The Works of Robert G. Ingersoll, Volume VIII. / Interviews

by Robert Green Ingersoll

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.