The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-11-20
THE CIVIL-RIGHTS CASES.
Text of the Dissenting Opinion of
Mr.. Justice Harlan,
An Exhaustive Presentation of the Princi-
pies of the Civil-Rghts Law and the
Powers of Congress Under 1t

The opinion in these cases proceeds, as it
seems to me, upon grounds entirely too mar
row and artificial. The substance and spirit
OF the recentamendments of the constitution
have been sacrificed by subtle and inge-
NOUS verbal criticism. 1T 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 state of free
dom, and belonging to American citizenship,
have been so construed as to defeat the ends
the people desired to accom- plish, which they
attempted to accomplish, and which they
supposed they had accomplished by changes
in their fundamental law. By this do not
mean that the determination of these cases
should have been materially controlled by
considerations of mere expediency or policy.
| mean only, in this form, to express an
earnest conviction that the court has de-
parted from the familiar rule requiring, in
the Interpretation of constitutional provis-
ions, 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. 1879. was to prevent
race discrimination. 1t does not assume to
define the general conditions and limitations
under which inns, public conveyances, and
places of public amusement may be con-
tons and limitations, whatever they may be,
shall not be applied by way of discrimina-
ton on account of race color or previous
condition of servitude. The second section
provides penalty against any one denying,
or aiding or iAsGiting the denial, TO any eiti-
! zen that equality of right given by the first
section. except for reasons by law applicable
to citizens of every race or color and regard
| less 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 en-
titled to the full and equal enjoyment
of the accommodations, advantages,
facilities and privileges of inns, public con-
veyances and theaters; but that such enjoy
ment shall not be subject to any conditions
applicable only to citizens of particular
| race or color, or who had been in previous
condition of servitude. The effect of the
statute, the court says, is that colored citi-
zens, whether formerly slaves or not and
citizens of other races, shall have the same
accommodations and privileges in all inns,
pubic conveyances and places of amusement
as are enjoyed by white persons and vice
versa.
The court adjudges that Congress is with
out 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
Before considering the particular language
and scope of these amendments it will be
| proper to recall the relations which, prior to
| their adoption, subsisted between the nation
| al government and the institution of 81 avery,
| as indicated by the provisions of the consti-
| tuition, the legislation of Congress and the
decisions of this court. In this mode we
May obtain keys with which to open the
mind of the people and discover the thought
intended to be expressed.
In section two of article four of the con-
stitution it was provided that mo person
held to service or labor in one State under
the laws thereof, escaping into another, shall,
| in consequence of any law or regulation
| therein, be discharged from such service or
labor, but shall be delivered up on claim OF
the party to whom such service or labor be
due" Under the authority of that clause
Congress passed the fugitive slave law oil
1913, establishing the mode for the recovery
of fugitive slave, and prescribing penalty
against any person knowingly and willingly
obstructing or hindering the master, his
agent or attorney, in selling, arresting, and
recovering the fugitive, or who should res
cue the fugitive from him, or who should
harbor or conceal the slave after notice that
he was fugitive.
POWERS OF CONGRESS.
In Prigg vs. the Commonwealth of Penn.
sylvania (16 Pet, 539), this court had occa
sion to define the powers and duties of Con.
gress in reference to fugitives from labor
| Speaking by Mr.. Justice Story, the court laid
down these propositions:
That clause of the constitution comforting q
| right should not be so construed as to make il
| shed1Wy, or unsubStantial, or leave the citizen
| without remedial power adequate for its pro
| teeton, when another mode, equally acc0rdant
with the words and the sense in which they were
mil anfn md faot fha chit or
granted. That Congress ia not restricted to legls
| latiOn for the eXertiOn of Its powers expressly
| granted, but, for the protection of rights guar
| apteed by the constitution. 1t may employ
| through legislation such means, not prohibited,
| as are necessary and proper, or such as are ap-
| propriate to attain the ends proposed That the
| constitution recognized the masters 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, deliv-
stitution, the fair implication WAS that the ma
| tional government was clothed with appropriate
authority and functions to enforce 1t.
| 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 enjained the ability to perform
| it is contemplated to exist on the part of the
functIonary TO whom it is entrusted.
Again:
1t would be a strange anomaly and forced con-
strucTiOn TO suppose that the national govern
ment meant to rely for the due futilment of Its
own proper duties, and the rights which 1t in
tended 10 secure, upon State legislation, and not
upon that of the Union. fOrtori, it would be
more Objectionable to suppose that power,
which TO be the same throughout the Union.
should be confided 10 STATE sovereignty. which
could not rightfnlly act beyond it's own terrific
rial limits.
The act of 1893 was, upon these grounds,
adjudged to be constitutional exercise of
the powers of Congress.
1t is to be observed from the report of
Prigg's case that Pennsylvania by her Attor-
ney-general, pressed the argument that the
obligation to surrender fugitive slaves was on
the States and for the States, subject to the
restriction that they should not pass laws or
establish regulations liberatng such fugitives;
that the constitution did not take from the
States the right to determine the status of all
nersons within their respectiYe Jurisdictions: