1 State Action in the 19th Century

Fundamental rights and liberties in the early United States were normally tied to negative liberty or freedom from government constraint or restriction. One can see this in the text of the Bill of Rights, which restricts Congress from regulating speech, religious beliefs, or the press, as well as identifying criminal process rights the government must respect. Given this, it was generally understood that your rights applied to actions taken by the government, or state action, rather than those done by private actors. For example, a student at a public university might invoke the First Amendment if administrators limited their speech on the campus quad, while students at a private university could not do so.

The passage of the post-Civil War Amendments—geared at ending slavery, creating national citizenship, and protecting the civil rights of black people (and pro-Union whites)—created new questions about the scope of state action. It became quickly clear that civil rights would be threatened not only by the government but also by the acts of private individuals and businesses who maintained before and after the Civil War that black people (free or slave) did not deserve equal rights.

During debates over the ratification of the Fourteenth Amendment, for example, many of its proponents argued for expanding state action doctrine to include the concept of “state neglect,” in which a state’s refusal to protect the civil rights and liberties of its citizens was a form of action that Congress could address.

Others—including some supporters and most opponents of the Fourteenth Amendment—preferred the traditional, narrower definition of state action that did not cover private acts of discrimination. Americans had long embraced the concept of police powers–a doctrine where states had the authority to make laws to enforce social peace and order. Here, the police power doctrine interacted with a belief in white supremacy, in which black citizens were viewed as threats to peace and stability that states should regulate. Moreover, even people who favored civil or legal equality for blacks often rejected the notion of social equality or an integrated public sphere and feared federal rules that might require them to do so. All of these factors created a strong status quo bias against empowering the federal government to regulate private actors in the place of the states.

This conflict came to a head at the Supreme Court after the passage of the 1875 Civil Rights Act, which forbade racial discrimination in public accommodations (defined as businesses open to the public such as restaurants, transportation, or hotels). The law was challenged in a number of cases, primarily on the grounds that Congress lacked the constitutional authority to regulate private businesses under the Thirteenth or Fourteenth Amendments. Lower courts were divided on the law’s constitutionality, and so in 1883, the Supreme Court combined several similar cases to rule on the Act’s constitutionality, holding its antidiscrimination provisions could only be applied to state governments. Aside from serving as the cornerstone of modern state action doctrine, the decision was a severe judicial blow to Reconstruction and the post-Civil War civil rights movement, as it left enforcement of civil rights violations by private actors to state governments who often had no interest in doing so.

Civil Rights Cases

109 U.S. 3 (1883)

Facts: In response to repeated acts of discrimination against black citizens within public accommodations—or businesses that offer services to the general public, such as restaurants, taxis, and hotels—Congress passed the Civil Rights Act of 1875. Among its provisions, the Act forbade racial discrimination by “inns, public conveyances on land and water, theaters, and other places of public amusement.”

A number of litigants indicted under the law challenged it as unconstitutional, specifically arguing that Congress lacked the legal authority to regulate the conduct of private businesses. The Court combined four such cases, as well as a fifth civil lawsuit brought against a railway company, and considered the constitutionality of the public accommodations provision.

Question: Do the 13^th or 14^th amendments of the Constitution authorize Congress to regulate private actors, as opposed to acts by state officials?

Vote: No, 8-1

For the Court: Justice Bradley

Dissenting opinion: Justice Harlan

JUSTICE BRADLEY, for the Court.

… 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. The power is sought, first, in the Fourteenth Amendment …

The first section of the Fourteenth Amendment … declares that:

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.

It is State action of a particular character that is prohibited. Individual invasion of individual rights is not the subject matter of the amendment. It has a deeper and broader scope. It nullifies and makes void all State legislation, and State action of every kind, which impairs the privileges and immunities of citizens of the United States or which injures them in life, liberty or property without due process of law, or which denies to any of them the equal protection of the laws.

This is the legislative power conferred upon Congress, and this is the whole of it. It does not invest Congress with power to legislate upon subjects which are within the domain of State legislation… It does not authorize Congress to create a code of municipal law for the regulation of private rights…

… in the present case, until some State law has been passed, or some State action through its officers or agents has been taken, adverse to the rights of citizens sought to be protected by the Fourteenth Amendment, no legislation of the United States under said amendment, nor any proceeding under such legislation, can be called into activity, for the prohibitions of the amendment are against State laws and acts done under State authority.

… An inspection of the [Civil Right Act] shows that it makes no reference whatever to any supposed or apprehended violation of the Fourteenth Amendment on the part of the States… In other words, it steps into the domain of local jurisprudence, and lays down rules for the conduct of individuals in society towards each other, and imposes sanctions for the enforcement of those rules, without referring in any manner to any supposed action of the State or its authorities.

If this legislation is appropriate for enforcing the prohibitions of the amendment, it is difficult to see where it is to stop. Why may not Congress, with equal show of authority, enact a code of laws for the enforcement and vindication of all rights of life, liberty, and property? If it is supposable that the States may deprive persons of life, liberty, and property without due process of law (and the amendment itself does suppose this), why should not Congress proceed at once to prescribe due process of law for the protection of every one of these fundamental rights, in every possible case, as well as to prescribe equal privileges in inns, public conveyances, and theatres? …

In this connection, it is proper to state that civil rights, such as are guaranteed by the Constitution against State aggression, cannot be impaired by the wrongful acts of individuals, unsupported by State authority in the shape of laws, customs, or judicial or executive proceedings. The wrongful act of an individual, unsupported by any such authority, is simply a private wrong, or a crime of that individual; an invasion of the rights of the injured party, it is true, whether they affect his person, his property, or his reputation; but if not sanctioned in some way by the State, or not done under State authority, his rights remain in full force, and may presumably be vindicated by resort to the laws of the State for redress …

Of course, these remarks do not apply to those cases in which Congress is clothed with direct and plenary powers of legislation over the whole subject, accompanied with an express or implied denial of such power to the States, as in the regulation of commerce with foreign nations, among the several States, and with the Indian tribes, the coining of money, the establishment of post offices and post roads, the declaring of war, etc. In these cases, Congress has power to pass laws for regulating the subjects specified in every detail, and the conduct and transactions of individuals in respect thereof. But where a subject is not submitted to the general legislative power of Congress, but is only submitted thereto for the purpose of rendering effective some prohibition against particular State legislation or State action in reference to that subject, the power given is limited by its object, and any legislation by Congress in the matter must necessarily be corrective in its character, adapted to counteract and redress the operation of such prohibited State laws or proceedings of State officers…

But the power of Congress to adopt direct and primary, as distinguished from corrective, legislation on the subject in hand is sought, in the second place, from the Thirteenth Amendment, which abolishes slavery. This amendment declares: “that neither slavery, nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction,” and it gives Congress power to enforce the amendment by appropriate legislation…

It is true that slavery cannot exist without law, any more than property in lands and goods can exist without law, and, therefore, the Thirteenth Amendment may be regarded as nullifying all State laws which establish or uphold slavery… it is assumed that the power vested in Congress to enforce the article by appropriate legislation clothes Congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States, and, upon this assumption, it is claimed that this is sufficient authority for declaring by law that all persons shall have equal accommodations and privileges in all inns, public conveyances, and places of amusement, the argument being that the denial of such equal accommodations and privileges is, in itself, a subjection to a species of servitude within the meaning of the amendment …

But is there any similarity between such servitudes and a denial by the owner of an inn, a public conveyance, or a theatre of its accommodations and privileges to an individual, even though the denial be founded on the race or color of that individual? Where does any slavery or servitude, or badge of either, arise from such an act of denial? Whether it might not be a denial of a right which, if sanctioned by the state law, would be obnoxious to the prohibitions of the Fourteenth Amendment is another question. But what has it to do with the question of slavery?

… The only question under the present head, therefore, is whether the refusal to any persons of the accommodations of an inn or a public conveyance or a place of public amusement by an individual, and without any sanction or support from any State law or regulation, does inflict upon such persons any manner of servitude or form of slavery as those terms are understood in this country? …

After giving to these questions all the consideration which their importance demands, we are forced to the conclusion that such an act of refusal has nothing to do with slavery or involuntary servitude, and that, if it is violative of any right of the party, his redress is to be sought under the laws of the State, or, if those laws are adverse to his rights and do not protect him, his remedy will be found in the corrective legislation which Congress has adopted, or may adopt, for counteracting the effect of State laws or State action prohibited by the Fourteenth Amendment. It would be running the slavery argument into the ground to make it apply to every act of discrimination which a person may see fit to make as to the guests he will entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theatre, or deal with in other matters of intercourse or business. Innkeepers and public carriers, by the laws of all the States, so far as we are aware, are bound, to the extent of their facilities, to furnish proper accommodation to all unobjectionable persons who in good faith apply for them …

When a man has emerged from slavery, and, by the aid of beneficent legislation, has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen and ceases to be the special favorite of the laws, and when his rights as a citizen or a man are to be protected in the ordinary modes by which other men’s rights are protected… Mere discriminations on account of race or color were not regarded as badges of slavery…

On the whole, we are of opinion that no countenance of authority for the passage of the law in question can be found in either the Thirteenth or Fourteenth Amendment of the Constitution, and no other ground of authority for its passage being suggested, it must necessarily be declared void, at least so far as its operation in the several States is concerned…

JUSTICE HARLAN, dissenting.

The opinion in these cases proceeds, it seems to me, upon grounds entirely too narrow and artificial. I cannot resist the conclusion that the substance and spirit of the recent amendments of the Constitution have been sacrificed by a subtle and ingenious verbal criticism…

Constitutional provisions, adopted in the interest of liberty and for the purpose of securing, through national legislation, if need be, rights inhering in a state of freedom and belonging to American citizenship have been so construed as to defeat the ends the people desired to accomplish, which they attempted to accomplish, and which they supposed they had accomplished by changes in their fundamental law…

The court adjudges, I think erroneously, that Congress is without power, under either the Thirteenth or Fourteenth Amendment, to establish such regulations, and that the first and second sections of the statute are, in all their parts, unconstitutional and void.

… When, therefore, it was determined, by a change in the fundamental law, to uproot the institution of slavery wherever it existed in the land and to establish universal freedom, there was a fixed purpose to place the authority of Congress in the premises beyond the possibility of a doubt… But did the freedom thus established involve nothing more than exemption from actual slavery? Was nothing more intended than to forbid one man from owning another as property? Was it the purpose of the nation simply to destroy the institution, and then remit the race, theretofore held in bondage, to the several States for such protection, in their civil rights, necessarily growing out of freedom, as those States, in their discretion, might choose to provide? Were the States against whose protest the institution was destroyed to be left free, so far as national interference was concerned, to make or allow discriminations against that race, as such, in the enjoyment of those fundamental rights which, by universal concession, inhere in a state of freedom?

… That there are burdens and disabilities which constitute badges of slavery and servitude, and that the power to enforce by appropriate legislation the Thirteenth Amendment may be exerted by legislation of a direct and primary character for the eradication not simply of the institution, but of its badges and incidents, are propositions which ought to be deemed indisputable. They lie at the foundation of the Civil Rights Act of 1866…

I do not contend that the Thirteenth Amendment invests Congress with authority, by legislation, to define and regulate the entire body of the civil rights which citizens enjoy, or may enjoy, in the several States. But I hold that, since slavery… was the moving or principal cause of the adoption of that amendment, and since that institution rested wholly upon the inferiority, as a race, of those held in bondage, their freedom necessarily involved immunity from, and protection against, all discrimination against them, because of their race, in respect of such civil rights as belong to freemen of other races. Congress, therefore, under its express power to enforce that amendment by appropriate legislation, may enact laws to protect that people against the deprivation, because of their race, of any civil rights granted to other freemen in the same State…

What has been said is sufficient to show that the power of Congress under the Thirteenth Amendment is not necessarily restricted to legislation against slavery as an institution upheld by positive law, but may be exerted to the extent, at least, of protecting the liberated race against discrimination in respect of legal rights belonging to freemen where such discrimination is based upon race.

It remains now to inquire what are the legal rights of colored persons in respect of the accommodations, privileges and facilities of public conveyances, inns, and places of public amusement?

First, as to public conveyances on land and water… railroads are public highways, established by authority of the State for the public use; that they are nonetheless public highways because controlled and owned by private corporations; that it is a part of the function of government to make and maintain highways for the convenience of the public; that no matter who is the agent, or what is the agency, the function performed is that of the State …

Second, as to inns. The same general observations which have been made as to railroads are applicable to inns. The word “inn” has a technical legal signification. It means, in the act of 1875, just what it meant at common law. A mere private boarding house is not an inn, nor is its keeper subject to the responsibilities, or entitled to the privileges, of a common innkeeper:

To constitute one an innkeeper within the legal force of that term, he must keep a house of entertainment or lodging for all travelers or wayfarers who might choose to accept the same, being of good character or conduct …

Third. As to places of public amusement. It may be argued that the managers of such places have no duties to perform with which the public are, in any legal sense, concerned, or with which the public have any right to interfere, and that the exclusion of a black man from a place of public amusement on account of his race, or the denial to him on that ground of equal accommodations at such places, violates no legal right for the vindication of which he may invoke the aid of the courts. My answer is that places of public amusement, within the meaning of the act of 1875, are such as are established and maintained under direct license of the law. The authority to establish and maintain them comes from the public. The colored race is a part of that public…

Congress has not, in these matters, entered the domain of State control and supervision. It does not, as I have said, assume to prescribe the general conditions and limitations under which inns, public conveyances, and places of public amusement shall be conducted or managed. It simply declares, in effect, that, since the nation has established universal freedom in this country for all time, there shall be no discrimination, based merely upon race or color, in respect of the accommodations and advantages of public conveyances, inns, and places of public amusement…

I am of the opinion that such discrimination practised by corporations and individuals in the exercise of their public or quasi-public functions is a badge of servitude the imposition of which Congress may prevent under its power …

It remains now to consider these cases with reference to the power Congress has possessed since the adoption of the Fourteenth Amendment…

The assumption that this amendment consists wholly of prohibitions upon State laws and State proceedings in hostility to its provisions is unauthorized by its language…

But what was secured to colored citizens of the United States — as between them and their respective States — by the national grant to them of State citizenship? With what rights, privileges, or immunities did this grant invest them? There is one, if there be no other — exemption from race discrimination in respect of any civil right belonging to citizens of the white race in the same State. That, surely, is their constitutional privilege when within the jurisdiction of other States. And such must be their constitutional right in their own State, unless the recent amendments be splendid baubles thrown out to delude those who deserved fair and generous treatment at the hands of the nation…

… It was perfectly well known that the great danger to the equal enjoyment by citizens of their rights as citizens was to be apprehended not altogether from unfriendly State legislation, but from the hostile action of corporations and individuals in the States. And it is to be presumed that it was intended by that section to clothe Congress with power and authority to meet that danger…

My brethren say that, when a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen or a man are to be protected in the ordinary modes by which other men’s rights are protected. It is, I submit, scarcely just to say that the colored race has been the special favorite of the laws. The statute of 1875, now adjudged to be unconstitutional, is for the benefit of citizens of every race and color. What the nation, through Congress, has sought to accomplish in reference to that race is what had already been done in every State of the Union for the white race — to secure and protect rights belonging to them as freemen and citizens, nothing more. It was not deemed enough “to help the feeble up, but to support him after.” The one underlying purpose of congressional legislation has been to enable the black race to take the rank of mere citizens. The difficulty has been to compel a recognition of the legal right of the black race to take the rank of citizens, and to secure the enjoyment of privileges belonging, under the law, to them as a component part of the people for whose welfare and happiness government is ordained …