Special Favorites of the Law

The Civil Rights Act of 1964 was a landmark piece of legislation that, among other things, prohibited private discrimination in so-called “public accommodations,” meaning businesses providing lodging, food, entertainment, or similar services, to the general public. The 1964 Act was a stake in the heart of the odious Jim Crow regime and paved the way for desegregation.

You might reasonably wonder though what took Congress so long, since the Fourteenth Amendment had mandated equal protection of the law for a century at that point. In fact, Congress did try to prohibit racial discrimination in public accommodations 90 years previously, with the Civil Rights Act of 1875. But in The Civil Rights Cases, the US Supreme Court struck down the 1875 Act as unconstitutional.

In those cases, Justice Bradley held for a majority of the court that neither the Thirteenth nor the Fourteenth Amendment supplied the necessary authority for Congress to prohibit private racial discrimination. The Fourteenth Amendment says that “[n]o State shall … deny to any person within its jurisdiction the equal protection of the laws” and it gives Congress power to “enforce, by appropriate legislation, the provisions of” the amendment.

But, according to Justice Bradley, “[i]t is State action of a particular character that is prohibited.” The “[i]ndividual invasion of individual rights is not the subject matter of the amendment.” Consequently, Congress’s enforcement power reaches only to “correcting the effects of such prohibited State laws and State acts, and thus to render them effectually null, void, and innocuous.”

He went on to argue that interpreting the Fourteenth Amendment to apply to private conduct would effectively give Congress general authority to legislate all the rights and duties of citizens, eviscerating the constitution’s foundational enumerated powers principle and usurping the primacy of states over matters of local concern.

Justice Bradley did acknowledge that the Thirteenth Amendment, which abolished slavery and gave Congress legislative enforcement authority to prohibit it, plainly authorized “primary and direct” federal legislation applicable to private individuals. But he concluded that private discrimination was not a “badge or incident” of slavery that Congress could prohibit under that amendment. He opined that it would be

running the slavery argument into the ground to make it apply to every act of discrimination which a person may see fit to make as to the guests he will entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theatre, or deal with in other matters of intercourse or business.

Feeling his oats, he concluded:

When a man has emerged from slavery, 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 and 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.

The indomitable Justice Harlan, in lone dissent, was having none of that noise. He found it interesting how, when the court had previously considered the supposed right of slave owners under the Fugitive Slave Clause to return of their slaves who had escaped across state lines, it had found that of course Congress was endowed by the constitution with implied authority to enact whatever legislation was necessary to vindicate the slavers’ interests. Yet now that the question was whether Congress could enforce the equality of freed persons, suddenly the court clutched its pearls and swooned at the notion that Congress would enact appropriate legislation pursuant to an express grant of authority.

So impressed were they with their own “subtle and ingenious verbal criticism,” the majority had not only missed the central purpose of the Reconstruction amendments, they were actively subverting their purpose:

Constitutional provisions, adopted in the interest of liberty and for the purpose of securing, through national legislation, if need be, rights inhering in a state of freedom and belonging to American citizenship have been so construed as to defeat the ends the people desired to accomplish, which they attempted to accomplish, and which they supposed they had accomplished by changes in their fundamental law.

Of course racial discrimination was a badge and incident of slavery under the Thirteenth Amendment, Justice Harlan argued, authorizing its prohibition by Congress, because “the institution rested wholly upon the inferiority, as a race, of those held in bondage.” And as far as “state action” was concerned, the activities in question were not at all matters of purely private association. They involved state-authorized and regulated businesses open to the general public. Permitting public accommodations to discriminate with the imprimatur of state authority obviously denied those discriminated against the privileges and immunities guaranteed to all citizens by the Fourteenth Amendment.

Justice Harlan summed up:

Today it is the colored race which is denied, by corporations and individuals wielding public authority, rights fundamental in their freedom and citizenship. At some future time, it may be that some other race will fall under the ban of race discrimination. If the constitutional amendments be enforced according to the intent with which, as I conceive, they were adopted, there cannot be, in this republic, any class of human beings in practical subjection to another class with power in the latter to dole out to the former just such privileges as they may choose to grant.

But Justice Harlan was a single voice. In due course, the court would hold in Plessy v. Ferguson that not only did the Reconstruction amendments not restrain private discrimination, they actually didn’t prevent state laws mandating discrimination (the very distinction justifying The Civil Rights Cases), so long as segregated facilities were nominally “equal.”

The court would not reverse course until 1964, when it decided Heart of Atlanta Motel v. United States.