"Can the act of a mere individual—the owner of the inn, or public conveyance, or place of amusement, refusing the accommodation, be justly regarded as imposing any badge of slavery or servitude upon the applicant, or only as inflicting an ordinary civil injury properly cognizable by the laws of the State, and presumably subject to redress by those laws, until the contrary appears?"
How is "the contrary to appear"? Suppose a person denied equal privileges upon the railway on account of race and color, brings suit and is defeated? And suppose the highest tribunal of the State holds that the question is of a "social" character—what then? If, to use the language of the Supreme Court, it is "an ordinary civil injury, imposing no badge of slavery or servitude," then, no Federal question is involved.
Why did not the Supreme Court tell us what may be done when "the contrary appears"? Nothing is clearer than the intention of the Supreme Court in this case—and that is, to decide that denying to a man equal accommodations at public inns on account of race or color, is not an abridgment of a privilege or immunity of a citizen of the United States, and that such person, so denied, is not in a condition of involuntary servitude, or denied the equal protection of the laws. In other words—that it is a "social question."
I have been told by one who heard the decision when it was read from the bench, that the following phrase was in the opinion:
"There are certain physiological differences of race that cannot be ignored."
That phrase is a lamp, in the light of which the whole decision should be read.
Suppose that in one of the Southern States, the negroes being in a decided majority and having entire control, had drawn the color line, had insisted that:
"There were certain physiological differences between the races that could not be ignored," and had refused to allow white people to enter their hotels, to ride in the best cars, or to occupy the aristocratic portion of a theatre; and suppose that a white man, thrust from the hotels, denied the entrance to cars, had brought his suit in the Federal Court. Does any one believe that the Supreme Court would have intimated to that man that "there is only a social question involved,—a question with which the Constitution and laws have nothing to do, and that he must depend for his remedy upon the authors of the injury"? Would a white man, under such circumstances, feel that he was in a condition of involuntary servitude? Would he feel that he was treated like an underling, like a menial, like a serf? Would he feel that he was under the protection of the laws, shielded like other men by the Constitution? Of course, the argument of color is just as strong on one side as on the other. The white man says to the black, "You are not my equal because you are black;" and the black man can with the same propriety, reply, "You are not my equal because you are white." The difference is just as great in the one case as in the other. The pretext that this question involves, in the remotest degree, a social question, is cruel, shallow, and absurd.
The Supreme Court, some time ago, held that the 4th Section of the Civil Rights Act was constitutional. That section declares that:
"No citizen possessing all other qualifications which are or maybe prescribed by law, shall be disqualified for service as grand or petit juror in any court of the United States or of any State, on account of color or previous condition of servitude."