Less Free than I Thought

140 years ago today, October 15, 1883, the Supreme Court handed down a bad decision I don't remember learning about: it's called Civil Rights Cases, because it combined five different cases.

I learned about this today from the Equal Justice Initiative's calendar posting.

After the post-Civil War amendments to the Constitution, Congress also passed an 1875 Civil Rights Act, which outlawed racial discrimination in public accommodations: railroads, inns, public entertainments, shops. There were five different legal challenged filed under the law, and it took eight years for them to reach the Supreme Court, where they were combined into this one case.

Making the same argument that mid-20th century politicians like Barry Goldwater made and present-day ones like Rand Paul make, the 8–1 SCOTUS majority found the Equal Protection clause does not apply to private citizens who own a business or private entities. They basically didn't and don't acknowledge that there is such a thing as a Public Accommodation unless it is state-owned.

One justice dissented: John Marshall Harlan*, who laid out the basis for privately owned public accommodations:

In every material sense applicable to the practical enforcement of the fourteenth amendment, railroad corporations, keepers of inns, and managers of places of public amusement are agents of the state, because amenable, in respect of their public duties and functions, to public regulation. It seems to me that, within the principle settled in [an earlier case he cites], a denial by these instrumentalities of the state to the citizen, because of his race, of that equality of civil rights secured to him by law, is a denial by the state within the meaning of the fourteenth amendment. If it be not, then that race is left, in respect of the civil rights under discussion, practically at the mercy of corporations and individuals wielding power under public authority....

I thought that Harlan's was the legal logic underlying the post-Civil Rights era, under the 14th Amendment's Equal Protection clause, but from reading the Wikipedia page about the Civil Rights Cases decision, I learned I was incorrect. Public accommodations are now open to everyone only because of the Constitution's Commerce Clause, after the Heart of Atlanta Motel v. United States decision (1964).

So that's two different aspects of civil rights history I learned today.

It's terrible that the 14th Amendment has never been affirmed by the Supreme Court as meaning what it plainly means: that everyone in this country should be protected by equal protection under the law.

__

* Harlan also later dissented in Plessy v. Ferguson (1896), and in that dissent prophetically wrote that it would be remembered as being as bad as the Dred Scott decision.