New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1883-11-18
NATIONAL CAPITAL TOPICS.
THE CIVIL RIGHTS DECISION.
THE DISSENTING OPINION OF MIR. JUSTICE HAIR

THE DISSENTING OPINION OF MR. JIoliOb HAN
Lam.
WASHINGTON, Nov. 17.-Mr. Justice Harlan,
of the United States Supreme Court has filed with the
clerk of that his dissenting opinion IN the Cvi
Rights 1t is long and careful review not only OF
the legislation In controversy and the circumstances
which led It. but Of the arguments and positions OF the
majority of the court as set forth in the opinion Of Mr.
Justice Bradley Justice Harlan says by way OF preface
The opinion these proceeds as 1t seems 10 me-
upon grounds entirely too narrow and artificial The sub
stance and spirit Of the recent amendments of the Con-
sution have been sacrificed by subtle ana ingenious
verbal criticism Constitutional provisions adopted ID the
interest Of liberty, and for the purpose OF securing
through national legislation, II need be- rights ihene
in state Of freedom and belonging to American o|on
sh,n have heen so construed az 70 defeat the ends inc
peope desired TO accomplish which they attenp'eu !"
accomplish and which they supposed they hau "o.o
plished by changes in their fundamental Ld" ny ,
do not mean that the determination OF theoo cases sou
have been materially conroledby cohs'efauohSoi ieIo
erpedIency or policy Imean only, In this form 10 e1
80 on earnest conviction that the court has departed
from tho familiar rule requiring in the Interpretation OF
constitutional provisions that full effect be given TO the
intent with which they were adopted"
After making an argument TO show that Congress, under
the Thirteenth Amendment, may enact laws to protect
the coored people against the deprivation, account OF
their race Of any civil rights enjoyed by her reemcn
in the same state ard that such legislation may be OF
direct and primary character. operating upon States
their offices and agents. and upon such individuals
and corporations as exercise public functions
Mr. Justice Harlan says: 1T would seem
that the right OF colored person 10
use an improved public highway upon the terms accorded
to freemen Of other fundamental in the slate
Of freedom established I'm this country are any OF the
rights which my brethren concede to be 80 Tar iuda
mental as 10 be deemed the Of civil freedom
Personal liberty consists, says Blackstone, in the
power OF locOmOon OF changing situation or removing
ones person TO whatever places ones own inclination
may direct without restraint unless by due course Of
law" Bat OF what value ia this right Of locOmotion,
II IL may be cloggcd by such burdens Congress intended
by the act Of 1878 to They are burdens which
Law at the very foundation Of the institution Of slavery
1t once existed They not to be sustained, except
upon the assumption that there Is sl In this land Of
universal liberty class which may yet be Disseminated
against, even in respect OF rights OF character
so essential and so supreme that deprived OF their
enjoyment in common with others, free man is
not only branded inferior and infected but In the
competition OF life IS robbed OF some Of tho most essential
means OF EXISTENCE and all this solely because they be-
long TO particular which the nation has liberated
The general observations are applicable Ia Jews
As to places public amusement It may I've argued that
the managers OF such places have no duties 10 perform
with which the public in any legal sense concerned
but my answer TO that Is that places |
act Of s75 such established and maintained
under direct license OF the law The authority 70 estab
lish and maintain them comes from the public The |
colored race Is part OF that public Ibe local govern
wen all other races within its Juns
diction. A license from the public TO establish |
place OF public amusement imports In law equality Of
public. This must be So unless It be-whch dcny-tat
the common municipal government OF all the people may,
In the excrton OF ia powers conferred for the benefit of
all discriminate or authorize dscrimnaiinh against
In Concluding this part Of his opinion Justice Harlan
says Congress has not, in these matters, entered
the domain OF State control ana supervision. II |
simply declares IN effect thai, since tho nation
has established universal freedom this
for all time, there shall be 10 discrimination
based merely upon color, respect Of the legal
rights in the accommodations and advantages OF public
conycyances, inns, and places ~ public amusement /
am OF opinion that such discrimination h badge oi
yitudc the imposition Of which Congress may prevent
under IT. power through appropriate legislation to enforce
Justice Harlan then reviewed length the rricy-
OF the coiored race which the Fourteenth Amend
The assumption that the amendment
and state proceedings in hostility 10 IL provisions ]. I'M
authorized hy it, language The inst clause Of The first
States and subject 20 uc Jurisdiction thereof citizens
OF the United states and Of the state wherein they rde
To the colorrd race. previously liberated ctod and
granted as well citizenship Of the United states ciu-
,,o rs, tia a. i,r,,,t - No. E,c,i,,,,. a., &c.
~ ii Iitt =. among a ,lSD1 Of crrry r i nv &
state Much light j. thrown upon hs part Of the discus
sion by the Language Of this court IN reference the
il was said in United states ae Reese ~ L. - III We
held that the Fifteenth Amendment has invested
constitutional right which Is exemption from dl-crimna
ton IN the exercise Of the elective franchise, |
account Of color previous condition Of zcry
tude From this II appears hat the night oi suffrage
not necessary attribute II national citizenship but that
exemption from discrimination In the exercise that
night on account ofrace, etc. H. Thcrgh 10 vote I'm the
States comes the states but the night OF cycmptiOu
from the prohibited discrimination comes from the United
States The first has not been granted secured by the
constitution of the United States but the last been
H. then exemption from determination In respect Of
civil nehta j. new constitutional night secured by the
grant OF state citizenship 10 COOcd citizen, Uf the United
states, why may not The nation. by means it, own
legislation Of primary direct character, guard, protect
established doctrine Of this during all it, history
accepted a. vital 90 the national supremacy that
Of power 10 the state Legislatures, may by /
legislation enforce and protect any li-t derived /
from or created by the Rational Constitution
venture, with al respect for the opinion of Others. Ia
insist that the National Legislature may without trans
ccnGing the limits OF the constitution do human M
cTy and the fundamental rights OF American citizenship
lection Of slavery aud the rights Of the masters OF fugitive
slaves"
Justice Harlan then argues that the decision Of the
Court Ina every
applicable the practical enforcement OF the Four
teenth Amendment railroad corporations, keepers Of
inns aud managers Of places OF public amusement
are agents UI ihc 9ate because anendlc, IN respect
OF Their public duties aud functions, 10 public regulation
" II seems 10 me-" he says, that "a denial by hc., in
strulncncs Of the state 10 the citizen hccau.c of his
race, that equality of civil rights srcirrd hy him IN
Fourteenth Amendment. II II De not then that
race j. left. IN respect Of the clvn rights |
and individuals welding power under public aut hnrity
The nights which Congress, by the Act of Is5b |
cndcavoIcd to secure and protect legal not social
rights.
THE UNITED STATES NAVY,