_Question_. What do you think of Justice Harlan's dissenting
opinion in the Civil Rights case?
_Answer_. I have just read it and think it admirable in every
respect. It is unanswerable. He has given to words their natural
meaning. He has recognized the intention of the framers of the
recent amendments. There is nothing in this opinion that is
strained, insincere, or artificial. It is frank and manly. It is
solid masonry, without crack or flaw. He does not resort to legal
paint or putty, or to verbal varnish or veneer. He states the
position of his brethren of the bench with perfect fairness, and
overturns it with perfect ease. He has drawn an instructive parallel
between the decisions of the olden time, upholding the power of
Congress to deal with individuals in the interests of slavery, and
the power conferred on Congress by the recent amendments. He has
shown by the old decisions, that when a duty is enjoined upon
Congress, ability to perform it is given; that when a certain end
is required, all necessary means are granted. He also shows that
the Fugitive Slave Acts of 1793 and of 1850, rested entirely upon
the implied power of Congress to enforce a master's rights; and
that power was once implied in favor of slavery against human
rights, and implied from language shadowy, feeble and uncertain
when compared with the language of the recent amendments. He has
shown, too, that Congress exercised the utmost ingenuity in devising
laws to enforce the master's claim. Implication was held ample to
deprive a human being of his liberty, but to secure freedom, the
doctrine of implication is abandoned. As a foundation for wrong,
implication was their rock. As a foundation for right, it is now
sand. Implied power then was sufficient to enslave, while power
expressly given is now impotent to protect.
_Question_. What do you think of the use he has made of the Dred
Scott decision?
_Answer_. Well, I think he has shown conclusively that the present
decision, under the present circumstances, is far worse than the
Dred Scott decision was under the then circumstances. The Dred
Scott decision was a libel upon the best men of the Revolutionary
period. That decision asserted broadly that our forefathers regarded
the negroes as having no rights which white men were bound to
respect; that the negroes were merely merchandise, and that that
opinion was fixed and universal in the civilized portion of the
white race, and that no one thought of disputing it. Yet Franklin
contended that slavery might be abolished under the preamble of
the Constitution. Thomas Jefferson said that if the slave should
rise to cut the throat of his master, God had no attribute that
would side against the slave. Thomas Paine attacked the institution
with all the intensity and passion of his nature. John Adams
regarded the institution with horror. So did every civilized man,
South and North.
Justice Harlan shows conclusively that the Thirteenth Amendment
was adopted in the light of the Dred Scott decision; that it
overturned and destroyed, not simply the decision, but the reasoning
upon which it was based; that it proceeded upon the ground that
the colored people had rights that white men were bound to respect,
not only, but that the Nation was bound to protect. He takes the
ground that the amendment was suggested by the condition of that
race, which had been declared by the Supreme Court of the United
States to have no rights which white men were bound to respect; that
it was made to protect people whose rights had been invaded, and
whose strong arms had assisted in the overthrow of the Rebellion;
that it was made for the purpose of putting these men upon a legal
authority with white citizens.
Justice Harland also shows that while legislation of Congress to
enforce a master's right was upheld by implication, the rights of
the negro do not depend upon that doctrine; that the Thirteenth
Amendment does not rest upon implication, or upon inference; that
by its terms it places the power in Congress beyond the possibility
of a doubt--conferring the power to enforce the amendment by
appropriate legislation in express terms; and he also shows that
the Supreme Court has admitted that legislation for that purpose
may be direct and primary. Had not the power been given in express
terms, Justice Harlan contends that the sweeping declaration that
neither slavery nor involuntary servitude shall exist would by
implication confer the power. He also shows conclusively that,
under the Thirteenth Amendment, Congress has the right by appropriate
legislation to protect the colored people against the deprivation
of any right on account of their race, and that Congress is not
necessarily restricted, under the Thirteenth Amendment, to legislation
against slavery as an institution, but that power may be exerted
to the extent of protecting the race from discrimination in respect
to such rights as belong to freemen, where such discrimination is
based on race or color.
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.
Justice Harlan shows that it was the object to accomplish for the
black man what had been accomplished for the white man--that is,
to protect all their rights as free men and citizens; and that the
one underlying purpose of the amendments and of the congressional
legislation has been to clothe the black race with all the rights
of citizenship, and to compel a recognition of their rights by
citizens and States--that the object was to do away with class
tyranny, the meanest and basest form of oppression.
If Justice Harlan was wrong in his position, then, it may truthfully
be said of the three amendments that:
"The law hath bubbles as the water has,
And these are of them."
The decision of the Supreme Court denies the protection of the
Nation to the citizens of the Nation. That decision has already
borne fruit--the massacre at Danville. The protection of the Nation
having been withdrawn, the colored man was left to the mercy of
local prejudices and hatreds. He is without appeal, without redress.
The Supreme Court tells him that he must depend upon his enemies
for justice.
_Question_. You seem to agree with all that Justice Harlan has
said, and to have the greatest admiration for his opinion?
_Answer_. Yes, a man rises from reading this dissenting opinion
refreshed, invigorated, and strengthened. It is a mental and moral
tonic. It was produced after a clear head had held conference with
a good heart. It will furnish a perfectly clear plank, without
knot or wind-shake, for the next Republican platform. It is written
in good plain English, and ornamented with good sound sense. The
average man can and will understand its every word. There is no
subterfuge in it.
Each position is taken in the open field. There is no resort to
quibbles or technicalities--no hiding. Nothing is secreted in the
sleeve--no searching for blind paths--no stooping and looking for
ancient tracks, grass-grown and dim. Each argument travels the
highway--"the big road." It is logical. The facts and conclusions
agree, and fall naturally into line of battle. It is sincere and
candid--unpretentious and unanswerable. It is a grand defence of
human rights--a brave and manly plea for universal justice. It
leaves the decision of the Supreme Court without argument, without
reason, and without excuse. Such an exhibition of independence,
courage and ability has won for Justice Harlan the respect and
admiration of "both sides," and places him in the front rank of
constitutional lawyers.
--_The Inter-Ocean_, Chicago, Illinois, November 29, 1883.