The Journal of Negro History, Volume 6, 1921 | Page 9

of the
first section of the article granting citizenship." The prohibition of the

State laws could have been negatived by judicial interpretation without
the Fourteenth Amendment on the ground that they would have
conflicted with the Constitution.
The court said the Fourteenth Amendment was not intended to enact a
municipal code for the States. No one will gainsay this. This
Amendment, moreover, is not altogether for the benefit of the Negro. It
simply interferes with the local laws when they operate so as to
discriminate against persons or permit agents of the States to
discriminate against persons of any race on account of color or previous
condition of servitude. Of what benefit was it if it did not do this? The
constitutions of the several States had already secured all persons
against deprivation of life, liberty or property otherwise than by due
process of law, and in some form recognized the right of all persons to
the equal protection of the laws. If this be the correct interpretation
even, it does not follow that privileges which have been granted by the
nation, may not be protected by primary legislation upon the part of
Congress. Justice Harlan pointed out that it is for Congress not the
judiciary, to say that legislation is appropriate, for that would be sheer
usurpation of the functions of a coordinate department. Why should
these rules of interpretation be abandoned in the case of maintaining the
rights of the Negro guaranteed by the Constitution?
The Civil Rights Act of 1875 could have been maintained on the
ground that it regulated interstate passenger traffic, as one of the cases,
Robinson and Wife v. Memphis and Charleston Railroad Company,
showed that Robinson a citizen of Mississippi had purchased a ticket
entitling him to be carried from Grand Junction, Tennessee, to
Lynchburg, Virginia. This case substantially presented the question of
interstate commerce but the court reserved the question whether
Congress in the exercise of its power to regulate commerce among the
several States, might or might not pass a law regulating rights in public
conveyances passing from one State to another. The court undertook to
hide behind the fact that this specific act did not recite therein that it
was enacted in pursuance of the power of Congress to regulate
commerce. Justice Harlan, therefore, inquired: "Has it ever been held
that the judiciary should overturn a statute, because the legislative

department did not accurately recite therein the particular provision of
the constitution authorizing its enactment?" On the whole, the contrary
is the rule. It is sufficient to know that there is authority in the
Constitution.
In this decision, too, there was the influence of the much paraded
bugbear of social equality forced upon the whites. To use the inns,
hotels, and parks, established by authority of the government and the
places of amusement authorized as the necessary stimulus to progress,
to buy a railroad ticket at the same window, ride in the same
comfortable car on a limited train rather than incur the loss of time and
suffer the inconvenience of inferior accommodations on a slow local
train; to sleep and eat in a Pullman car so as to be refreshed for business
on arriving at the end of a long journey, all of this was and is today
dubbed by the reactionary courts social equality. Justice Harlan
exposed this fallacy in saying: "The right, for instance, of a colored
citizen to use the accommodations of a public highway, upon the same
terms as are permitted to white citizens, is no more a social right than
his right, under the law, to use the public streets of a city or a town, or a
turnpike road, or a public market, or a post office, or his right to sit in a
public building with others, of whatever race, for the purpose of
hearing the political questions of the day discussed."
What did the Negro become when he was freed? What was he when,
according to section 2 of Article IV of the Constitution, he became by
virtue of the Fourteenth Amendment entitled to all privileges and
immunities of citizens in the several States?[24] From what did the race
become free? If Justice Bradley had been inconveniently segregated by
common carriers, driven out of inns and hotels with the sanction of
local law, and deprived by a mob of the opportunity to make a living,
would he have considered himself a free citizen of this or any other
country? "A colored citizen of Ohio or Indiana while in the jurisdiction
of Tennessee," contended Justice Harlan, "is entitled to enjoy any
privilege or immunity, fundamental in citizenship, which is given to
citizens of the white race in the latter State. Citizenship in this country
necessarily imports at least equality of civil rights among citizens