JUSTICE HARLAN AND THE CIVIL RIGHTS BILL.
Question. What do you think of Justice Harlan's dissenting opinion in the Civil Rights case?
Answer. I have just read it and think it admirable in every respect. It is unanswerable. He has given to words their natural meaning. He has recognized the intention of the framers of the recent amendments. There is nothing in this opinion that is strained, insincere, or artificial. It is frank and manly. It is solid masonry, without crack or flaw. He does not resort to legal paint or putty, or to verbal varnish or veneer. He states the position of his brethren of the bench with perfect fairness, and overturns it with perfect ease. He has drawn an instructive parallel between the decisions of the olden time, upholding the power of Congress to deal with individuals in the interests of slavery, and the power conferred on Congress by the recent amendments. He has shown by the old decisions, that when a duty is enjoined upon Congress, ability to perform it is given; that when a certain end is required, all necessary means are granted. He also shows that the Fugitive Slave Acts of 1793 and of 1850, rested entirely upon the implied power of Congress to enforce a master's rights; and that power was once implied in favor of slavery against human rights, and implied from language shadowy, feeble and uncertain when compared with the language of the recent amendments. He has shown, too, that Congress exercised the utmost ingenuity in devising laws to enforce the master's claim. Implication was held ample to deprive a human being of his liberty, but to secure freedom, the doctrine of implication is abandoned. As a foundation for wrong, implication was their rock. As a foundation for right, it is now sand. Implied power then was sufficient to enslave, while power expressly given is now impotent to protect.
Question. What do you think of the use he has made of the Dred Scott decision?
Answer. Well, I think he has shown conclusively that the present decision, under the present circumstances, is far worse than the Dred Scott decision was under the then circumstances. The Dred Scott decision was a libel upon the best men of the Revolutionary period. That decision asserted broadly that our forefathers regarded the negroes as having no rights which white men were bound to respect; that the negroes were merely merchandise, and that that opinion was fixed and universal in the civilized portion of the white race, and that no one thought of disputing it. Yet Franklin contended that slavery might be abolished under the preamble of the Constitution. Thomas Jefferson said that if the slave should rise to cut the throat of his master, God had no attribute that would side against the slave. Thomas Paine attacked the institution with all the intensity and passion of his nature. John Adams regarded the institution with horror. So did every civilized man, South and North.
Justice Harlan shows conclusively that the Thirteenth Amendment was adopted in the light of the Dred Scott decision; that it overturned and destroyed, not simply the decision, but the reasoning upon which it was based; that it proceeded upon the ground that the colored people had rights that white men were bound to respect, not only, but that the Nation was bound to protect. He takes the ground that the amendment was suggested by the condition of that race, which had been declared by the Supreme Court of the United States to have no rights which white men were bound to respect; that it was made to protect people whose rights had been invaded, and whose strong arms had assisted in the overthrow of the Rebellion; that it was made for the purpose of putting these men upon a legal authority with white citizens.
Justice Harland also shows that while legislation of Congress to enforce a master's right was upheld by implication, the rights of the negro do not depend upon that doctrine; that the Thirteenth Amendment does not rest upon implication, or upon inference; that by its terms it places the power in Congress beyond the possibility of a doubt—conferring the power to enforce the amendment by appropriate legislation in express terms; and he also shows that the Supreme Court has admitted that legislation for that purpose may be direct and primary. Had not the power been given in express terms, Justice Harlan contends that the sweeping declaration that neither slavery nor involuntary servitude shall exist would by implication confer the power. He also shows conclusively that, under the Thirteenth Amendment, Congress has the right by appropriate legislation to protect the colored people against the deprivation of any right on account of their race, and that Congress is not necessarily restricted, under the Thirteenth Amendment, to legislation against slavery as an institution, but that power may be exerted to the extent of protecting the race from discrimination in respect to such rights as belong to freemen, where such discrimination is based on race or color.
If Justice Harlan is wrong the amendments are left without force and Congress without power. No purpose can be assigned for their adoption. No object can be guessed that was to be accomplished. They become words, so arranged that they sound like sense, but when examined fall meaninglessly apart. Under the decision of the Supreme Court they are Quaker cannon—cloud forts—"property" for political stage scenery—coats of mail made of bronzed paper— shields of gilded pasteboard—swords of lath.
Question. Do you wish to say anything as to the reasoning of Justice Harlan on the rights of colored people on railways, in inns and theatres?
Answer. Yes, I do. That part of the opinion is especially strong. He shows conclusively that a common carrier is in the exercise of a sort of public office and has public duties to perform, and that he cannot exonerate himself from the performance of these duties without the consent of the parties concerned. He also shows that railroads are public highways, and that the railway company is the agent of the State, and that a railway, although built by private capital, is just as public in its nature as though constructed by the State itself. He shows that the railway is devoted to public use, and subject to be controlled by the State for the public benefit, and that for these reasons the colored man has the same rights upon the railway that he has upon the public highway.
Justice Harlan shows that the same law is applicable to inns that is applicable to railways; that an inn-keeper is bound to take all travelers if he can accommodate them; that he is not to select his guests; that he has not right to say to one "you may come in," and to another "you shall not;" that every one who conducts himself in a proper manner has a right to be received. He shows conclusively that an inn-keeper is a sort of public servant; that he is in the exercise of a quasi public employment, that he is given special privileges, and charged with duties of a public character.
As to theatres, I think his argument most happy. It is this: Theatres are licensed by law. The authority to maintain them comes from the public. The colored race being a part of the public, representing the power granting the license, why should the colored people license a manager to open his doors to the white man and shut them in the face of the black man? Why should they be compelled to license that which they are not permitted to enjoy? Justice Harlan shows that Congress has the power to prevent discrimination on account of race or color on railways, at inns, and in places of public amusements, and has this power under the Thirteenth Amendment.
In discussing the Fourteenth Amendment, Justice Harlan points out that a prohibition upon a State is not a power in Congress or the National Government, but is simply a denial of power to the State; that such was the Constitution before the Fourteenth Amendment. He shows, however, that the Fourteenth Amendment presents the first instance in our history of the investiture of Congress with affirmative power by legislation to enforce an express prohibition upon the States. This is an important point. It is stated with great clearness, and defended with great force. He shows that the first clause of the first section of the Fourteenth Amendment is of a distinctly affirmative character, and that Congress would have had the power to legislate directly as to that section simply by implication, but that as to that as well as the express prohibitions upon the States, express power to legislate was given.
There is one other point made by Justice Harlan which transfixes as with a spear the decision of the Court. It is this: As soon as the Thirteenth and Fourteenth Amendments were adopted the colored citizen was entitled to the protection of section two, article four, namely: "The citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States." Now, suppose a colored citizen of Mississippi moves to Tennessee. Then, under the section last quoted, he would immediately become invested with all the privileges and immunities of a white citizen of Tennessee. Although denied these privileges and immunities in the State from which he emigrated, in the State to which he immigrates he could not be discriminated against on account of his color under the second section of the fourth article. Now, is it possible that he gets additional rights by immigration? Is it possible that the General Government is under a greater obligation to protect him in a State of which he is not a citizen than in a State of which he is a citizen? Must he leave home for protection, and after he has lived long enough in the State to which he immigrates to become a citizen there, must he again move in order to protect his rights? Must one adopt the doctrine of peripatetic protection—the doctrine that the Constitution is good only in transitu, and that when the citizen stops, the Constitution goes on and leaves him without protection?
Justice Harlan shows that Congress had the right to legislate directly while that power was only implied, but that the moment this power was conferred in express terms, then according to the Supreme Court, it was lost.
There is another splendid definition given by Justice Harlan—a line drawn as broad as the Mississippi. It is the distinction between the rights conferred by a State and rights conferred by the Nation. Admitting that many rights conferred by a State cannot be enforced directly by Congress, Justice Harlan shows that rights granted by the Nation to an individual may be protected by direct legislation. This is a distinction that should not be forgotten, and it is a definition clear and perfect.
Justice Harlan has shown that the Supreme Court failed to take into consideration the intention of the framers of the amendment; failed to see that the powers of Congress were given by express terms and did not rest upon implication; failed to see that the Thirteenth Amendment was broad enough to cover the Civil Rights Act; failed to see that under the three amendments rights and privileges were conferred by the Nation on citizens of the several States, and that these rights are under the perpetual protection of the General Government, and that for their enforcement Congress has the right to legislate directly; failed to see that all implications are now in favor of liberty instead of slavery; failed to comprehend that we have a new nation with a new foundation, with different objects, ends, and aims, for the attainment of which we use different means and have been clothed with greater powers; failed to see that the Republic changed front; failed to appreciate the real reasons for the adoption of the amendments, and failed to understand that the Civil Rights Act was passed in order that a citizen of the United States might appeal from local prejudice to national justice.
Justice Harlan shows that it was the object to accomplish for the black man what had been accomplished for the white man—that is, to protect all their rights as free men and citizens; and that the one underlying purpose of the amendments and of the congressional legislation has been to clothe the black race with all the rights of citizenship, and to compel a recognition of their rights by citizens and States—that the object was to do away with class tyranny, the meanest and basest form of oppression.
If Justice Harlan was wrong in his position, then, it may truthfully be said of the three amendments that:
"The law hath bubbles as the water has,
And these are of them."
The decision of the Supreme Court denies the protection of the Nation to the citizens of the Nation. That decision has already borne fruit—the massacre at Danville. The protection of the Nation having been withdrawn, the colored man was left to the mercy of local prejudices and hatreds. He is without appeal, without redress. The Supreme Court tells him that he must depend upon his enemies for justice.
Question. You seem to agree with all that Justice Harlan has said, and to have the greatest admiration for his opinion?
Answer. Yes, a man rises from reading this dissenting opinion refreshed, invigorated, and strengthened. It is a mental and moral tonic. It was produced after a clear head had held conference with a good heart. It will furnish a perfectly clear plank, without knot or wind-shake, for the next Republican platform. It is written in good plain English, and ornamented with good sound sense. The average man can and will understand its every word. There is no subterfuge in it.
Each position is taken in the open field. There is no resort to quibbles or technicalities—no hiding. Nothing is secreted in the sleeve—no searching for blind paths—no stooping and looking for ancient tracks, grass-grown and dim. Each argument travels the highway—"the big road." It is logical. The facts and conclusions agree, and fall naturally into line of battle. It is sincere and candid—unpretentious and unanswerable. It is a grand defence of human rights—a brave and manly plea for universal justice. It leaves the decision of the Supreme Court without argument, without reason, and without excuse. Such an exhibition of independence, courage and ability has won for Justice Harlan the respect and admiration of "both sides," and places him in the front rank of constitutional lawyers.
—The Inter-Ocean, Chicago, Illinois, November 29, 1883.