constitutes the essential distinction between freedom and slavery.
We must not forget that the province and scope of the Thirteenth and
Fourteenth Amendments are different; the former simply abolished slavery;
the latter prohibited the States from abridging the privileges or
immunities of citizens of the United States; from depriving them of life,
liberty or property without due process of law, and from denying to any
the equal protection of the laws. The amendments are different and the
powers of Congress under them are different. What Congress has power to
do under one, it may not have power to do under the other. Under the
Thirteenth Amendment, it has only to do with slavery and its incidents.
Under the Fourteenth Amendment, it has power to counteract and render
nugatory all State laws and proceedings which have the effect to abridge
any of the privileges or immunities of citizens of the United States, or
to deprive them of life, liberty or property without due process of law,
or to deny to any of them the equal protection of the laws. Under the
Thirteenth Amendment, the legislation, so far as necessary or proper to
eradicate all forms and incidents of slavery and involuntary servitude,
may be direct and primary, operating upon the acts of individuals,
whether sanctioned by State legislation or not; under the Fourteenth,
as we have already shown, it must necessarily be, and can only be,
corrective in its character, addressed to counteract and afford relief
against State regulations or proceedings.
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 the State law regulation, does inflict
upon such persons any manner of servitude, or form of slavery, as those
terms are understood in this country? Many wrongs may be obnoxious to
the prohibitions of the Fourteenth Amendment which are not, in any just
sense, incidents or elements of slavery. Such, for example, would be
the taking of private property without due process of law; or allowing
persons who have committed certain crimes (horse stealing for example)
to be seized and hung by the _posse comitatus_ without regular trial;
or denying to any person, or class of persons, the right to pursue any
peaceful avocations allowed to others. What is called class legislation
would belong to this category, and would be obnoxious to the prohibitions
of the Fourteenth Amendment, but would not necessarily be so to the
Thirteenth, when not involving the idea of any subjection of one man
to another. The Thirteenth Amendment has respect not to distinctions
of race, or class, or color, but to slavery. The Fourteenth Amendment
extends its protection to races and classes, and prohibits any State
legislation which has the effect of denying to any race or class, or to
any individual, the equal protection of the laws.
Public-domain text, read in full here on John Shaqi.
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