The Judicial Destruction of the Civil Rights Act of 1875
From Federal Protection to the State-Action Barrier
I. The Promise of Ordinary Freedom
The constitutional transformation of Reconstruction could not end with the abolition of slavery.
Freedom had to become an ordinary reality.
A citizen might be free in name yet excluded from the inns, public conveyances, theaters, and other places through which the common life of the Nation was conducted.
Congress confronted that reality in the Civil Rights Act of 1875.
The Act declared that all persons within the jurisdiction of the United States were entitled to the full and equal enjoyment of specified public accommodations, subject only to conditions applicable alike to citizens of every race and color, regardless of previous condition of servitude.
It also addressed racial exclusion from jury service.
The law represented Congress’s continuing effort to carry the constitutional settlement of Reconstruction beyond formal status and into the ordinary experience of citizenship.
Eight years later, the Supreme Court struck down the Act’s principal public-accommodations protections.
II. Five Cases—One Constitutional Judgment
The Civil Rights Cases were not one dispute arising from one event.
They were five proceedings brought together because they raised the same constitutional question: Did Congress possess authority under the Thirteenth or Fourteenth Amendment to prohibit racial discrimination in the public accommodations covered by the 1875 Act?
The cases involved allegations concerning inns, theaters, and railroad transportation in several States.
Some were federal criminal prosecutions. One was a civil action.
Together they presented the Court with a direct test of Congress’s effort to protect Black citizens against exclusion from institutions serving the public.
On October 15, 1883, the Supreme Court announced its judgment.
Justice Joseph P. Bradley wrote for an eight-Justice majority.
Justice John Marshall Harlan dissented alone.
III. The Fourteenth Amendment and the State-Action Barrier
The majority began with the Fourteenth Amendment.
Its prohibitions are directed to the States: “No State shall.”
From those words, the Court concluded that the Amendment prohibits state action, not merely wrongful conduct by private individuals.
Congress could enact corrective legislation against unconstitutional state laws, state action, and failures properly attributable to the State.
But the Court held that Congress could not use Section 5 of the Fourteenth Amendment as a general authority to regulate purely private discrimination.
Because Sections 1 and 2 of the Civil Rights Act of 1875 operated directly upon owners and operators of public accommodations without requiring proof of unconstitutional state action, the majority held that those provisions exceeded Congress’s Fourteenth Amendment enforcement power.
This became one of the most consequential constitutional dividing lines in American civil-rights law.
Government discrimination fell within the Amendment’s prohibition.
Private discrimination, standing alone, generally did not.
IV. The Thirteenth Amendment Rejected as a Foundation
The Government also relied upon the Thirteenth Amendment.
Unlike the Fourteenth Amendment, the Thirteenth Amendment is not limited by the words “No State shall.” It abolishes slavery and involuntary servitude throughout the Nation and gives Congress power to enforce that prohibition through appropriate legislation.
The majority acknowledged that Congress could legislate against slavery and its badges and incidents, including certain forms of private conduct.
But it drew the category narrowly in the cases before it.
The Court concluded that racial discrimination in inns, public conveyances, and places of amusement did not impose slavery or involuntary servitude and did not constitute a badge or incident of slavery within the meaning it adopted.
The majority therefore rejected the Thirteenth Amendment as a constitutional foundation for the public-accommodations provisions.
A person denied a hotel room, a railroad seat, or admission to a theater because of race suffered a grave civil wrong.
But under the majority’s reasoning, that wrong was not one Congress could reach through the Reconstruction Amendments merely because it was racial discrimination by a private proprietor.
V. What the Court Actually Invalidated
The scope of the judgment must be stated precisely.
The Court held Sections 1 and 2 of the Civil Rights Act of 1875 unconstitutional.
Those were the provisions establishing equal enjoyment of designated public accommodations and providing remedies for their denial.
The Court did not decide the constitutionality of the Act’s separate jury-discrimination provision.
Jury exclusion involved state-controlled judicial administration and therefore presented the state action that the public-accommodations cases lacked.
The Civil Rights Cases should therefore not be described as invalidating every word or every subject of the 1875 Act.
The judgment was narrower in formal scope. Its historical consequences were broader.
VI. Justice Harlan’s Warning
Justice John Marshall Harlan rejected the majority’s constitutional reasoning and historical vision.
He argued that the substance and spirit of the Reconstruction Amendments were being sacrificed through an unduly narrow construction.
Harlan did not treat inns, common carriers, and places of public amusement as wholly private spaces beyond public regulation.
They performed functions affected with a public interest, operated under public authority, or carried duties historically regulated by law.
In his view, Congress could protect citizens against racial exclusion from these channels of public life as part of enforcing the freedom and citizenship secured after slavery.
Harlan also understood the Thirteenth Amendment more broadly.
Freedom from slavery, he reasoned, could not be reduced to the absence of legal ownership over the body. Congress possessed authority to remove burdens and disabilities that were relics of the slave system and that obstructed the practical freedom of the formerly enslaved race.
His dissent did not become law in 1883.
It became a constitutional warning to Posterity.
VII. When Public Service Became Private Choice
The majority described the discrimination before it as private conduct.
But the accommodations at issue were not private homes or intimate associations.
They were businesses offering transportation, shelter, and entertainment to the public.
The constitutional question was therefore not simply whether government could regulate private prejudice.
It was whether a business opening its doors to the public could exclude a class of federal citizens from equal participation, and whether Congress possessed Reconstruction authority to prevent it.
The Court answered that question against Congress under the Thirteenth and Fourteenth Amendment theories presented.
Within the framework of this series, the decision transformed the doorway of ordinary citizenship into a zone in which federal protection was sharply reduced.
The constitutional house remained.
But many of its public doors were left to the control of those who denied entry.
VIII. The Great Constitutional Drift Continues
The Civil Rights Cases did not create racial discrimination.
They did not enact Jim Crow laws.
They did not command private persons to exclude Black citizens.
But they removed the federal statutory remedy Congress had enacted against discrimination in important public accommodations.
They also reinforced a constitutional doctrine that separated state action from private action even where the two could operate together within a broader system of racial subordination.
The decision followed the narrow construction of national citizenship in the Slaughter-House Cases and the restrictions on federal prosecution in United States v. Cruikshank.
It arrived after the political retreat associated with the Compromise of 1877.
Judicial narrowing, political withdrawal, state resistance, and private exclusion increasingly reinforced one another.
Within this series, the Civil Rights Cases represent another major station in the Great Constitutional Drift.
IX. Congress Would Return
The public-accommodations guarantee struck down in 1883 did not disappear from the Nation’s constitutional conscience.
For generations, Black citizens, lawyers, organizers, churches, journalists, and civic institutions continued the struggle against exclusion and segregation.
Congress returned to public-accommodations legislation in the Civil Rights Act of 1964.
That statute rested substantially upon Congress’s power to regulate interstate commerce, as well as the Fourteenth Amendment in portions directed to state action.
In Heart of Atlanta Motel v. United States and Katzenbach v. McClung, the Supreme Court upheld the 1964 Act’s public-accommodations provisions under the Commerce Clause.
The result Congress sought in 1875 was thus restored through a different principal constitutional route more than eight decades later.
The delay remains part of the constitutional history.
X. The Continuing Question of Constitutional Stewardship
The Civil Rights Cases remain part of American constitutional law and history.
Their state-action principle continues to shape Fourteenth Amendment doctrine, although later decisions and statutes have developed multiple routes for addressing discrimination, conspiracies, property rights, commerce, and governmental participation.
This essay does not suggest that a President may disregard the Supreme Court or enforce a statute the Court has held unconstitutional.
It asks a different question.
When a judicial decision narrows one constitutional route, what lawful responsibilities remain to Congress and the Executive under other operative constitutional powers and statutes?
May constitutional stewardship require the political branches to study the original remedial purpose, identify lawful avenues left open by precedent, and preserve rather than abandon the work entrusted to them?
Justice Harlan stood alone in 1883.
His dissent reminds every generation that constitutional drift may be visible at the moment it occurs, even when the warning comes from only one seat on the Court.
The next major station would be Plessy v. Ferguson.
There, Harlan would stand alone again.
Constitutional Questions for Executive Consideration
- What constitutional authority did Congress invoke when it enacted the public-accommodations provisions of the Civil Rights Act of 1875?
- How did the Civil Rights Cases distinguish unconstitutional state action from private racial discrimination?
- Did the majority define the badges and incidents of slavery too narrowly under the Thirteenth Amendment?
- Why did Justice Harlan regard inns, common carriers, and other public accommodations as subject to federal protection rather than unrestricted private choice?
- What lawful constitutional routes remained available to Congress and the Executive after Sections 1 and 2 of the 1875 Act were invalidated?
- What does the eighty-one-year interval between the 1875 and 1964 Civil Rights Acts reveal about the consequences of constitutional narrowing and political retreat?
- As America enters its 250th year, what lessons does Harlan’s solitary dissent offer to officials charged with constitutional stewardship?
Primary Sources
- Civil Rights Act of 1875, ch. 114, 18 Stat. 335.
- The Civil Rights Cases, 109 U.S. 3 (1883).
- S. Constitution, Amendments XIII and XIV.
- The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873).
- United States v. Cruikshank, 92 U.S. 542 (1876).
- Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241.
- Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964).
- Katzenbach v. McClung, 379 U.S. 294 (1964).