National Republican., 1883-11-19
PRIVILEGES OF FBEEMEN.
The Harlan Dissenting Opinion in the Civil
Rights Case.
An Exhaustive Argument Bearing on the
Race Question.

On SATURDAY MT. Ju5tice Harlan, OF tho
United States supreme court, filed his dissent
ing opinion in tho civil rights cases. It is
long and careful review, not only of the legis-
lation in controversy and the circumstances
which led to it, but of the arguments and
positions of the majority of tho court, as sot
forth in the opinion of Mr.. Justice Bradley.
Justice Harlan says by way Of introduction:
"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 recent amendments Of tho 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 state of freedom, and belonging to
American citizenship, havo been so construed
rs to defeat the ends the people desired to &C.
complish, which they attempted to accom-
plish and which they supposed they had ac-
complished by changes in their fundamental
law BY this do not mean that the deter
mination of those cases should have been ma
torially controlled by considerations of mere
expedicncy or policy. l mean only, in this
form, to express an earnest conviction that
the court has departed from the familiar rule
requiring in the Interpretation of constitu-
tional 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 colored people
against the deprivation, on account of their
race, Of any civil rights enjoyed by other
freemen in the Same state, and that such
legislation may be of direct and primary
character, operating upon states, their offices
and agents, and = Hon such individuals and
corporations !. 70 sS ercise public functions
Mr ltat m arlo nttl1 hat
the right of a colored person to use an i'm
proved public highway, upon the terms ac-
corded to freemen of other races, is as funda-
mental in the state of freedom established in
this country as are any of tho rights which
my brethren concede to be so far funda-
mental as to be deemed the essence of
civil freedom. Personal liberties consists
says Blackstone, in the power of loco
motion, of changing situation, or removing
ones person to whatever places ones own in
clination may direct, without restraint, unless
by due course of law" But of what value Is
this right Of locomotion, IL it may be clogged
by such burdens as Congress intended by the
act of 1876 to remove. They are burdens
which lay at the very foundation of the in
stitution of slavery as it once existed. They
are not to be sustained, except upon tho
assumption that there is still in this land of
universal liberty a class which may yet be
Disseminated against oven in respect of
supreme that deprived of their enjoyment,
in common with others, n free man is not only
branded as one inferior and infected, but in
the competition of life, is robbed of some of the
most essential means of existence; and all
this solely because they belong TO particular
race which the nation has liberated
The same general observations are applicable
to Jews. AS to places of public amusement,
1T may be argued that tho managers of such
places have no duties to perform with which
the public are in any legal sense concerned,
but my answer to that is that places of public
amusement within the meaning of the act
OF 1875, are such as are established and main
tanned under direct license of tho law. The
authority to establish and maintain them
comes from the public. The colored race is q
part of that public. The local government
granting the license represents them as well
as ali other races within its jurisdiction.
. license from the public TO establish q place OF
public amusement imports, in law, equality
of rights at such places among all the mem
bers of that public. This, must be so, unless
it be-which j deny-that the common
municipal government of all the people may,
In the exertion of its powers, conferred for
the benefit of all, discriminate or authorize
discrimination against particular race, solely
because Of its former condition of servitude
In concluding this part of his opinion Mr.
Justice Harlan says: Congress has not, In
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 country for all time
there shall be no discrimination based merely
upon race or color, in respect of the legal
rights in the accommodations and advantages
OF public conyeyances, inns, aud places OF
public amusement 1 am of the opinion that
such discrimination is u badge of servitude
the imposition of which congress may pre-
vent under its power through appropriate
leQiSlatiOn TO nfOrcn the thirfannth H.
ment"
Mr. Justice Harlan then reviewed the
grievances of tho colored race which the
fourteenth amendment was intended to re-
dress, and says: "The assumption that the
amendment consists wholly of prohibitions
upon state laws and state proceedings in
hostility to its provisions ia unauthorized by
its language. The first clause of the first
section All persons born or naturalized in
the United States, and subject to the juris
diction thereof are citizens of tho United
States, and of the state wherein they reside,
is Of q distinctly Affirmative character. In iti
application to the colored race, previously
liberated, it created, and granted as well cit
izenship of the United States as citizenship
OF the state in which they respectively resided
"The citizenship thus acquired may be pro
tected, not alone by the judicial branch of the
government, but by congressional Legislation
of n primary direct character. Cit
zenship In this country necessarily impart'
equality Of civil rights among citizens o
every race in the same state. Much light il
thrown upon this part Of the discussion by
the language of this court in reference to thu
fifteenth amendment In United States VS.
Cruikshank it was said in United State
against Reese, 80 United States, 2l4, we helt
that the fifteenth amendment has invested
tho citizens of the United States with q new
constitutional right, which is exemption from
discrimination in the exercise Of the elective
franchise, on account of race, color, or pre-
vious condition of servitude.' From this j
appears that tho right Of suffrage Is not a
necessary attribute Of national citizenship
but that exemption from discrimination II
the exercise Of that right ON account of race
&C., is. The right to vote in tho states
comes from tho states but the right o
exemption from the prohibited discrim
ination comes from the United States. Th,
first had not been granted or secured by tn,
constitution OF the United States, but tho las
has been. = IT, then, exemption frou
discrimination, In respect of civil rights, is |
new constitutional right, secured by thu
grant of state citizenship TO colored citizens
of the United States, why may not the nation
by means of its own legislation of a primary
direct character, guard, protect, and enforc,
that rightp 1t has been the estab
lished doctrine of this court during all 1T
history accepted as vital to tho nationa
supremacy, that congress in the absence of I
positive delegation of power TO the state leg
islatures, may, by Legislation, enforce anl