging to Ameri-
can citizenship, have been 80 construed as to
Defeat the Ends the People
desired to accomplish, which they attempt.
e. to accomplish aud which they supposed
they had accomplished by changes IN their
iundsn entsl law. By this do not mean
that the determination OF these cases should
have been materially controlled by consid
eratiops OF mere expediency or policy.
mean only, in this form, to express an earn
est conviction that the court has departed
from the familiar rule requiring, in the in.
depreciation OF constitutions! provisions,
that full effect be given To tue iutent with
which they were adopted
After making an argument to show that
Congress, under the Thirteenth amend.
ment, may enact laws to protect the colOred
people against the deprivation, on account
OF their race, OF any civil rights enjoyed by
other freenen in the same State, and that
such legislation may be Of direct and prl-
mary character, operating upon States,
tLeir offices and agents, and upon such in
diViduslS and corporations as exercise pub
lie functions, Mr. Justice Harlan says: 1T
Gcuh seem that the right OF a cOlored per-
sen 10 use an improved public highway,
upon
The Terms Accorded to Freemen OF
Oiher Races.
is as fundamental i'll the State OF freedom
established in this country as are any OF
the rights which my brethren concede to
be so lar fundamental as TO he deemed the
essence of civil freedom. Personal liberty
consists, says Blackstone, in the power OF
lOcomotion, OF changing situation, or re-
moving ones person TO whatever places
ones own inclination may direct, without
restraint, unless by due course OF law"
But Of what value is the light of loComo-
tion, if il may be clogged by such burdens
as Congress intended by the act of 1915 TO
remove? They are burdens which lay at
the very foundation of the institution OF
slavery rs il once existed. They are not
to be sustained except upon the assump
tion that there is still N this land of uni
versal liberty class which may yet be dis
Criminated against, even in respect of
- D. 30 nf oLa rcr,a ,l a
preme that, deprived OF their enjoyment,
in common with Others, free man is not
only
Sue Pa fds corps thpp5Jfar3,Pr end In festsS,
some Of the most essential means OF exist
srce; and all this solely because they be-
long 10 particular race which the nation
has / herated. The same general observa-
lions are applicable II the Jews. As to
places of public amusement il may be ar
gued that the managers of such places
have no duties to perform with which the
public are in anv l,gsl sense concerned
but nv answer 10 ttat is that places OF
public amusement. within the meaning Of
the act of 1873, are such as are established
and maintsined under direct license of the
law. The authority to establish and main
tain them comes from the public. The
cclOred race is part OF that public. The
local government granting the license rep
r5septs them as we'll as all other races
within its jurisdiction: A license from the
ruhlic to establish place Of public amuse-
n eut imports, in law, equality OF rights at
such places among all the members OF that
public. This must be so, unless 1t be
which deny-that the common municipa.
government of all the people may, in the
exertiou OF its powers, conferred for the
benefit of all, discriminate or authorize
Discrimination Against n Particular
Race,
solely because OF its former c ndition
of servitude.
In including this part of his opinion,
Justice Harlan save: Congress has not
m these matters. entered the domain of
state control and supervision. 1t simply
declares in effect that since the nation has
established universal freedom in this coun
try for all time, there shall be no discrim'
instion based merely upon race or color, In
respect of the legal iehtS in the accommo-
dations and advantages OF public convey
&nces, inns, and place OF public amuse-
ment. i am OF opinIC that such discrlm
ination is badge OF servitude, the imposi-
tion of which Congress may prevent under
its power through appropriate legislation
to enforce the Thirteenth Amendment"
Justice Harlan then reviewed az some
length the grievances of the Colored race
which the Fourteenth Amendment was IN
tended to redress, and says: Tine as5ump-
ton Il at the amendment consists wholly OF
prohibitions upon stale laws and state pro
ceedings in hostility 10 its provisions, is
unauthorized by its lsnCuage. The first
clsuSe OF the first section All persons
born or natualizsd in the United Ste:es and
subject to the jurisdiction thereof, are citi-
II ,Lo M "a q of
wherein they reside'--is of
A DistinctIy Affirmative Character.
In its application to the cnlored race, ire
viously liberated 1t created aud gran ed rs
well citizenship Of the United States a.
citizenship OF the stSte in which they re.
spec,ively resided.
The citizenship thus acquired may be
prote Cted, not alone 10y the judicial branch
Of the Government, put BY Congressional
legislation Of primary direct character.
Citizenship in this county necessarily i'm
parts equality of civil rights among CHI
zens of every race in the same state Much
light is thrown upon this part OF the dis
cussion by the language OF this court in
reference to the fifteenth amendment. In
United States VS.. Cruikshsnk ii was said,
United States agt. Reese, 80 U. s., pa. we
held that the Fifteenth Amendment has
invested the citizens of the United States
with q rev constitutional right, which is
exemption from discrimination in the eN-
ercise OF the elective franchise, on account
of race, color, or previous condition of ser
vitude From this it appears that the
right of su ffrsge is not necessary attribute
of national citizenship, but that exemp-
ton from Discrimination in the exercise Of
that right on account of race, etc. The
r;cht IN vote in the State
Comes from the States;
but the right of exemption from the pro
hibitsd discrimination comes from the
United States. The first has not been
srsnted or secured by the constitution Of
the United States, but the last has been
If, then, exemption from discrimi
nation, in respect Of civil rights, is new
constitutional right, secured by the grant
of State citizenship 10 colored citizens OF
the United States, why may not the nation
by means OF its own legislation OF print
ry direct character. guard. protect and en
force that right? Il has been the
established doctrine OF this court during all
its history, accepted rs vital to the natioasl
supremacy, that Congress, in the absence
,ost,iya SaIapafinn of to Ia >