The constitutionality of the Bill was denied in 1867 by the Court of Appeals of Kentucky,[[217]] on the ground that it invaded the right of the State to regulate its own domestic concerns. But its constitutionality was upheld in two cases: United States v. Rhodes,[[218]] 1866, in the Circuit Court, a case involving the right of a Negro to testify, and In re Turner,[[219]] in the Circuit Court also, a Maryland case involving the laws of apprenticeship.
It appears that none of the cases involving the rights of Negroes in public places, which are being considered particularly in this chapter, reached the higher courts. But Mr. Flack[[220]] says: “The instances we have cited, however, are apparently sufficient to justify the conclusion that the belief prevailed generally—north, east, west and south—especially among the Negroes, that the Civil Rights Bill gave the colored people the same rights and privileges as white men as regards travel, schools, theatres, churches, and the ordinary rights which may be legally demanded. There also seems to have been a less general belief that it also permitted the intermarriage of the races.”
As interesting as it would be to trace this Bill and the subsequent Federal enactments through Congress, it would take one too far afield. He must accept the products as they came from the crucible of debate, and interpret their effect upon the rights of Negroes.
The Civil Rights Bill of 1866 was practically superseded by the first section of the Fourteenth Amendment, ratified by thirty-six States and declared operative July 28, 1868. This section reads as follows: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law, or deny to any person within its jurisdiction the equal protection of the laws.”
Mr. Flack[[221]] says that the purpose in the adoption of this Amendment was (1) to make the Bill of Rights (the first eight Amendments) binding upon the States as well as upon the Nation; (2) to give validity to the Civil Rights Bill of 1866; and (3) to declare who were citizens of the United States. As he shows by an analysis of the debates in Congress, the constitutionality of the Civil Rights Bill of 1866 was doubted by many of its able advocates, and it was natural that they should desire to make their tenets secure by incorporating them into the Constitution itself. It is worth remarking that on May 1, 1870, the Civil Rights Bill of 1866 was practically re-enacted.[[222]]
The words “Negro,” “race,” or “color” do not appear in the first section of the Fourteenth Amendment; but a study of the speeches before the House and Senate would show that the legislators had the Negro primarily in mind, and so the court understood. In the Slaughter-House Cases[[223]] of 1872, cases not having to do with the Negro in the slightest degree, Mr. Justice Miller gave an interpretation of the Fourteenth Amendment which has stood as a landmark. He said: “... on the most casual examination of the language of these Amendments [Thirteenth, Fourteenth, and Fifteenth], no one can fail to be impressed with the one pervading purpose found in them all, laying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him. It is true that only the Fifteenth Amendment, in terms, mentions the Negro by speaking of his color and his slavery. But it is just as true that each of the other articles were addressed to the grievances of that race, and designed to remedy them as the Fifteenth. We do not say that no one else but the Negro can share in their protection.... But we do say ... that in any fair and just construction of any section or phrase of these Amendments, it is necessary to look to the purpose which we have said was the pervading spirit of them all, the evil which they were designed to remedy, and the process of continued addition to the Constitution, until that purpose was supposed to be accomplished, as far as constitutional law can accomplish it.” Without further citation of authorities, it may be assumed that the primary purpose of Congress in drafting the Fourteenth Amendment was to secure and protect the rights and privileges of Negroes.
The next Federal legislation on the subject was the Civil Rights Bill[[224]] of 1875, which declared that all persons within the jurisdiction of the United States should be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theatres and other places of public amusement, subject only to the conditions established by law and applicable alike to citizens of every race and color, regardless of any previous condition of servitude. The penalty for the violation of this law was the forfeiture of five hundred dollars to the person aggrieved and a fine of not less than five hundred dollars nor more than one thousand dollars or imprisonment not less than three months nor more than one year. The District and Circuit Courts of the United States were given exclusive jurisdiction of offences against this statute. District attorneys, marshals, and deputy marshals of the United States, and commissioners appointed by the Federal courts were authorized to proceed against those violating the provisions of the act.
The years between 1865 and 1875 had witnessed changes in the attitude of Congress toward the civil rights of Negroes. The Bill of 1866 was general in its terms, yet Congress did not feel secure till the Fourteenth Amendment had been passed to give validity, in a sense, to what had already been done. Now in 1875 Congress passed a bill which far surpassed in scope anything that had theretofore been undertaken. It is surprising that the test case of its constitutionality did not reach the court of last resort before 1883. During the year of its passage, 1875, doubt was thrown upon its validity by Judge Dick in charging the grand jury of the Federal Circuit Court of North Carolina,[[225]] who said, in part: “Every man has a natural and inherent right of selecting his own associates, and this natural right cannot be properly regulated by legislative action, but must always be under the control of the individual taste or inclination.” The same year, Judge Emmons, of the Circuit Court in Tennessee,[[226]] ruled that the Fourteenth Amendment applied to State and not individual action, and that the Federal government could not require individual innkeepers, theatre managers, etc., to entertain Negroes.
The constitutionality of the Civil Rights Bill of 1875, however, was finally settled in 1883. That year five cases[[227]] reached the Supreme Court, all of which had to do with the civil rights of Negroes. Two of them concerned the rights of colored persons in inns and hotels; two, their rights in theatres; and one, in railroad cars. Mr. Justice Bradley, delivering the opinion of the court, took the ground that the first and second sections of the Civil Rights Bill were unconstitutional for these reasons: (1) They are not authorized by the Thirteenth Amendment, abolishing and prohibiting slavery, because the separation of the races in public places is not a badge of servitude. “It would be running the slavery argument into the ground,” he said, “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.” (2) The Civil Rights Bill is not authorized by the Fourteenth Amendment, because that refers to action by the State, while the Bill refers to individual discrimination. It is State action of a particular kind that is prohibited. “Individual invasion of individual rights,” he argued, “is not the subject matter of the amendment.... It nullifies and makes void all State legislation, and State action of every kind, which impairs the privileges and immunities of citizens of the United States.... It does not invest Congress with power to legislate upon subjects which are within the domain of State legislation; but to provide modes of relief against State legislation or State action.... It does not authorize Congress to create a code of municipal laws for the regulation of private rights, but to provide modes of redress against the operation of State laws, and the action of State officers, executive or judicial, when these are subversive of the fundamental rights specified in the Amendment ... until some State law has been passed, or some State action through its officers or agents has been taken, adverse to the rights of citizens sought to be protected by the Fourteenth Amendment, no legislation of the United States under said Amendment, nor any proceeding under such legislation, can be called into activity; for the prohibitions of the Amendment are against State laws and acts done under State authority.”
The effect of this decision is that the Federal government cannot prevent the curtailment of the civil rights of Negroes by individuals unless such individuals are acting under sanction of State statutes, and in that case, the Federal court can only declare that the State statute is unconstitutional.