When the Supreme Court Removed Equality from Ordinary Public Life
Justice Harlan’s Lone Dissent and the Third Great Judicial Retreat
ANNOTATED EDITION
Reconstruction Enters Ordinary Public Life
The Civil Rights Act of 1866 had established federal citizenship and enumerated essential civil rights. The Reconstruction Amendments then altered the Constitution, while the Enforcement Acts supplied federal remedies against political obstruction and racial terror. By 1875, Congress turned to another question: whether citizenship and freedom would have practical meaning in the ordinary public life of the Republic.[1]
Congress answered through the Civil Rights Act of 1875. The statute sought to ensure equal enjoyment of inns, public conveyances, theaters, and other places of public amusement, and it prohibited racial exclusion from jury service. It was Congress’s final major civil-rights enactment of Reconstruction and an effort to carry constitutional status into daily civic experience.[2]
The Civil Rights Act of 1875
Section 1 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 and regardless of previous condition of servitude. Section 2 supplied civil and criminal remedies against those who denied that enjoyment.[3]
The Act did not reach every private association or every form of discrimination. It addressed businesses and facilities Congress regarded as serving a public function, and Section 4 separately protected qualified citizens from exclusion as grand or petit jurors on account of race, color, or previous condition of servitude.[4]
Five Cases, One Constitutional Question
The Civil Rights Cases brought five controversies together. They arose from refusals of hotel accommodations, access to a theater, and service on railroads. The defendants were charged or sued under the first two sections of the 1875 Act after Black citizens were denied equal access to facilities open to the public.[5]
The consolidated cases presented a defining question of Reconstruction: did the Thirteenth and Fourteenth Amendments authorize Congress to prohibit racial discrimination by private proprietors of public accommodations, or was congressional power limited to correcting state action and eliminating only those conditions the Court classified as slavery or its legal incidents?[6]
The Majority Constructs the State-Action Barrier
On October 15, 1883, the Supreme Court held, eight to one, that Sections 1 and 2 of the Civil Rights Act of 1875 were unconstitutional as applied within the states. Justice Joseph Bradley wrote that the Fourteenth Amendment prohibited state action rather than purely private conduct. In the majority’s view, Section 5 authorized Congress to correct or counteract unconstitutional state action, not to regulate private discrimination directly.[7]
This became a central foundation of the state-action doctrine. Congress could legislate against discriminatory state laws, officials, and governmental failures within constitutional limits, but the Fourteenth Amendment did not itself convert every private denial of equality into federal constitutional action. The majority treated the 1875 Act as primary regulation of private conduct rather than corrective legislation directed at a state violation.[8]
The Thirteenth Amendment Is Narrowed
The Court also rejected the argument that the public-accommodations provisions were authorized by the Thirteenth Amendment. The majority agreed that Congress could legislate directly against slavery and its badges and incidents because the Amendment reaches slavery wherever it exists, whether supported by public or private action.[9]
But the Court concluded that refusing admission to an inn, theater, or public conveyance did not impose slavery or involuntary servitude and was not, by itself, a badge or incident of slavery within the Amendment’s meaning. The majority therefore drew a narrow boundary around Congress’s Thirteenth Amendment power at the very moment Congress had attempted to translate emancipation into equal civil standing.[10]
A Private Wrong Without a Federal Remedy
The majority did not endorse racial discrimination as morally proper. It described the denials as individual wrongs and suggested that state law could supply remedies. Yet that classification carried immense constitutional consequences: an injury central to the social subordination of the formerly enslaved was placed beyond the 1875 Act’s federal public-accommodations remedy whenever no sufficient state action could be shown.[11]
Within this essay’s framework, that reasoning returned the freedpeople toward the same state and local systems from which Reconstruction had been designed to protect them. The rights remained proclaimed, but the national remedy was removed from an important sphere of public life. This is the third major judicial step in the Great Constitutional Drift—after Slaughter-House narrowed privileges or immunities and Cruikshank narrowed federal protection against private conspiratorial violence.[12]
The Jury-Service Protection Survives
The Court did not invalidate the whole Civil Rights Act of 1875. The cases before it concerned Sections 1 and 2, and the judgment declared those public-accommodations provisions unconstitutional. Section 4’s prohibition against racial exclusion from jury service rested on a different constitutional footing because jury selection is governmental action.[13]
That protection survived and is now reflected in 18 U.S.C. §243, which prohibits excluding an otherwise qualified citizen from federal or state jury service on account of race, color, or previous condition of servitude. The surviving provision is important: Reconstruction was gravely narrowed in 1883, but it was not legally erased in its entirety.[14]
Justice Harlan Stands Alone
Justice John Marshall Harlan was the Court’s sole dissenter. He accused the majority of sacrificing the substance and spirit of the Reconstruction Amendments through reasoning that was too narrow and artificial. For Harlan, the Amendments had to be read against the condition of the people whose enslavement and exclusion had made constitutional reconstruction necessary.[15]
Harlan argued that inns, public conveyances, and places of public amusement were not merely private social spaces. They exercised public callings, operated under governmental authority or regulation, and had long carried duties to serve the public without arbitrary exclusion. Congress could therefore protect Black citizens against racial discrimination in those settings.[16]
The Badges and Incidents of Slavery
Harlan also understood racial exclusion from public accommodations as a badge of servitude. American chattel slavery had been more than compelled labor; it was a comprehensive legal and social system that marked an entire people as inferior and denied them ordinary participation in civil society. Emancipation would remain incomplete if the old caste could be preserved through public exclusion under private ownership.[17]
Later doctrine did not simply adopt Harlan’s entire dissent, but the Supreme Court eventually recognized broader congressional authority under the Thirteenth Amendment to determine and eliminate badges and incidents of slavery. Jones v. Alfred H. Mayer Co. upheld federal legislation prohibiting private racial discrimination in property transactions and rejected part of the narrow doctrinal path that followed the Civil Rights Cases.[18]
From Judicial Decision to Jim Crow
The decision arrived after the political retreat of 1877 and during the consolidation of white-supremacist rule in the South. By removing the principal federal public-accommodations protections enacted in 1875, the Court helped create constitutional space in which segregation and exclusion could expand. The decision did not itself enact Jim Crow, and no single case caused the entire system, but it became an important part of the legal environment that permitted racial caste to harden.[19]
Thirteen years later, Plessy v. Ferguson would approve state-mandated racial separation under the doctrine of ‘separate but equal.’ The progression was not mechanically inevitable, but it was constitutionally related: Slaughter-House narrowed national citizenship, Cruikshank restricted federal protection against private violence, the Civil Rights Cases invalidated federal protection in public accommodations, and Plessy sanctioned state segregation.[20]
Congress Returns Through the Commerce Power
In 1964, Congress again prohibited racial discrimination in public accommodations. This time it relied substantially upon the Commerce Clause as well as the Fourteenth Amendment. In Heart of Atlanta Motel v. United States and Katzenbach v. McClung, the Supreme Court upheld Title II of the Civil Rights Act of 1964 as a valid regulation of interstate commerce.[21]
That achievement restored powerful federal protection, but it also revealed the lasting doctrinal consequence of 1883. Congress reached a destination associated with Reconstruction by traveling principally through a different constitutional route. The Nation finally carried equal public accommodation into federal law, nearly eighty years after the Court had removed the 1875 remedy.[22]
The Enduring Constitutional Question
The Civil Rights Cases remain controlling in their central proposition that the Fourteenth Amendment ordinarily governs state action rather than purely private conduct. Modern doctrine contains important qualifications: government involvement may transform nominally private conduct into state action, Congress may reach private conduct under other enumerated powers, and the Thirteenth Amendment can support legislation against badges and incidents of slavery.[23]
The continuing question is therefore not whether the Executive may disregard the decision. It may not. The question is whether Congress, the President, and the Department of Justice have faithfully identified and used the lawful powers that remain available to protect federal citizenship and civil equality—and whether the historical narrowing of Reconstruction has been adequately understood.[24]
Looking Toward Plessy
The Civil Rights Cases removed Reconstruction’s principal statutory protection for equal access to specified places of public life. State governments and private establishments were left with greater room to construct and enforce racial separation, while federal power was confined to narrower constitutional channels.[25]
The next judicial destination is Plessy v. Ferguson. There, the Court would move beyond limiting federal remedies and expressly approve state-imposed racial segregation. What had begun as constitutional narrowing would become judicial authorization of a caste system operating under the false promise of equality.[26]
Constitutional Questions for Executive Consideration
- Why did Congress regard equal access to public accommodations as part of Reconstruction’s civil-rights settlement?
- Did the majority interpret the Fourteenth Amendment’s state-action requirement too narrowly in light of Reconstruction’s remedial purpose?
- Was racial exclusion from public accommodations properly understood as a badge or incident of American chattel slavery?
- Why did the Act’s jury-service protection survive on a different constitutional footing?
- What did Justice Harlan understand about public callings and constitutional citizenship that the majority rejected?
- What lawful powers remain available to Congress and the Executive to address private racial discrimination?
Selected Primary Authorities
- S. Constitution, Amendments XIII and XIV
- Civil Rights Act of 1875, ch. 114, 18 Stat. 335
- The Civil Rights Cases, 109 U.S. 3 (1883)
- United States v. Cruikshank, 92 U.S. 542 (1876)
- Plessy v. Ferguson, 163 U.S. 537 (1896)
- Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968)
- Civil Rights Act of 1964, Pub. L. No. 88-352, Title II, 78 Stat. 241, 243
- Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964); Katzenbach v. McClung, 379 U.S. 294 (1964)
- 18 U.S.C. §243
[1] Civil Rights Act of 1866, ch. 31, 14 Stat. 27; U.S. Const. amends. XIII–XV; Enforcement Acts of 1870–1871, 16 Stat. 140, 16 Stat. 433, 17 Stat. 13. The series’ chronology is an organizing framework, not a claim that each measure had identical scope.
[2] Civil Rights Act of 1875, ch. 114, 18 Stat. 335. The Act was signed by President Ulysses S. Grant on March 1, 1875.
[3] Civil Rights Act of 1875 §§1–2, 18 Stat. at 335–36. Section 1 covered inns, public conveyances on land or water, theaters, and other places of public amusement, subject to like conditions for all citizens.
[4] Id. §4, 18 Stat. at 336. Section 4 protected otherwise qualified citizens from racial exclusion as grand or petit jurors; its present statutory descendant is 18 U.S.C. §243.
[5] Civil Rights Cases, 109 U.S. 3, 4–9 (1883). The consolidated matters included United States v. Stanley, United States v. Ryan, United States v. Nichols, United States v. Singleton, and Robinson v. Memphis & Charleston Railroad Co.
[6] Id. at 10–25. The Court considered congressional authority under both Section 5 of the Fourteenth Amendment and Section 2 of the Thirteenth Amendment.
[7] Id. at 10–19. Justice Bradley wrote for an eight-Justice majority; Justice Harlan dissented alone.
[8] Id. at 11–15; Congressional Research Service, Constitution Annotated, ‘State Action Doctrine’ and ‘Pre-Modern Doctrine on Enforcement Clause.’ The modern state-action inquiry contains doctrines and exceptions developed after 1883.
[9] Civil Rights Cases, 109 U.S. at 20. Unlike the Fourteenth Amendment, the Thirteenth Amendment directly prohibits slavery and involuntary servitude without requiring state action.
[10] Id. at 20–25. The majority’s narrow treatment of badges and incidents of slavery was later qualified by broader congressional authority recognized in Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968).
[11] Civil Rights Cases, 109 U.S. at 17–19, 24–25. The Court’s reference to ‘individual invasion of individual rights’ distinguished private wrongs from state action; it did not necessarily deny that states could prohibit such discrimination.
[12] ‘Great Constitutional Drift’ is the author’s interpretive term. Slaughter-House, Cruikshank, and the Civil Rights Cases addressed different texts and legal questions; the asserted progression is historical synthesis rather than a holding of any one case.
[13] Civil Rights Cases, 109 U.S. at 8–9, 25–26. The judgment concerned the first and second sections of the Act. Section 4’s jury provision was not invalidated in these cases.
[14] 18 U.S.C. §243; Alexander v. Louisiana, 405 U.S. 625, 629 n.8 (1972) (identifying §243 as derived from Section 4 of the 1875 Act). Jury selection by courts and public officers constitutes governmental action.
[15] Civil Rights Cases, 109 U.S. at 26–62 (Harlan, J., dissenting). Harlan argued that the majority’s reasoning was too narrow and artificial and sacrificed the substance and spirit of the Reconstruction Amendments.
[16] Id. at 37–43 (Harlan, J., dissenting). Harlan relied upon the public character and common-law duties of inns, public carriers, and places of public amusement.
[17] Id. at 35–36, 43–57 (Harlan, J., dissenting). ‘American chattel slavery’ identifies the historical institution under examination; ‘badge of servitude’ is used in the constitutional sense debated in the case.
[18] Jones v. Alfred H. Mayer Co., 392 U.S. 409, 437–44 (1968). Jones held that Congress may rationally determine what are badges and incidents of slavery and legislate against private racial discrimination in property transactions under the Thirteenth Amendment.
[19] Library of Congress, ‘The Civil Rights Act of 1964: A Long Struggle for Freedom—Prologue.’ The causal claim is qualified: Jim Crow resulted from many judicial, legislative, political, economic, and violent forces.
[20] Plessy v. Ferguson, 163 U.S. 537 (1896), overruled in relevant part by Brown v. Board of Education, 347 U.S. 483 (1954). The four-case sequence is the essay’s organizing synthesis; the decisions were not one continuous proceeding.
[21] Civil Rights Act of 1964, Pub. L. No. 88-352, tit. II, 78 Stat. 241, 243; Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964); Katzenbach v. McClung, 379 U.S. 294 (1964).
[22] The 1964 Act differed from the 1875 Act in coverage, remedies, constitutional grounding, and historical setting. ‘Different constitutional route’ refers principally to Congress’s reliance on the Commerce Clause as sustained in Heart of Atlanta and McClung.
[23] Congressional Research Service, Constitution Annotated, ‘State Action Doctrine’; Jones, 392 U.S. 409; U.S. Const. art. I, §8. Whether particular conduct constitutes state action is a fact-sensitive doctrinal question.
[24] U.S. Const. art. II, §3. Faithful execution requires adherence to operative statutes and controlling judgments; it does not authorize unilateral executive revision of constitutional doctrine.
[25] The decision invalidated the federal provisions at issue; it did not affirmatively require private discrimination or invalidate every possible state civil-rights law.
[26] Plessy, 163 U.S. 537. ‘False promise of equality’ is the author’s characterization of separate-but-equal doctrine in light of its history and later repudiation.