March 1, 1875 – The (First) Civil Rights Act is Enacted … For a While…

On October 16, 1883, the U.S. Supreme Court, in Civil Rights Cases (109 U.S. 3), ruled 8-1 that Sections 1 and 2 of the Civil Rights Act of 1875 were unconstitutional.

Section 1 of the Civil Rights Act stipulated: “That all persons … shall be entitled to full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement subject only to the conditions and limitations established by law and applicable alike to citizens of every race and color, regardless of any previous condition of servitude.”

Section 2 provided penalties for violation of Section 1. It further held that victims of such violations could personally sue the individuals who violated Section 1.

The Court reviewed five separate complaints involving acts of discrimination by private persons or companies. In declaring the federal law unconstitutional, Chief Justice Joseph Bradley wrote: “Has Congress constitutional power to make such a law? Of course, no one will contend that the power to pass it was contained in the Constitution before the adoption of the last three amendments. …”

Justice Joseph Bradley

Justice Joseph Bradley

The Court held that Congress had only those powers specifically enumerated in the Constitution.

Justice Bradley pointed out that the Thirteenth Amendment nullified slavery. Therefore Congress has the right to enact all necessary proper laws for the obliteration and prevention of slavery. Denying persons admission to hotels, trains, or theaters does not, however, subject them to servitude. Therefore the power to pass the Civil Rights Act is not found with the Thirteenth Amendment.

Whereas the Thirteenth Amendment does give Congress the right to pass legislation regulating individual behavior (albeit in a narrow scope), the Fourteenth Amendment is merely “corrective” in its character, “addressed to counteract and afford relief [only] against State regulations or proceedings.” (The Fourteenth Amendment declares in part: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”)

Justice Bradley maintained that the Fourteenth Amendment did not grant Congress the power to protect black people from discrimination by private businesses and individuals, but only from discrimination by states.

(The third amendment to which Justice Bradley referred as having been recently enacted, i.e., the Fifteenth Amendment, relates to the right to vote and therefore was not relevant to the case.)

Justice John Marshall Harlan vigorously dissented from the opinion, arguing that hotels and amusement parks and public conveyances were public services that operated under state permission and thus were subject to public control.

It was not long after the Court’s decision striking down the act that southern states began enacting sweeping segregation legislation.

Since that time, the concept of “state action” has undergone a significant expansion. The Civil Rights Act of 1968 would be held unconstitutional by Judge Bradley’s reasoning. However, the modern Supreme Court has been much more willing to find “state action” in the acts of individuals affecting public accommodations or places. In addition, the Court has found that Congress’s power to regulate interstate commerce includes relief from discrimination affecting commerce.

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