If either of these cases had been taken to the Supreme Court on appeal,
at that time, the Civil Rights Act of 1866 would doubtless have been
upheld by that body; yet in October, 1882, the court held by unanimous
vote that none of the latest amendments of the Constitution (the
Thirteenth, Fourteenth, and Fifteenth) did more than put prohibition on
the action of the states. No state should have slavery; no state should
make any law to abridge the privileges and immunities of citizens of the
United States; no state should deny the right of voting by reason of
race, color, or previous condition of servitude. The power of Congress
to go into the states to enforce the criminal law against individuals
had not been granted in any of these amendments. It could not be
affirmed that the second section of the Thirteenth Amendment gave power
to Congress to legislate for the states as to other matters than actual
slavery. But the Civil Rights Act applied to all the states--to those
where slavery had never existed as well as to those where it had been
recently abolished.[94]
The act which the court in October, 1882, pronounced unconstitutional
was the Anti-Ku-Klux Act of 1871. Trumbull himself spoke and voted
against that act believing it to be unconstitutional, as we shall see
later. He drew the line somewhere between the two acts. The judges
participating in the decision in the Harris case were Chief Justice
Waite and Associate Justices Miller, Bradley, Woods, Gray, Field,
Harlan, Matthews, and Blatchford.
One year later the court held that the Equal Rights Act of March 1,
1875, which gave to all persons full and equal enjoyment of
accommodations and privileges of inns, public conveyances, theatres, and
other places of public amusement, common schools and public
institutions of learning or benevolence supported in whole or in part by
general taxation, was unconstitutional. The Supreme Court still
consisted of the Justices above named.[95] It held that the Thirteenth
Amendment of the Constitution related only to slavery and its incidents
and that the Fourteenth Amendment was merely prohibitory on the states;
that is, that it did not confer additional powers upon Congress, but
merely forbade discriminating acts on the part of the states. The
opinion of the court was delivered by Justice Bradley. The only
dissenting opinion was given by Justice Harlan, of Kentucky, who held
that the Thirteenth Amendment of the Constitution was not restricted to
the prohibition of slavery, but that it conferred upon Congress the
power to make freedom effectual to the former victims of slavery. He
said:
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