MR. JUSTICE BRENNAN delivered the opinion of the Court.
Petitioners, 12 Negro students, were convicted in a Maryland state court as a result of their participation in a "sit-in" demonstration at Hooper's restaurant in the City of Baltimore in 1960. The convictions were based on a record showing in summary that a group of 15 to 20 Negro students, including petitioners, went to Hooper's restaurant to engage in what their counsel describes as a "sit-in protest" because the restaurant would not serve Negroes. The "hostess," on orders of Mr. Hooper, the president of the corporation owning the restaurant, told them. "solely on the basis of their color," that they would
The statute under which the convictions were obtained was the Maryland criminal trespass law, § 577 of Art. 27 of the Maryland Code, 1957 edition, under which it is a misdemeanor to "enter upon or cross over the land, premises or private property of any person or persons in this State after having been duly notified by the owner or his agent not to do so." The convictions were affirmed by the Maryland Court of Appeals, 227 Md. 302, 176 A.2d 771 (1962), and we granted certiorari. 374 U.S. 805.
We do not reach the questions that have been argued under the Equal Protection and Due Process Clauses of the Fourteenth Amendment. It appears that a significant change has taken place in the applicable law of Maryland since these convictions were affirmed by the Court of Appeals. Under this Court's settled practice in such circumstances, the judgments must consequently be vacated and reversed and the case remanded so that the state court may consider the effect of the supervening change in state law.
Petitioners' convictions were affirmed by the Maryland Court of Appeals on January 9, 1962. Since that date, Maryland has enacted laws that abolish the crime of which petitioners were convicted. These laws accord petitioners a right to be served in Hooper's restaurant, and make unlawful conduct like that of Hooper's president and hostess in refusing them service because of their race. On June 8, 1962, the City of Baltimore enacted its Ordinance No. 1249, adding § 10A to Art. 14A of the
An examination of Maryland decisions indicates that under the common law of Maryland, the supervening enactment of these statutes abolishing the crime for which petitioners were convicted would cause the Maryland Court of Appeals at this time to reverse the convictions and order the indictments dismissed. For Maryland follows the universal common-law rule that when the legislature repeals a criminal statute or otherwise removes the State's condemnation from conduct that was formerly deemed criminal, this action requires the dismissal of a pending criminal proceeding charging such conduct. The rule applies to any such proceeding which, at the time of the supervening legislation, has not yet reached final disposition in the highest court authorized to review it. Thus, in Keller v. State, 12 Md. 322 (1858), the statute under which the appellant had been indicted and convicted was repealed by the legislature after the case had been argued on appeal in the Court of Appeals but before that court's decision, although the repeal was not brought to the notice of the court until after the judgment of affirmance had been announced. The appellant's subsequent motion to correct the judgment was granted, and the judgment was reversed. The court explained, id., at 325-327:
The rule has since been reaffirmed by the Maryland court on a number of occasions. Beard v. State, 74 Md. 130, 135, 21 A. 700, 702 (1891); Smith v. State, 45 Md. 49 (1876); State v. Gambrill, 115 Md. 506, 513, 81 A. 10, 12 (1911); State v. Clifton, 177 Md. 572, 574, 10 A.2d 703, 704 (1940).
The Maryland common law is not, however, the only Maryland law that is relevant to the question of the effect of the supervening enactments upon these convictions. Maryland has a general saving clause statute which in certain circumstances "saves" state convictions from the common-law effect of supervening enactments. It is thus necessary to consider the impact of that clause upon the present situation. The clause, Art. 1 Md. Code § 3 (1957), reads as follows:
Upon examination of this clause and of the relevant state case law and policy considerations, we are far from persuaded that the Maryland Court of Appeals would hold the clause to be applicable to save these convictions. By its terms, the clause does not appear to be applicable at all to the present situation. It applies only to the "repeal," "repeal and re-enactment," "revision," "amendment," or "consolidation" of any statute or part thereof. The effect wrought upon the criminal trespass statute by the supervening public accommodations laws would seem to be properly described by none of these terms. The only two that could even arguably apply are "repeal" and "amendment." But neither the city nor the state public accommodations enactment gives the slightest indication that the legislature considered itself to be "repealing" or "amending" the trespass law. Neither enactment refers in any way to the trespass law, as is characteristically done when a prior statute is being
The absence of such terms from the public accommodations laws becomes more significant when it is recognized that the effect of these enactments upon the trespass statute was quite different from that of an "amendment"
Cogent state policy considerations would seem to support such a view. The legislative policy embodied in the supervening enactments here would appear to be much more strongly opposed to that embodied in the old enactment than is usually true in the case of an "amendment" or "repeal." It would consequently seem unlikely that the legislature intended the saving clause to apply in this situation, where the result of its application would be the conviction and punishment of persons whose "crime" has been not only erased from the statute books but officially vindicated by the new enactments. A legislature that passed a public accommodations law making it unlawful to deny service on account of race probably did not desire that persons should still be prosecuted and punished for the "crime" of seeking service from a place of public accommodations which denies it on account of race. Since the language of the saving clause raises no barrier to a ruling in accordance with these policy considerations, we should hesitate long indeed before concluding that the Maryland Court of Appeals would definitely hold the saving clause applicable to save these convictions.
As a matter of Maryland law, then, the arguments supporting a conclusion that the saving clause would not apply to save these convictions seem quite substantial. It is not for us, however, to decide this question of Maryland law, or to reach a conclusion as to how the Maryland Court of Appeals would decide it. Such a course would be inconsistent with our tradition of deference to state courts on questions of state law. Nor is it for us to ignore the supervening change in state law and proceed to decide the federal constitutional questions presented by this case. To do so would be to decide questions which, because of the possibility that the state court would now reverse the convictions, are not necessarily presented for decision. Such a course would be inconsistent with our constitutional inability to render advisory opinions, and with our consequent policy of refusing to decide a federal question in a case that might be controlled by a state ground of decision. See Murdock v. Memphis, 20 Wall. 590, 634-636. To avoid these pitfalls—to let issues of state law be decided by state courts and to preserve our policy of avoiding gratuitous decisions of federal questions —we have long followed a uniform practice where a supervening event raises a question of state law pertaining to a case pending on review here. That practice is to vacate and reverse the judgment and remand the case to the state court, so that it may reconsider it in the light of the supervening change in state law.
The rule was authoritatively stated and applied in Missouri ex rel. Wabash R. Co. v. Public Service Comm'n, 273 U.S. 126, a case where the supervening event was— as it is here—enactment of new state legislation asserted to change the law under which the case had been decided
Similarly, in Patterson v. Alabama, 294 U.S. 600, Mr. Chief Justice Hughes stated the rule as follows:
The question of Maryland law raised here by the supervening enactment of the city and state public accommodations laws clearly falls within the rule requiring us to vacate and reverse the judgment and remand the case to the Maryland Court of Appeals. Indeed, we have followed this course in other situations involving a state saving clause or similar provision, where it was considerably more probable than it is here that the State would desire its judgment to stand despite the supervening change of law. In Roth v. Delano, 338 U.S. 226, the Court vacated and remanded the judgment in light of the State's supervening repeal of the applicable statute despite the presence in the repealer of a saving clause which, unlike the one here, was clearly applicable in terms. In Dorchy v. Kansas, supra, 264 U.S. 286, the supervening event was a holding by this Court that another
Except for the immaterial fact that a severability clause rather than a saving clause was involved, the holding and the operative language of the Dorchy case are precisely in point here. Indeed, the need to set aside the judgment and remand the case is even more compelling here, since the Maryland saving clause is not literally applicable to the public accommodations laws and since state policy considerations strengthen the inference that it will be held inapplicable. Here, as in Dorchy, the applicability of the clause to save the conviction "is a question of interpretation and of legislative intent," and hence it is "appropriate to leave the determination of the question to the state court." Even if the Maryland saving clause were literally applicable, the fact would remain that, as in Dorchy, the clause "provides a rule of construction which may sometimes aid in determining that intent. But it is an aid merely; not an inexorable command." The Maryland Court of Appeals has stated that the Maryland saving clause is likewise "merely an aid to interpretation." State v. Kennerly, note 4, supra, 204 Md., at 417, 104 A. 2d, at 634.
In short, this case involves not only a question of state law but an open and arguable one. This Court thus has a "duty to recognize the changed situation," Gulf, C. & S. F. R. Co. v. Dennis, supra, 224 U. S., at 507, and, by vacating and reversing the judgment and remanding the case, to give effect to the principle that "the meaning and effect of the state statute now in question are primarily for the determination of the state court." Missouri ex rel. Wabash R. Co. v. Public Service Comm'n, supra, 273 U. S., at 131.
Reversed and remanded.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE GOLDBERG concurs as respects Parts II-V, for reversing and directing dismissal of the indictment.
I reach the merits of this controversy. The issue is ripe for decision and petitioners, who have been convicted of asking for service in Hooper's restaurant, are entitled to an answer to their complaint here and now.
On this the last day of the Term, we studiously avoid decision of the basic issue of the right of public accommodation under the Fourteenth Amendment, remanding the case to the state court for reconsideration in light of an issue of state law.
This case was argued October 14 and 15, 1963—over eight months ago. The record of the case is simple, the constitutional guidelines well marked, the precedents marshalled. Though the Court is divided, the preparation of opinions laying bare the differences does not require even two months, let alone eight. Moreover, a majority reach the merits of the issue. Why then should a minority prevent a resolution of the differing views?
The laws relied on for vacating and remanding were enacted June 8, 1962, and March 29, 1963—long before oral argument. We did indeed not grant certiorari until June 10, 1963. Hence if we were really concerned with this state law question, we would have vacated and remanded for reconsideration in light of those laws on June 10, 1963. By now we would have had an answer and been able to put our decision into the mainstream of the law at this critical hour. If the parties had been concerned,
The whole Nation has to face the issue; Congress is conscientiously considering it; some municipalities have had to make it their first order of concern; law enforcement officials are deeply implicated, North as well as South; the question is at the root of demonstrations, unrest, riots, and violence in various areas. The issue in other words consumes the public attention. Yet we stand mute, avoiding decision of the basic issue by an obvious pretense.
The clash between Negro customers and white restaurant owners is clear; each group claims protection by the Constitution and tenders the Fourteenth Amendment as justification for its action. Yet we leave resolution of the conflict to others, when, if our voice were heard, the issues for the Congress and for the public would become clear and precise. The Court was created to sit in troubled times as well as in peaceful days.
There is a school of thought that our adjudication of a constitutional issue should be delayed and postponed as long as possible. That school has had many stout defenders and ingenious means have at times been used to avoid constitutional pronouncements. Yet judge-made rules, fashioned to avoid decision of constitutional questions, largely forget what Chief Justice Marshall wrote in Fletcher v. Peck, 6 Cranch 87, 137-138:
Much of our history has shown that what Marshall said of the encroachment of legislative power on the rights of the people is true also of the encroachment of the judicial branch, as where state courts use unconstitutional procedures to convict people or make criminal what is beyond the reach of the States. I think our approach here should be that of Marshall in Marbury v. Madison, 1 Cranch 137, 177-178, where the Court spoke with authority though there was an obviously easy way to avoid saying anything:
We have in this case a question that is basic to our way of life and fundamental in our constitutional scheme. No question preoccupies the country more than this one;
For these reasons I reach the merits; and I vote to reverse the judgments of conviction outright.
The issue in this case, according to those who would affirm, is whether a person's "personal prejudices" may dictate the way in which he uses his property and whether he can enlist the aid of the State to enforce those "personal prejudices." With all respect, that is not the real issue. The corporation that owns this restaurant did not refuse service to these Negroes because "it" did not like Negroes. The reason "it" refused service was because "it" thought "it" could make more money by running a segregated restaurant.
In the instant case, G. Carroll Hooper, president of the corporate chain owning the restaurant here involved, testified concerning the episode that gave rise to these convictions. The reasons were wholly commercial ones:
Here, as in most of the sit-in cases before us, the refusal of service did not reflect "personal prejudices" but business reasons.
I leave those questions to another part of this opinion
I now assume that the issue is the one stated by those who would affirm. The case in that posture deals with a relic of slavery—an institution that has cast a long shadow across the land, resulting today in a second-class citizenship in this area of public accommodations.
Prior to those Amendments, Negroes were segregated and disallowed the use of public accommodations except and unless the owners chose to serve them. To affirm these judgments would remit those Negroes to their old status and allow the States to keep them there by the force of their police and their judiciary.
We deal here with public accommodations—with the right of people to eat and travel as they like and to use facilities whose only claim to existence is serving the public. What the President said in his State of the Union Message on January 8, 1964, states the constitutional right of all Americans, regardless of race or color, to be treated equally by all branches of government:
The Black Codes were a substitute for slavery; segregation was a substitute for the Black Codes;
The Fourteenth Amendment says "No State shall make or enforce any law which shall abridge the privileges or
We deal here with incidents of national citizenship. As stated in the Slaughter-House Cases, 16 Wall. 36, 71-72, concerning the federal rights resting on the Thirteenth, Fourteenth, and Fifteenth Amendments:
There has been a judicial reluctance to expand the content of national citizenship beyond racial discrimination, voting rights, the right to travel, safe custody in the hands of a federal marshal, diplomatic protection abroad, and the like. See Slaughter-House Cases, supra; Logan v. United States, 144 U.S. 263; United States v. Classic, 313 U.S. 299; Edwards v. California, 314 U.S. 160; Kent v. Dulles, 357 U.S. 116. The reluctance has been due to a fear of creating constitutional refuges for a host of rights historically subject to regulation. See Madden v. Kentucky, 309 U.S. 83, over-ruling Colgate v. Harvey, 296 U.S. 404. But those fears have no relevance here, where we deal with Amendments whose dominant purpose was to guarantee the freedom of the slave race and establish a regime where national citizenship has only one class.
The manner in which the right to be served in places of public accommodations is an incident of national citizenship and of the right to travel is summarized in H. R. Rep. No. 914, Pt. 2, 88th Cong., 1st Sess., pp. 7-8:
As stated in the first part of the same Report, p. 18:
As stated in Ex parte Virginia, 100 U.S. 339, 344-345, where a federal indictment against a state judge for discriminating against Negroes in the selection of jurors was upheld:
The problem in this case, and in the other sit-in cases before us, is presented as though it involved the situation of "a private operator conducting his own business on his own premises and exercising his own judgment"
The property involved is not, however, a man's home or his yard or even his fields. Private property is involved, but it is property that is serving the public. As my Brother GOLDBERG says, it is a "civil" right, not a "social" right, with which we deal. Here it is a restaurant refusing service to a Negro. But so far as principle and law are concerned it might just as well be a hospital refusing
The problem with which we deal has no relation to opening or closing the door of one's home. The home of course is the essence of privacy, in no way dedicated to public use, in no way extending an invitation to the public. Some businesses, like the classical country store where the owner lives overhead or in the rear, make the store an extension, so to speak, of the home. But such is not this case. The facts of these sit-in cases have little resemblance to any institution of property which we customarily associate with privacy.
Joseph H. Choate, who argued the Income Tax Cases (Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429, 534), said:
Charles A. Beard had the theory that the Constitution was "an economic document drawn with superb skill by men whose property interests were immediately at stake." An Economic Interpretation of the Constitution of the United States (1939), p. 188. That school of thought would receive new impetus from an affirmance of these judgments. Seldom have modern cases (cf. the illstarred Dred Scott decision, 19 How. 393) so exalted property in suppression of individual rights. We would
There is no specific provision in the Constitution which protects rights of privacy and enables restaurant owners to refuse service to Negroes. The word "property" is, indeed, not often used in the Constitution, though as a matter of experience and practice we are committed to free enterprise. The Fifth Amendment makes it possible to take "private property" for public use only on payment of "just compensation." The ban on quartering soldiers in any home in time of peace, laid down by the Third Amendment, is one aspect of the right of privacy. The Fourth Amendment in its restrictions on searches and seizures also sets an aura of privacy around private interests. And the Due Process Clauses of the Fifth and Fourteenth Amendments lay down the command that no person shall be deprived "of life, liberty, or property, without due process of law." (Italics added.) From these provisions those who would affirm find emanations that lead them to the conclusion that the private owner of a restaurant serving the public can pick and choose whom he will serve and restrict his dining room to whites only.
Apartheid, however, is barred by the common law as respects innkeepers and common carriers. There were, to be sure, criminal statutes that regulated the common callings. But the civil remedies were made by judges who had no written constitution. We, on the other hand, live under a constitution that proclaims equal protection under the law. Why then, even in the absence of a statute, should apartheid be given constitutional sanction in the restaurant field? That was the question I asked in Lombard v. Louisiana, 373 U.S. 267. I repeat it here. Constitutionally speaking, why should Hooper Food Co., Inc.,
The debates on the Fourteenth Amendment show, as my Brother GOLDBERG points out, that one of its purposes was to grant the Negro "the rights and guarantees of the good old common law." Post, at 294. The duty of common carriers to carry all, regardless of race, creed, or color, was in part the product of the inventive genius of judges. See Lombard v. Louisiana, 373 U. S., at 275-277. We should make that body of law the common law of the Thirteenth and Fourteenth Amendments so to speak. Restaurants in the modern setting are as essential to travelers as inns and carriers.
Are they not as much affected with a public interest? Is the right of a person to eat less basic than his right to travel, which we protected in Edwards v. California, 314 U.S. 160? Does not a right to travel in modern times shrink in value materially when there is no accompanying right to eat in public places?
The right of any person to travel interstate irrespective of race, creed, or color is protected by the Constitution. Edwards v. California, supra. Certainly his right to travel intrastate is as basic. Certainly his right to eat at public restaurants is as important in the modern setting as the right of mobility. In these times that right is, indeed, practically indispensable to travel either interstate or intrastate.
The requirement of equal protection, like the guarantee of privileges and immunities of citizenship, is a constitutional command directed to each State.
State judicial action is as clearly "state" action as state administrative action. Indeed, we held in Shelley v. Kraemer, 334 U.S. 1, 20, that "State action, as that
That case involved suits in state courts to enforce restrictive covenants in deeds of residential property whereby the owner agreed that it should not be used or occupied by any person except a Caucasian. There was no state statute regulating the matter. That is, the State had not authorized by legislative enactment the use of restrictive covenants in residential property transactions; nor was there any administrative regulation of the matter. Only the courts of the State were involved. We held without dissent in an opinion written by Chief Justice Vinson that there was nonetheless state action within the meaning of the Fourteenth Amendment:
At the time of the Shelley case there was to be sure a Congressional Civil Rights Act that guaranteed all citizens the same right to purchase and sell property "as is enjoyed by white citizens." Id., at 11. But the existence of that statutory right, like the existence of a right under
Maryland's action against these Negroes was as authoritative as any case where the State in one way or another puts its full force behind a policy. The policy here was segregation in places of public accommodation; and Maryland enforced that policy with her police, her prosecutors, and her courts.
The owners of the residential property in Shelley v. Kraemer were concerned, as was the corporate owner of this Maryland restaurant, over a possible decrease in the value of the property if Negroes were allowed to enter. It was testified in Shelley v. Kraemer that white purchasers got better bank loans than Negro purchasers:
In McGhee v. Sipes, a companion case to Shelley v. Kraemer, a realtor testified:
While the purpose of the restrictive covenant is in part to protect the commercial values in a "closed" community (see Hundley v. Gorewitz, 77 U. S. App. D. C. 48, 132 F.2d 23, 24), it at times involves more. The sale to a Negro may bring a higher price than a sale to a white. See Swain v. Maxwell, 355 Mo. 448, 454, 196 S.W.2d 780, 785. Yet the resistance to having a Negro as a neighbor is often strong. All-white or all-Caucasian residential communities are often preferred by the owners.
This witness added:
The preferences involved in Shelley v. Kraemer and its companion cases were far more personal than the motivations of the corporate managers in the present case when they declined service to Negroes. Why should we refuse to let state courts enforce apartheid in residential areas of our cities but let state courts enforce apartheid in restaurants? If a court decree is state action in one case, it is in the other. Property rights, so heavily underscored, are equally involved in each case.
The customer in a restaurant is transitory; he comes and may never return. The colored family who buys the house next door is there for keeps—night and day. If "personal prejudices" are not to be the criterion in one case they should not be in the other. We should put these restaurant cases in line with Shelley v. Kraemer, holding that what the Fourteenth Amendment requires in restrictive covenant cases it also requires from restaurants.
I would reverse these judgments of conviction outright, as these Negroes in asking for service in Hooper's restaurant were only demanding what was their constitutional right.
APPENDIX I TO OPINION OF MR. JUSTICE DOUGLAS.
In the sit-in cases involving eating places last Term and this Term, practically all restaurant or lunch counter owners whose constitutional rights were vindicated below are corporations. Only two out of the 20 before us are noncorporate, as Appendix III shows. Some of these corporations are small, privately owned affairs. Others are large, national or regional businesses with many stockholders:
S. H. Kress & Co., operating 272 stores in 30 States, its stock being listed on the New York Stock Exchange; McCrory Corporation, with 1,307 stores, its stock being listed on the New York Stock Exchange; J. J. Newberry Co., with 567 stores of which 371 serve food, its stock being listed on the New York Stock Exchange; F. W. Woolworth Co., with 2,130 stores, its stock also being listed on the New York Stock Exchange; Eckerd Drugs, having 17 stores with its stock traded over-the-counter. F. W. Woolworth has over 90,000 stockholders; J. J. Newberry about 8,000; McCrory over 24,000; S. H. Kress over 8,000; Eckerd Drugs about 1,000.
Those living in the Washington, D. C., metropolitan area know that it is true in that area—the hotels are incorporated; Howard Johnson Co., listed on the New York Stock Exchange, has 650 restaurants and over 15,000 stockholders; Hot Shoppes, Inc., has 4,900 stockholders; Thompson Co. (involved in District of Columbia v. Thompson Co., 346 U.S. 100) has 50 restaurants in this country with over 1,000 stockholders and its stock is listed on the New York Stock Exchange; Peoples Drug Stores, with a New York Stock Exchange listing, has nearly 5,000 stockholders. See Moody's Industrial Manual (1963 ed.).
All the sit-in cases involve a contest in a criminal trial between Negroes who sought service and state prosecutors and state judges who enforced trespass laws against them. The corporate beneficiaries of these convictions, those whose constitutional rights were vindicated by these convictions, are not parties to these suits. The beneficiary in the present case was Hooper Food Co., Inc., a Maryland corporation; and as seen in Appendix IV, "eating places" in Maryland owned by corporations, though not a fourth in number of those owned by individuals or partnerships, do nearly as much business as the other two combined.
So far as the corporate owner is concerned, what constitutional right is vindicated? It is said that ownership of property carries the right to use it in association with such people as the owner chooses. The corporate owners in these cases—the stockholders—are unidentified members of the public at large, who probably never saw these petitioners, who may never have frequented
Who, in this situation, is the corporation? Whose racial prejudices are reflected in "its" decision to refuse service to Negroes? The racial prejudices of the manager? Of the stockholders? Of the board of directors?
The Court in Santa Clara Country v. Southern Pacific R. Co., 118 U.S. 394, interrupted counsel on oral argument to say, "The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of opinion that it does." 118 U. S., at 396. Later the Court held that corporations are "persons" within the meaning of the Due Process Clause of the Fourteenth Amendment. Minneapolis R. Co. v. Beckwith, 129 U.S. 26, 28. While that view is the law today, it prevailed only over dissenting opinions. See the dissent of MR. JUSTICE BLACK in Connecticut General Co. v. Johnson, 303 U.S. 77, 85; and my dissent in Wheeling Steel Corp. v. Glander, 337 U.S. 562, 576. MR. JUSTICE BLACK said of that doctrine and its influence:
We deal here, we are told, with personal rights—the rights pertaining to property. One need not share his home with one he dislikes. One need not allow another to put his foot upon his private domain for any reason he desires—whether bigoted or enlightened. In the simple agricultural economy that Jefferson extolled, the conflicts posed were highly personal. But how is a "personal" right infringed when a corporate chain store, for example, is forced to open its lunch counters to people of all races? How can that so-called right be elevated to a constitutional level? How is that corporate right more "personal" than the right against self-incrimination?
The revolutionary change effected by an affirmance in these sit-in cases would be much more damaging to an open and free society than what the Court did when it gave the corporation the sword and the shield of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Affirmance finds in the Constitution a corporate right to refuse service to anyone "it" chooses and to get the State to put people in jail who defy "its" will.
Affirmance would make corporate management the arbiter of one of the deepest conflicts in our society: corporate management could then enlist the aid of state police, state prosecutors, and state courts to force apartheid on the community they served, if apartheid best suited the corporate need; or, if its profits would be better served by lowering the barriers of segregation, it could do so.
Veblen, while not writing directly about corporate management and the racial issue, saw the danger of leaving fundamental, governmental decisions to the managers or absentee owners of our corporate enterprises:
The point is that corporate motives in the retail field relate to corporate profits, corporate prestige, and corporate public relations.
The corporate owners of a restaurant, like the corporate owners of streetcars, buses, telephones, and electric light and gas facilities, are interested in balance sheets and in profit and loss statements. "It" does not stand at the door turning Negroes aside because of "its" feelings of antipathy to black-skinned people. "It" does not have any associational rights comparable to the classic individual store owner at a country crossroads whose store, in the dichotomy of an Adam Smith, was indeed no different from his home. "It" has been greatly transformed, as Berle and Means, The Modern Corporation and Private Property (1932), made clear a generation ago; and "it" has also transformed our economy. Separation of power
By like token the separation of the atom of "property" into one unit of "management" and into another of "absentee ownership" has in other ways basically changed the relationship of that "property" to the public.
A corporation may exclude Negroes if "it" thinks "it" can make more money doing so. "It" may go along with community prejudices when the profit and loss statement will benefit; "it" is unlikely to go against the current of community prejudice when profits are endangered.
By this standard the bus company could refuse service to Negroes if "it" felt "its" profits would increase once apartheid were allowed in the transportation field.
In the instant case, G. Carroll Hooper, president of the corporate chain owning the restaurant here involved, testified concerning the episode that gave rise to these convictions. His reasons were wholly commercial ones, as we have already seen.
APPENDIX II TO OPINION OF MR. JUSTICE DOUGLAS.
A. In Green v. Virginia, post, p. 550, the purpose or reason for not serving Negroes was ruled to be immaterial to the issues in the case.
B. In the following cases, the testimony of corporate officers shows that the reason was either a commercial one or, which amounts to the same thing, that service to Negroes was not in accord with local custom:
1. Bouie v. City of Columbia, post, p. 347.
Dr. Guy Malone, the manager of the Columbia branch of Eckerd Drugs of Florida, Inc., testified:
"Q. Mr. Malone, is the public generally invited to do business with Eckerd's?
"A. Yes, I would say so.
"Q. Does that mean all of the public of all races?
"Q. Are Negroes welcome to do business with Eckerd's?
"Q. Are Negroes welcome to do business at the lunch counter at Eckerd's?
"A. Well, we have never served Negroes at the lunch counter department.
"Q. According to the present policy of Eckerd's, the lunch counter is closed to members of the Negro public?
"A. I would say yes.
"Q. Mr. Malone, on the occasion of the arrest of these young men, what were they doing in your store, if you know?
"A. Well, it was four of them came in. Two of them went back and sat down at the first booth and started reading books, and they sat there for about fifteen minutes. Of course, we had had a group about a week prior to that, of about fifty, who came into the store.
"Mr. Perry: Your Honor, I ask, of course, that the prior incident be stricken from the record. That is not responsive to the question which has been asked, and is not pertinent to the matter of the guilt or innocence of these young men.
"The Court: All right, strike it.
"Mr. Sholenberger: Your Honor, this is their own witness.
"Mr. Perry: We announced at the outset that Mr. Malone would, in a sense, be a hostile witness.
"Q. And so, when a person comes into Eckerd's and seats himself at a place where food is ordinarily served, what is the practice of your employees in that regard?
"A. Well, it's to take their order.
"Q. Did anyone seek to take the orders of these young men?
"A. No, they did not.
"Q. Why did they not do so?
"A. Because we didn't want to serve them.
"Q. Why did you not want to serve them?
"A. I don't think I have to answer that.
"Q. Did you refuse to serve them because they were Negroes?
"Q. You did say, however, that Eckerd's has the policy of not serving Negroes in the lunch counter section?
"A. I would say that all stores do the same thing.
"Q. We're speaking specifically of Eckerd's?
"Q. Did you or any of your employees, Mr. Malone, approach these defendants and take their order for food?
2. Robinson v. Florida, ante, p. 153.
A Vice President of Shell's City, Inc., testified:
"Q. Why did you refuse to serve these defendants?
"A. Because I feel, definitely, it is very detrimental to our business to do so.
"Q. What do you mean `detrimental'?
"A. Detrimental because it would mean a loss of business to us to serve mixed groups."
Another Vice President of Shell's City, Inc., testified:
"Q. You have several departments in your store, do you not?
"A. Yes. Nineteen, I believe. Maybe twenty.
"Q. Negroes are invited to participate and make purchases in eighteen of these departments?
"A. Yes, sir.
"Q. Can you distinguish between your feeling that it is not detrimental to have them served in eighteen departments and it is detrimental to have them served in the nineteenth department, namely, the lunch counter?
"A. Well, it goes back to what is the custom, that is, the tradition of what is basically observed in Dade County would be the bottom of it. We have—
"Q. Would you tell me what this custom is, that you are making reference to, that would prevent you from serving Negroes at your lunch counter?
"Q. Was that the sole reason, the sole basis, for your feeling that this was detrimental to your business?
"A. Well, that is the foundation of it, yes, but we feel that at this time if we went into a thing of trying to break that barrier, we might have racial trouble, which we don't want. We have lots of good friends among colored people and will have when this case is over.
"Q. Are you familiar with the fact that the Woolworth Stores in this community have eliminated this practice?
"Mr. Goshgarian: To which the State objects. It is irrelevant and immaterial.
"The Court: The objection is sustained."
3. Fox v. North Carolina, post, p. 587.
Mr. Claude M. Breeden, the manager of the McCrory branch in Raleigh, testified:
"I just don't serve colored. I don't have the facilities for serving colored. Explaining why I don't serve colored. I don't have the facilities for serving colored. I have the standard short order lunch, but I don't serve colored. I don't serve colored because I don't have the facilities for serving colored.
"COUNSEL FOR DEFENDANT: What facilities would be necessary for serving colored?
"SOLICITOR FOR STATE: Objection.
"The COURT: Sustained.
"WITNESS CONTINUES: It is not the policy of my store to discriminate and not serve Negroes. We have no policy against discrimination. I do not discriminate and it is not the custom in the Raleigh Store to discriminate. I do not have the facilities for serving colored and that is why I don't serve colored."
Mr. Albert C. Watts, the manager of the S. H. Kress & Co. outlet in Charleston, testified:
"Q. . . . What type of business is Kress's?
"A. Five and Ten Cent variety store.
"Q. Could you tell us briefly something about what commodities it sells—does it sell just about every type of commodity that one might find in this type establishment?
"A. Strictly variety store merchandise—no appliances or anything like that.
"Q. I see. Kress, I believe it invites members of the public generally into its premises to do business, does it not?
"Q. It invites Negroes in to do business, also?
"Q. Are Negroes served in all of the departments of Kress's except your lunch counter?
"A. We observe local custom.
"Q. In Charleston, South Carolina, the store that you manage, sir, does Kress's serve Negroes at the lunch counter?
"A. No. It is not a local custom.
"Q. To your knowledge, does the other like businesses serve Negroes at their lunch counters? What might happen at Woolworth's or some of the others?
"A. They observe local custom—I say they wouldn't.
"Q. Then you know of your own knowledge that they do not serve Negroes? Are you speaking of other business such as your business?
"A. I can only speak in our field, yes.
"Q. In your field, so that the other stores in your field do not serve Negroes at their lunch counters?
"A. Yes, sir."
Mr. H. C. Whiteaker, the manager of McCrory's in Rock Hill, testified:
"Q. All right. Now, how many departments do you have in your store?
"A. Around twenty.
"Q. Around twenty departments?
"A. Yes, sir.
"Q. All right, sir, is one of these departments considered a lunch counter or establishment where food is served?
"A. Yes, sir. That is a separate department.
"Q. Now, I believe, is it true that you invite members of the public to come into your store?
"A. Yes, it is for the public.
"Q. And is it true, too, that the public to you means everybody, various races, religions, nationalities?
"A. Yes, sir.
"Q. The policy of your store as manager is not to exclude anybody from coming in and buying these three thousand items on account of race, nationality or religion, is that right?
"A. The only place where there has been exception, where there is an exception, is at our lunch counter.
"Q. Oh, I see. Is that a written policy you get from headquarters in New York?
"A. No, sir.
"Q. It is not. You don't have any memorandum in your store that says that is a policy?
"A. No, sir.
"Q. Is it true, then, that if, that, well, even if a man was quiet enough, and a Communist, that he could sit at your lunch counter and eat, according to the policy of your store right now? Whether you knew he was a Communist
"Q. Now, sir, you said that there was a policy there as to Negroes sitting. Am I to understand that you do serve Negroes or Americans who are Negroes, standing up?
"A. To take out, at the end of the counter, we serve take-outs, yes, sir.
"Q. In other words, you have a lunch counter at the end of your store?
"A. No, I said at the end, they can wait and get a package or a meal or order a coke or hamburger and take it out.
"Q. Oh, to take out. They don't normally eat it on the premises?
"A. They might, but usually it is to take out.
"Q. Of course, you probably have some Negro employees in your store, in some capacity, don't you?
"A. Yes, sir.
"Q. They eat on the premises, is that right?
"A. Yes, sir.
"Q. But not at the lunch counter?
"A. No, sir.
"Q. Oh, I see, but generally speaking, you consider the American Negro as part of the general public, is that right, just generally speaking?
"A. Yes, sir.
"Q. You don't have any objections for him spending any amount of money he wants to on these 3,000 items, do you?
"A. That's up to him to spend if he wants to spend.
"Q. This is a custom, as I understand it, this is a custom instead of a law that causes you not to want him to ask for service at the lunch counter?
C. The testimony in the following cases is less definitive with respect to why Negroes were refused service.
In Griffin v. Maryland, ante, p. 130, the president of the corporations which own and operate Glen Echo Amusement Park said he would admit Chinese, Filipinos, Indians and, generally, anyone but Negroes. He did not elaborate, beyond stating that a private property owner has the right to make such a choice.
In Barr v. City of Columbia, ante, p. 146, the co-owner and manager of the Taylor Street Pharmacy said Negroes could purchase in other departments of his store and that whether for business or personal reasons, he felt he had a right to refuse service to anyone.
In Williams v. North Carolina, post, p. 548, the president of Jones Drug Company said Negroes were not permitted to take seats at the lunch counter. He did say, however, that Negroes could purchase food and eat it on the premises so long as they stood some distance from the lunch counter, such as near the back door.
In Lupper v. Arkansas, 377 U.S. 989, and Harris v. Virginia, post, p. 552, the record discloses only that the establishment did not serve Negroes.
APPENDIX III TO OPINION OF MR. JUSTICE DOUGLAS.
2. Eckerd Drugs of Florida, Inc.
3. George's Drug Stores, Inc.
4. Gwynn Oak Park, Inc.
5. Hooper Food Company, Inc.
6. Howard Johnson Co.
7. Jones Drug Company, Inc.
9. S. H. Kress & Company.
10. Loveman's Department Store (food concession operated by Price Candy Company of Kansas City).
11. McCrory Corporation.
12. National White Tower System, Incorporated.
14. Patterson Drug Co.
15. Pizitz's Department Store.
16. Shell's City, Inc.
17. Thalhimer Bros., Inc., Department Store.
18. F. W. Woolworth Company.
APPENDIX IV TO OPINION OF MR. JUSTICE DOUGLAS.
Legal form of organization—by kind of business.
Reference: United States Census of Business, 1958. Vol. I.
Retail trade—Summary Statistics (1961).
A. UNITED STATES. Establishments Sales Eating places: (number) ($1,000) Total .............................. 229,238 $11,037,644 Individual proprietorships .............. 166,003 5,202,308 Partnerships ............................ 37,756 2,062,830 Corporations ............................ 25,184 3,723,295 Cooperatives ............................ 231 13,359 Other legal forms ....................... 64 35,852 Drugstores with fountain: Total .............................. 24,093 $3,535,637 Individual proprietorships............... 13,549 1,294,737 Partnerships ............................ 4,368 602,014 Corporations ............................ 6,140 1,633,998 Cooperatives ............................ 9 (withheld) Other legal forms ....................... 27 Do. Proprietary stores with fountain: Total ............................. 2,601 132,518 Individual proprietorships............... 1,968 85,988 Partnerships ............................ 446 (withheld) Corporations ............................ 185 21,090 Cooperatives ............................ ....... ............ Other legal forms ....................... 2 (withheld) Department stores: Total ............................... 3,157 13,359,467 Individual proprietorships............... 19 (withheld) Partnerships ............................ 64 85,273 Corporations ............................ 3,073 13,245,916 Cooperatives ............................ 1 (withheld) Other legal forms ....................... ....... ...........
B. STATE OF MARYLAND. *Establishments Sales Eating places: (number) ($1,000) Total ..................... 3,223 175,546 Individual proprietorships ....... 2,109 72,816 Partnerships ..................... 456 30,386 Corporations ..................... 628 71,397 Other legal forms ................ 30 947 Drugstores, proprietary stores: Total ...................... 832 139,943 Individual proprietorships........ 454 42,753 Partnership ...................... 139 (withheld) Corporations ..................... 235 76,403 Other legal forms ................ 4 (withheld) Department stores: Total ...................... 43 247,872 Individual proprietorships........ ...... ........... Partnerships ..................... ...... ........... Corporations ..................... 43 247,872 Other legal forms ................ ...... ............ * A division into stores with or without fountains, furnished for the United States, is not furnished for individual States.
[For Appendix V to opinion of DOUGLAS, J., see p. 284.]
APPENDIX V TO OPINION OF MR. JUSTICE DOUGLAS.
STATE ANTIDISCRIMINATION LAWS. (As of March 18, 1964.)
(PREPARED BY THE UNITED STATES COMMISSION ON CIVIL RIGHTS.)
Privately owned public accommodations Private Private Private Private State employment housing schools hospitals Alaska_ _ _ _ _ _ _ _
1 1959 1 1959 1962_ _ _ _ 2 1962California_ _ _ _ _ _ 1897 1959 1963_ _ _ _ 2 1959Colorado_ _ _ _ _ _ _ 1885 1957 1959_ _ _ _ _ _ _ _ Connecticut _ _ _ _ _ 1884 1947 1959_ _ _ _ 2 1953Delaware_ _ _ _ _ _ _ 1963 1960_ _ _ _ _ _ _ _ _ _ _ _ Hawaii_ _ _ _ _ _ _ _ _ _ _ _ 1963_ _ _ _ _ _ _ _ _ _ _ _ Idaho_ _ _ _ _ _ _ _ 1961 1961 _ _ _ _ _ _ _ _ _ _ _ _ Illinois_ _ _ _ _ _ _ 1885 1961_ _ _ _ 31963 41927 Indiana_ _ _ _ _ _ _ _ 1885 1945_ _ _ _ _ _ _ _ 2 1963Iowa_ _ _ _ _ _ _ _ _ _ 1884 1963 _ _ _ _ _ _ _ _ _ _ _ _ Kansas_ _ _ _ _ _ _ _ _ 1874 1961_ _ _ _ _ _ _ _ _ _ _ _ Kentucky 5_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Maine_ _ _ _ _ _ _ _ _ _ 1959 _ _ _ _ _ _ _ _ _ _ _ _ 21959 Maryland 6_ _ _ _ _ _ 1963_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Massachusetts_ _ _ _ _ _ 1865 1946 1959 1949 1953Michigan 7_ _ _ _ _ _ 1885 1955_ _ _ _ _ _ _ _ _ _ _ _ Minnesota_ _ _ _ _ _ _ _ 1885 1955 1961_ _ _ _ 2 1943Missouri_ _ _ _ _ _ _ _ _ _ _ _ _ 1961_ _ _ _ _ _ _ _ _ _ _ _ Montana_ _ _ _ _ _ _ _ _ 1955 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Nebraska_ _ _ _ _ _ _ _ _ 1885 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ New Hampshire_ _ _ _ _ _ _ 1961 _ _ _ _ 1961 _ _ _ _ 21961 New Jersey_ _ _ _ _ _ _ _ _ 1884 1945 1961 1945 1951New Mexico_ _ _ _ _ _ _ _ _ 1955 1949_ _ _ _ _ _ _ _ 1957 New York_ _ _ _ _ _ _ _ _ _ 1874 1945 1961 1945 1945North Dakota_ _ _ _ _ _ _ _ 1961 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Ohio_ _ _ _ _ _ _ _ _ _ _ _ 1884 1959_ _ _ _ _ _ _ _ 2 1961Oregon_ _ _ _ _ _ _ _ _ _ _ 1953 1949 8 1959 9 1951 2 1961Pennsylvania_ _ _ _ _ _ _ _ 1887 1955 1961 1939 1939Rhode Island_ _ _ _ _ _ _ _ 1885 1949_ _ _ _ _ _ _ _ 2 1957South Dakota_ _ _ _ _ _ _ _ 1963 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Vermont_ _ _ _ _ _ _ _ _ _ 1957 1963 _ _ _ _ _ _ _ _ 21957 Washington 10_ _ _ _ _ _ 1890 1949_ _ _ _ 1957 2 1957Wisconsin_ _ _ _ _ _ _ _ _ 1895 1957_ _ _ _ _ _ _ _ _ _ _ _ Wyoming_ _ _ _ _ _ _ _ _ _ 1961 _ _ _ _ _ _ _ _ _ _ _ _ 21961 1. Alaska was admitted to the Union in 1959 with these laws on its books. 2. Hospitals are not enumerated in the law; however, a reasonable interpretation of the broad language contained in the public accommodations law could include various health facilities. 3. The law appears to be limited to business schools. 4. Hospitals where operations (surgical) are performed are required to render emergency or first aid to any applicant if the accident or injury complained of could cause death or severe injury. 5. In 1963, the Governor issued an executive order requiring all executive departments and agencies whose functions relate to the supervising or licensing of persons or organizations doing business to take all lawful action necessary to prevent racial or religious discrimination. 6. In 1963, the law exempted 11 counties; in 1964, the coverage was extended to include all of the counties. See ante, p. 229, n. 1. 7. See 1963 Mich. Atty. Gen. opinion holding that the State Commission on Civil Rights has plenary authority in housing. 8. The statute does not cover housing per se but it prohibits persons engaged in the business from discriminating. 9. The statute relates to vocational, professional, and trade schools. 10. In 1962, a Washington lower court held that a real estate broker is within the public accommodations law.
[For concurring opinion of GOLDBERG, J., see p. 286.]
I join in the opinion and the judgment of the Court and would therefore have no occasion under ordinary circumstances to express my views on the underlying constitutional issue. Since, however, the dissent at length discusses this constitutional issue and reaches a conclusion with which I profoundly disagree, I am impelled to state the reasons for my conviction that the Constitution guarantees to all Americans the right to be treated as equal members of the community with respect to public accommodations.
The Declaration of Independence states the American creed: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." This ideal was not fully achieved with the adoption of our Constitution because of the hard and tragic reality of Negro slavery. The Constitution of the new Nation, while heralding liberty, in effect declared all men to be free and equal—except black men who were to be neither free nor equal. This inconsistency reflected a fundamental departure from the American creed, a departure which it took a tragic civil war to set right. With the adoption, however, of the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution, freedom and equality were guaranteed expressly to all regardless "of race, color, or previous condition of servitude."
The dissent argues that the Constitution permits American citizens to be denied access to places of public accommodation solely because of their race or color. Such a view does not do justice to a Constitution which
The Thirteenth, Fourteenth and Fifteenth Amendments do not permit Negroes to be considered as second-class citizens in any aspect of our public life. Under our Constitution distinctions sanctioned by law between citizens because of race, ancestry, color or religion "are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality." Hirabayashi v. United States, 320 U.S. 81, 100. We make no racial distinctions between citizens in exacting from them the discharge of public responsibilities: The heaviest duties of citizenship—military service, taxation, obedience to laws—are imposed evenhandedly upon black and white. States may and do impose the burdens of state citizenship upon Negroes and the States in many ways benefit from the equal imposition of the duties of federal citizenship. Our fundamental law which insures such an equality of public burdens, in my view, similarly insures an equality of public benefits. This Court has repeatedly recognized and applied this fundamental principle to many aspects of community life.
Of course our constitutional duty is "to construe, not to rewrite or amend, the Constitution." Post, at 342 (dissenting opinion of MR. JUSTICE BLACK). Our sworn duty to construe the Constitution requires, however, that
In 1873, in one of the earliest cases interpreting the Thirteenth and Fourteenth Amendments, this Court observed:
A few years later, in 1880, the Court had occasion to observe that these Amendments were written and adopted "to raise the colored race from that condition of inferiority and servitude in which most of them had previously stood, into perfect equality of civil rights with all other persons within the jurisdiction of the States." Ex parte Virginia, 100 U.S. 339, 344-345. In that same Term, the Court in Strauder v. West Virginia, 100 U.S. 303, 307, stated that the recently adopted Fourteenth Amendment must "be construed liberally, to carry out the purposes of its framers." Such opinions immediately following the adoption of the Amendments clearly reflect the contemporary understanding that they were "to secure to the colored race, thereby invested with the rights, privileges, and responsibilities of citizenship, the enjoyment of all the civil rights that, under the law, are enjoyed by white persons . . . ." Neal v. Delaware, 103 U.S. 370, 386.
The subject of segregation in public conveyances and accommodations was quite familiar to the Framers of the Fourteenth Amendment.
In Strauder v. West Virginia, supra, this Court had occasion to consider the concept of civil rights embodied in the Fourteenth Amendment:
The Fourteenth Amendment was in part designed to provide a firm constitutional basis for the Civil Rights Act of 1866, 14 Stat. 27, and to place that legislation beyond the power of congressional repeal.
In the debates that culminated in the acceptance of the Fourteenth Amendment, the theme of granting "civil," as distinguished from "social," rights constantly recurred.
An 1873 decision of the Supreme Court of Iowa clearly reflects the contemporary understanding of the meaning of the Civil Rights Act of 1866. In Coger v. North West. Union Packet Co., 37 Iowa 145, a colored woman sought damages for assault and battery occurring when the officers of a Mississippi River steamboat ordered that she be removed from a dining table in accordance with a practice of segregation in the main dining room on the boat. In giving judgment for the plaintiff, the Iowa Supreme Court quoted the Civil Rights Act of 1866 and concluded that:
The Court then went on to reject the contention that the rights asserted were "social, and . . . not, therefore, secured by the constitution and statutes, either of the State or of the United States." Id., at 157.
Underlying the congressional discussions, and at the heart of the Fourteenth Amendment's guarantee of equal protection, was the assumption that the State by statute or by "the good old common law" was obligated to guarantee all citizens access to places of public accommodation. This obligation was firmly rooted in ancient
It was in this vein that the Supreme Court of Mississippi spoke when in 1873 it applied the equal accommodations
In a similar manner, Senator Sumner, discussing the Civil Rights Act of 1875, referred to and quoted from Holingshed, Story, Kent and Parsons on the common-law duties of innkeepers and common carriers to treat all alike. Cong. Globe, 42d Cong., 2d Sess., 382-383. With regard to "theaters and places of public amusement," the Senator observed that:
The first sentence of § 1 of the Fourteenth Amendment, the spirit of which pervades all the Civil War Amendments,
The court then emphasized that in light of this constitutional principle the same result would follow whether the claim rested on a statute or on the common law:
Evidence such as this demonstrates that Mr. Justice Harlan, dissenting in the Civil Rights Cases, 109 U.S. 3, 26, was surely correct when he observed:
The Framers of the Fourteenth Amendment, reacting against the Black Codes,
Thus a fundamental assumption of the Fourteenth Amendment was that the States would continue, as they had for ages, to enforce the right of citizens freely to enter public places. This assumption concerning the affirmative duty attaching to places of public accommodation was so rooted in the experience of the white citizenry that law and custom blended together indistinguishably.
The Civil Rights Act of 1875, enacted seven years after the Fourteenth Amendment, specifically provided that all citizens must have "the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement . . ." 18 Stat. 335. The constitutionality of this federal legislation was reviewed by this Court in 1883 in the Civil Rights Cases, 109 U.S. 3. The dissent in the present case purports to follow the "state action" concept articulated in that early decision. There the Court had declared that under the Fourteenth Amendment:
Mr. Justice Bradley, writing for the Court over the strong dissent of Mr. Justice Harlan, held that a proprietor's racially motivated denial of equal access to a public accommodation did not, without more, involve state action. It is of central importance to the case at bar that the Court's decision was expressly predicated:
The Court added that:
This assumption, whatever its validity at the time of the 1883 decision, has proved to be unfounded. Although reconstruction ended in 1877, six years before the Civil Rights Cases, there was little immediate action in the South to establish segregation, in law or in fact, in places
A State applying its statutory or common law
In the present case the responsibility of the judiciary in applying the principles of the Fourteenth Amendment is clear. The State of Maryland has failed to protect petitioners' constitutional right to public accommodations and is now prosecuting them for attempting to exercise that right. The decision of Maryland's highest court in sustaining these trespass convictions cannot be described as "neutral," for the decision is as affirmative in effect as if the State had enacted an unconstitutional law explicitly authorizing racial discrimination in places of public accommodation. A State, obligated under the Fourteenth Amendment to maintain a system of law in which Negroes are not denied protection in their claim to be treated as equal members of the community, may not use its criminal trespass laws to frustrate the constitutionally granted right. Nor, it should be added, may a State frustrate this right by legitimating a proprietor's attempt at self-help. To permit self-help would be to disregard the principle that "[t]oday, no less than 50 years ago, the solution to the problems growing out of race relations' cannot be promoted by depriving citizens of their constitutional rights and privileges,' Buchanan v. Warley . . . 245 U. S., at 80-81." Watson v. City of Memphis, 358 U.S. 526, 539. As declared in Cooper v. Aaron, 358 U.S. 1, 16, "law and order are not . . . to be preserved by depriving the Negro . . . of [his] constitutional rights."
In spite of this, the dissent intimates that its view best comports with the needs of law and order. Thus it is said: "It would betray our whole plan for a tranquil and orderly society to say that a citizen, because of his personal
My Brother DOUGLAS convincingly demonstrates that the dissent has constructed a straw man by suggesting that this case involves "a property owner's right to choose his social or business associates." Post, at 343. The restaurant involved in this case is concededly open to a large segment of the public. Restaurants such as this daily open their doors to millions of Americans. These establishments provide a public service as necessary today as the inns and carriers of Blackstone's time. It should be recognized that the claim asserted by the Negro petitioners concerns such public establishments and does not infringe upon the rights of property owners or personal associational interests.
Petitioners frankly state that the "extension of constitutional guarantees to the authentically private choices of man is wholly unacceptable, and any constitutional
We deal here, however, with a claim of equal access to public accommodations. This is not a claim which significantly impinges upon personal associational interests; nor is it a claim infringing upon the control of private property not dedicated to public use. A judicial ruling on this claim inevitably involves the liberties and freedoms
Of course, although the present case involves the right to service in a restaurant, the fundamental principles of the Fourteenth Amendment apply with equal force to other places of public accommodation and amusement. Claims so important as those presented here cannot be dismissed by asserting that the Fourteenth Amendment, while clearly addressed to inns and public conveyances, did not contemplate lunch counters and soda fountains. Institutions such as these serve essentially the same needs in modern life as did the innkeeper and the carrier at common law.
In my view the historical evidence demonstrates that the traditional rights of access to places of public accommodation were quite familiar to Congressmen and to the general public who naturally assumed that the Fourteenth Amendment extended these traditional rights to Negroes. But even if the historical evidence were not as convincing as I believe it to be, the logic of Brown v. Board of Education, 347 U.S. 483, based as it was on the fundamental principle of constitutional interpretation proclaimed by Chief Justice Marshall,
In Brown, after stating that the available history was "inconclusive" on the specific issue of segregated public schools, the Court went on to say:
The dissent makes no effort to assess the status of places of public accommodation "in the light of" their "full development and . . . present place" in the life of American citizens. In failing to adhere to that approach the dissent ignores a pervasive principle of constitutional adjudication and departs from the ultimate logic of Brown. As Mr. Justice Holmes so aptly said:
The constitutional right of all Americans to be treated as equal members of the community with respect to public accommodations is a civil right granted by the people in the Constitution—a right which "is too important in our free society to be stripped of judicial protection." Cf. Wesberry v. Sanders, 376 U.S. 1, 7; Baker v. Carr, 369 U.S. 186. This is not to suggest that Congress lacks authority under § 5 of the Fourteenth Amendment, or under the Commerce Clause, Art. I, § 8, to implement the rights protected by § 1 of the Fourteenth Amendment. In the give-and-take of the legislative process, Congress can fashion a law drawing the guidelines necessary and appropriate to facilitate practical administration and to distinguish between genuinely public and private accommodations. In contrast, we can pass only on justiciable issues coming here on a case-to-case basis.
It is, and should be, more true today than it was over a century ago that "[t]he great advantage of the Americans is that . . . they are born equal"
MR. JUSTICE BLACK, with whom MR. JUSTICE HARLAN and MR. JUSTICE WHITE join, dissenting.
This case does not involve the constitutionality of any existing or proposed state or federal legislation requiring restaurant owners to serve people without regard to color. The crucial issue which the case does present but which the Court does not decide is whether the Fourteenth Amendment, of itself, forbids a State to enforce its trespass laws to convict a person who comes into a privately owned restaurant, is told that because of his color he will not be served, and over the owner's protest refuses to leave. We dissent from the Court's refusal to decide that question. For reasons stated, we think that the question should be decided and that the Fourteenth Amendment does not forbid this application of a State's trespass laws.
The petitioners were convicted in a Maryland state court on a charge that they "unlawfully did enter upon and cross over the land, premises and private property" of the Hooper Food Co., Inc., "after having been duly notified by Albert Warfel, who was then and there the servant and agent for Hooper Food Co.," not to do so, in violation of Maryland's criminal trespass statute.
On the same day that petitioners filed the petition for certiorari in this case, Baltimore enacted an ordinance forbidding privately owned restaurants to refuse to serve Negroes because of their color.
We agree that this Court has power, with or without deciding the constitutional questions, to remand the case for the Maryland Court of Appeals to decide the state question as to whether the convictions should be set aside and the prosecutions abated because of the new laws. But as the cases cited by the Court recognize, our question is not one of power to take this action but of whether we should. And the Maryland court would be equally free to give petitioners the benefit of any rights they have growing out of the new law whether we upheld the trespass statute and affirmed, or refused to pass upon its validity at this time. For of course our affirmance of the state court's holding that the Maryland trespass
Nor do we agree that because of the new state question we should vacate the judgment in order to avoid deciding the constitutionality of the trespass statute as applied. We fully recognize the salutary general judicial practice of not unnecessarily reaching out to decide constitutional questions. But this is neither a constitutional nor a statutory requirement. Nor does the principle properly understood and applied impose a rigid, arbitrary, and inexorable command that courts should never decide a constitutional question in any single case if subtle ingenuity can think up any conceivable technique that might, if utilized, offer a distant possibility of avoiding decision. Here we believe the constitutionality of this trespass statute should be decided.
This case is but one of five involving the same kind of sit-in trespass problems we selected out of a large and growing group of pending cases to decide this very question. We have today granted certiorari in two more of this group of cases.
Although the question was neither raised nor decided in the courts below, petitioners contend that the Maryland statute is void for vagueness under the Due Process Clause of the Fourteenth Amendment because its language gave no fair warning that "sit-ins" staged over a restaurant owner's protest were prohibited by the statute.
We reject the contention that the statute as construed is void for vagueness. In doing so, we do not overlook or disregard the view expressed in other cases that statutes which, in regulating conduct, may indirectly touch the areas of freedom of expression should be construed narrowly where necessary to protect that freedom.
Section 1 of the Fourteenth Amendment provides in part:
This section of the Amendment, unlike other sections,
Petitioners, but not the Solicitor General, contend that their conviction for trespass under the state statute was by itself the kind of discriminatory state action forbidden by the Fourteenth Amendment. This contention, on its face, has plausibility when considered along with general statements to the effect that under the Amendment forbidden "state action" may be that of the Judicial as well as of the Legislative or Executive Branch of Government. But a mechanical application of the Fourteenth Amendment to this case cannot survive analysis. The Amendment does not forbid a State to prosecute for crimes committed against a person or his property, however prejudiced or narrow the victim's views may be. Nor can whatever prejudice and bigotry the victim of a crime may have be automatically attributed to the State that prosecutes. Such a doctrine would not only be based on a fiction; it would also severely handicap a State's efforts to maintain a peaceful and orderly society. Our society has put its trust in a system of criminal laws to punish lawless conduct. To avert personal feuds and violent brawls it has led its people to believe and expect that wrongs against them will be vindicated in the courts. Instead of attempting to take the law into their own hands, people have been taught to call for police protection to protect their rights wherever possible.
In contending that the State's prosecution of petitioners for trespass is state action forbidden by the Fourteenth Amendment, petitioners rely chiefly on Shelley v. Kraemer, supra. That reliance is misplaced. Shelley held that the Fourteenth Amendment was violated by a State's enforcement of restrictive covenants providing that certain pieces of real estate should not be used or occupied by Negroes, Orientals, or any other non-Caucasians, either as owners or tenants, and that in case of use or occupancy by such proscribed classes, the title of any person so using or occupying it should be divested. Many briefs were filed in that case by the parties and by amici curiae. To support the holding that state
It seems pretty clear that the reason judicial enforcement of the restrictive covenants in Shelley was deemed state action was not merely the fact that a state court had acted, but rather that it had acted "to deny to petitioners, on the grounds of race or color, the enjoyment of property rights in premises which petitioners are willing and financially able to acquire and which the grantors are willing to sell." 334 U. S., at 19. In other words, this Court held that state enforcement of the covenants had the effect of denying to the parties their federally guaranteed right to own, occupy, enjoy, and use their property without regard to race or color. Thus, the line of cases from Buchanan through Shelley establishes these
In concluding that mere judicial enforcement of the trespass law is not sufficient to impute to Maryland Hooper's refusal to serve Negroes, we are in accord with the Solicitor General's views as we understand them. He takes it for granted
The Solicitor General also says:
Neither the parties nor the Solicitor General, at least with respect to Maryland, has been able to find the present existence of any state law or local ordinance, any state court or administrative ruling, or any other official state conduct which could possibly have had any coercive influence on Hooper's racial practices. Yet despite a complete absence of any sort of proof or even respectable
There is another objection to accepting this argument. If it were accepted, we would have one Fourteenth Amendment for the South and quite a different and more lenient one for the other parts of the country. Present "state action" in this area of constitutional rights would
Our Brother GOLDBERG in his opinion argues that the Fourteenth Amendment, of its own force and without the need of congressional legislation, prohibits privately owned restaurants from discriminating on account of color or race. His argument runs something like this: (1) Congress understood the "Anglo-American" common law, as it then existed in the several States, to prohibit owners of inns and other establishments open to the public from discriminating on account of race; (2) in passing the Civil Rights Act of 1866 and other civil rights legislation, Congress meant access to such establishments to be among the "civil rights" protected; (3) finally, those who framed and passed the Fourteenth Amendment intended it, of its own force, to assure persons of all races equal access to privately owned inns and other accommodations. In making this argument, the opinion refers us to three state supreme court cases and to congressional debates on various post-Civil War civil rights bills. However, not only does the very material cited furnish scant, and often contradictory, support for the first two propositions (about the common law and the Reconstruction era statutes), but, even more important, the material furnishes absolutely none for the third proposition, which is the issue in this case.
In the first place, there was considerable doubt and argument concerning what the common law in the 1860's required even of carriers and innkeepers and still more concerning what it required of owners of other establishments. For example, in Senate debates in 1864 on a proposal to amend the charter of the street railway company in the District of Columbia to prohibit it from excluding
Second, it is not at all clear that in the statutes relied on—the Civil Rights Act of 1866 and the Supplementary Freedmen's Bureau Act—Congress meant for those statutes to guarantee Negroes access to establishments
Finally, and controlling here, there is nothing whatever in the material cited to support the proposition that the Fourteenth Amendment, without congressional legislation, prohibits owners of restaurants and other places to refuse service to Negroes. We are cited, only in passing, to general statements made in the House of Representatives to the effect that the Fourteenth Amendment was meant to incorporate the "principles" of the Civil Rights Act of 1866.
Apart from the one passing reference just mentioned above to the debates on the Fourteenth Amendment, a reference which we have shown had no relevance whatever to whom restaurants should serve, every one of the passages cited deals entirely with proposed legislation —not with the Amendment.
We have confined ourselves entirely to those debates cited in Brother GOLDBERG'S opinion the better to show how, even on its own evidence, the opinion's argument that the Fourteenth Amendment without more prohibits discrimination by restaurants and other such places rests on a wholly inadequate historical foundation. When read and analyzed, the argument is shown to rest entirely on what speakers are said to have believed bills and statues of the time were meant to do. Such proof fails entirely when the question is, not what statutes did, but rather what the Constitution does. Nor are the three state cases
We are admonished that in deciding this case we should remember that "it is a constitution we are expounding."
This Court has done much in carrying out its solemn duty to protect people from unlawful discrimination. And it will, of course, continue to carry out this duty in the future as it has in the past.
Petitioners, but not the Solicitor General, contend that their convictions for trespass deny them the right of freedom of expression guaranteed by the Constitution. They argue that their
Their argument comes down to this: that since petitioners did not shout, obstruct Hooper's business (which the record refutes), make speeches, or display picket signs, handbills, or other means of communication, they had a perfect constitutional right to assemble and remain in the restaurant, over the owner's continuing objections, for the purpose of expressing themselves by language and "demonstrations" bespeaking their hostility to Hooper's refusal to serve Negroes. This Court's prior cases do not support such a privilege growing out of the constitutional rights of speech and assembly. Unquestionably petitioners
A great purpose of freedom of speech and press is to provide a forum for settlement of acrimonious disputes peaceably, without resort to intimidation, force, or violence. The experience of ages points to the inexorable fact that people are frequently stirred to violence when property which the law recognizes as theirs is forcibly invaded or occupied by others. Trespass laws are born of this experience. They have been, and doubtless still are, important features of any government dedicated, as this country is, to a rule of law. Whatever power it may allow the States or grant to the Congress to regulate the use of private property, the Constitution does not confer upon any group the right to substitute rule by force for rule by law. Force leads to violence, violence to mob conflicts, and these to rule by the strongest groups with control of the most deadly weapons. Our Constitution, noble work of wise men, was designed— all of it—to chart a quite different course: to "establish Justice, insure domestic Tranquility . . . and secure the Blessings of Liberty to ourselves and our Posterity." At times the rule of law seems too slow to some for the settlement of their grievances. But it is the plan our Nation has chosen to preserve both "Liberty" and equality for all. On that plan we have put our trust and staked our future. This constitutional rule of law has served us well. Maryland's trespass law does not depart from it. Nor shall we.
We would affirm.
"It is in the general true that the province of an appellate court is only to enquire whether a judgment when rendered was erroneous or not. But if subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied. If the law be constitutional, . . . I know of no court which can contest its obligation. . . . In such a case the court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside."
See also Yeaton v. United States, 5 Cranch 281, 283; Maryland v. Baltimore & O. R. Co., 3 How. 534, 552; United States v. Tynen, 11 Wall. 88, 95; United States v. Reisinger, 128 U.S. 398, 401; United States v. Chambers, 291 U.S. 217, 222-223; Massey v. United States, 291 U.S. 608.
"These black codes provided for relationships between the whites and the blacks in harmony with realities—as the whites understood them—rather than with abstract theory. They conferred upon the freedmen fairly extensive privileges, gave them the essential rights of citizens to contract, sue and be sued, own and inherit property, and testify in court, and made some provision for education. In no instance were the freedmen accorded the vote or made eligible for juries, and for the most part they were not permitted to testify against white men. Because of their alleged aversion to steady work they were required to have some steady occupation, and subjected to special penalties for violation of labor contracts. Vagrancy and apprenticeship laws were especially harsh, and lent themselves readily to the establishment of a system of peonage. The penal codes provided harsher and more arbitrary punishments for blacks than for whites, and some states permitted individual masters to administer corporal punishment to `refractory servants.' Negroes were not allowed to bear arms or to appear in all public places, and there were special laws governing the domestic relations of the blacks. In some states laws closing to the freedmen every occupation save domestic and agricultural service, betrayed a poor-white jealousy of the Negro artisan. Most codes, however, included special provisions to protect the Negro from undue exploitation and swindling. On the whole the black codes corresponded fairly closely to the essential fact that nearly four million ex-slaves needed special attention until they were ready to mingle in free society on more equal terms. But in such states as South Carolina and Mississippi there was clearly evident a desire to keep the freedmen in a permanent position of tutelage, if not of peonage."
"Cross examination by Solicitor Rayburn:
"Q. What is your name, please?
"A. Miss Mary Hamilton.
"Q. Mary, I believe—you were arrested—who were you arrested by?
"A. My name is Miss Hamilton. Please address me correctly.
"Q. Who were you arrested by, Mary?
"A. I will not answer a question—
"By Attorney Amaker: The witness's name is Miss Hamilton.
"A. —your question until I am addressed correctly.
"The Court: Answer the question.
"The Witness: I will not answer them unless I am addressed correctly.
"The Court: You are in contempt of court—
"Attorney Conley: Your Honor—your Honor—
"The Court: You are in contempt of this court, and you are sentenced to five days in jail and a fifty dollar fine."
Additional relics of slavery are mirrored in recent decisions: Brown v. Board of Education, 347 U.S. 483 (segregated schools); Johnson v. Virginia, 373 U.S. 61 (segregated courtroom); Peterson v. Greenville, 373 U.S. 244, and Lombard v. Louisiana, 373 U.S. 267 (segregated restaurants); Wright v. Georgia, 373 U.S. 284, and Watson v. Memphis, 373 U.S. 526 (segregated public parks).
"The founding fathers, despite some differences of opinion among them, were of one mind when it came to fundamentals—the best guarantee of freedom was the retention by the individual of the broadest possible scope for decision-making. And early in the nation's history, when the Supreme Court decided that the corporation possessed many of the same rights as individuals, continuity was maintained in basic structure; the corporate owner as well as the individual had wide scope for decision-making. In recent decades, another extension of this trend became manifest. The agents of owners—the managers—were able to subsume for themselves the authorities inherent in ownership. The historical record, then, is clear. The right to do what one likes with his property lies at the very foundation of our historical experience. This is a basis for management's growing concern with the restrictions and limitations which have increasingly come to characterize an arena where the widest scope for individual initiative previously prevailed."
"Even where business losses occur, they usually are only temporary. At the 120-room Peachtree Manor Hotel in Atlanta, owner Irving H. Goldstein says his business dropped off 15% when the hotel desegregated a year ago. `But now we are only slightly behind a year ago and we can see we are beginning to recapture the business we initially lost,' declares Mr. Goldstein.
"William F. Davoren, owner of the Brownie Drug Co. in Huntsville, Ala., reports that though his business fell a bit for several weeks after lunch counters were desegregated, he's now picked up all that he lost. Says he: `I could name a dozen people who regarded it as a personal affront when I started serving Negroes, but have come back as if nothing had happened.'
"Even a segregation-minded businessman in Huntsville agrees that white customers frequently have short memories when it comes to the race question. W. T. Hutchens, general manager of three Walgreen stores there, says he held out when most lunch counter operators gave in to sit-in pressures last July. In one shopping center where his competition desegregated, Mr. Hutchens says his business shot up sharply and the store's lunch counter volume registered a 12% gain for the year. However, this year business has dropped back to pre-integration levels `because a lot of people have forgotten' the defiant role his stores played during the sit-ins, he adds.
"Some Southern businessmen who have desegregated say they have picked up extra business as a result of the move.
"At Raleigh, N. C., where Gino's Restaurant was desegregated this year, owner Jack Griffiths reports only eight whites have walked out after learning the establishment served Negroes, and he says, `we're getting plenty of customers to replace the hard-headed ones.'
"In Dallas, integration of hotels and restaurants has `opened up an entirely new area of convention prospects,' according to Ray Bennison, convention manager of the Chamber of Commerce. `This year we've probably added $8 million to $10 million of future bookings because we're integrated,' Mr. Bennison says." Wall Street Journal, July 15, 1963, pp. 1, 12.
As recently stated by John Perry:
"The manager has become accustomed to seeing well-dressed Negroes in good restaurants, on planes and trains, in church, in hotel lobbies, at United Fund meetings, on television, at his university club. Only a few years ago, if he met a Negro at some civic or political meeting, he understood that the man was there because he was a Negro; he was a kind of exhibit. Today it is much more likely that the Negro is there because of his position or profession. It makes a difference that everyone feels.
"The manager is aware that companies other than his are changing. He sees it happening. He reads about it. It is talked about, usually off the record and informally, at business gatherings. So, in due course, questions are shaped in his mind: `How can we keep in step? How can we change, without making a big deal of it? Can we do it without a lot of uproar?' " Business—Next Target for Integration, March-April, 1963, Harvard Business Rev., pp. 104, 111.
"When it comes to speaking out on business matters, Roger Blough, chairman of the United States Steel Corporation, does not mince words.
"Mr. Blough is a firm believer in freedom of action for corporate management, a position he made clear in his battle with the Administration last year. But he also has put some severe limits on the exercise of corporate responsibility, for he rejects the suggestion that U. S. Steel, the biggest employer in Birmingham, Ala., should use its economic influence to erase racial tensions. Mr. Blough feels that U. S. Steel has fulfilled its responsibilities by following a non-discriminatory hiring policy in Birmingham, and looks upon any other measures as both `repugnant' and `quite beyond what a corporation should do' to improve conditions.
"This hands-off strategy surely underestimates the potential influence of a corporation as big as U. S. Steel, particularly at the local level. It could, without affecting its profit margins adversely or getting itself directly involved in politics, actively work with those groups in Birmingham trying to better race relations. Steel is not sold on the retail level, so U. S. Steel has not been faced with the economic pressure used against the branches of national chain stores.
"Many corporations have belatedly recognized that it is in their own self-interest to promote an improvement in Negro opportunities. As one of the nation's biggest corporations, U. S. Steel and its shareholders have as great a stake in eliminating the economic imbalances associated with racial discrimination as any company. Corporate responsibility is not easy to define or to measure, but in refusing to take a stand in Birmingham, Mr. Blough appears to have a rather narrow, limited concept of his influence."
"Both proponents and opponents of § 1 of the [Fourteenth] amendment spoke of its relation to the Civil Rights Bill which had been previously passed over the President's veto. Some considered that the amendment settled any doubts there might be as to the constitutionality of the Civil Rights Bill. Cong. Globe, [39th Cong., 1st Sess.,] 2511, 2896. Others maintained that the Civil Rights Bill would be unconstitutional unless and until the amendment was adopted. Cong. Globe, 2461, 2502, 2506, 2513, 2961. Some thought that amendment was nothing but the Civil Rights [Bill] `in another shape.' Cong. Globe, 2459, 2462, 2465, 2467, 2498, 2502."
"The right to travel is a part of the `liberty' of which the citizen cannot be deprived without due process of law under the Fifth [and Fourteenth Amendments]. . . . In Anglo-Saxon law that right was emerging at least as early as the Magna Carta. . . . Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad, like travel within the country, may be necessary for a livelihood. It may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values. See Crandall v. Nevada, 6 Wall. 35, 44; Williams v. Fears, 179 U.S. 270, 274; Edwards v. California, 314 U.S. 160." See also Aptheker v. Secretary of State, post, p. 500.
This right to move freely has always been thought to be and is now more than ever inextricably linked with the right of the citizen to be accepted and to be treated equally in places of public accommodation. See the opinion of MR. JUSTICE DOUGLAS, ante, at 250-251.
"[I]f an inn-keeper, or other victualler, hangs out a sign and opens his house for travelers, it is an implied engagement to entertain all persons who travel that way; and upon this universal assumpsit an action on the case will lie against him for damages if he, without good reason, refuses to admit a traveler." (Emphasis added.) In Tidswell, The Innkeeper's Legal Guide (1864), p. 22, a "victualling house" is defined as a place "where people are provided with food and liquors, but not with lodgings," and in 3 Stroud, Judicial Dictionary (1903), as "a house where persons are provided with victuals, but without lodging."
Regardless, however, of the precise content of state common-law rules and the legal status of restaurants at the time of the adoption of the Fourteenth Amendment, the spirit of the common law was both familiar and apparent. In 1701 in Lane v. Cotton, 12 Mod. 472, 484-485, Holt, C. J., had declared:
"[W]herever any subject takes upon himself a public trust for the benefit of the rest of his fellow-subjects, he is eo ipso bound to serve the subject in all the things that are within the reach and comprehension of such an office, under pain of an action against him . . . . If on the road a shoe fall off my horse, and I come to a smith to have one put on, and the smith refuse to do it, an action will lie against him, because he has made profession of a trade which is for the public good, and has thereby exposed and vested an interest of himself in all the king's subjects that will employ him in the way of his trade. If an innkeeper refuse to entertain a guest where his house is not full, an action will lie against him, and so against a carrier, if his horses be not loaded, and he refuse to take a packet proper to be sent by a carrier . . . . If the inn be full, or the carrier's horses laden, the action would not lie for such refusal; but one that has made profession of a public employment, is bound to the utmost extent of that employment to serve the public."
See Munn v. Illinois, 94 U.S. 113, 126-130 (referring to the duties traditionally imposed on one who pursues a public employment and exercises "a sort of public office").
Furthermore, it should be pointed out that the Framers of the Fourteenth Amendment, and the men who debated the Civil Rights Acts of 1866 and 1875, were not thinking only in terms of existing common-law duties but were thinking more generally of the customary expectations of white citizens with respect to places which were considered public and which were in various ways regulated by laws. See infra, at 298-305. Finally, as the Court acknowledged in Strauder v. West Virginia, 100 U.S. 303, 310, the "Fourteenth Amendment makes no attempt to enumerate the rights it designed to protect," for those who adopted it were conscious that a constitutional "principle to be vital must be capable of wider application than the mischief which gave it birth." Weems v. United States, 217 U.S. 349, 373. See infra, at 315.
"No one reading the Constitution can deny that every colored man is a citizen, and as such, so far as legislation may go, entitled to equal rights and privileges with white people. Can it be doubted that for a denial of any of the privileges or accommodations enumerated in the bill [proposed supplement to the Civil Rights Act of 1866] he could maintain a suit at common law against the inn-keeper, the public carrier, or proprietor or lessee of the theater who withheld them? Suppose a colored man presents himself at a public inn, kept for the accommodation of the public, is decently clad and behaves himself well and is ready to pay the customary charges for rest and refreshment, and is either refused admittance or treated as an inferior guest—placed at the second table and consigned to the garret, or compelled to make his couch upon the floor—does any one doubt that upon an appeal to the courts, the law if justly administered would pronounce the inn-keeper responsible to him in damages for the unjust discrimination? I suppose not. Prejudice in the jury-box might deny him substantial damages; but about the law in the matter there can be no two opinions. The same is true of public carriers on land or water. Their engagement with the public is to carry all persons who seek conveyance on their cars or boats to the extent of their facilities for certain established fares, and all persons who behave themselves and are not afflicted with any contagious disease are entitled to equal accommodations where they pay equal fares.
"But it is asked, if the law be as you lay it down, where the necessity for this legislation, since the courts are open to all? My answer is, that the remedy is inadequate and too expensive, and involves too much loss of time and patience to pursue it. When a man is traveling, and far from home, it does not pay to sue every inn-keeper who, or railroad company which, insults him by unjust discrimination. Practically the remedy is worthless." 2 Cong. Rec. 4081-4082.
The argument of the Attorney General of Mississippi in Donnell v. State, 48 Miss. 661, explicitly related the State's new public accommodations law to the Thirteenth and Fourteenth Amendments. He stated that the Amendments conferred a national "power to enforce, `by appropriate legislation,' these rights, privileges and immunities of citizenship upon the newly enfranchised class . . ."; he then concluded that "the legislature of this state has sought, by this [anti-discrimination] act, to render any interference by congress unnecessary." Id., at 668. This view seems to accord with the assumption underlying the Civil Rights Cases.
In May of 1871, after corresponding with Justice Bradley, Judge Woods delivered an opinion upholding the federal statute and the indictment. The judge declared that the rights allegedly infringed were protected under the Privileges and Immunities Clause of the Fourteenth Amendment: "We think . . . that the right of freedom of speech, and the other rights enumerated in the first eight articles of amendment to the constitution of the United States, are the privileges and immunities of citizens of the United States, that they are secured by the constitution . . . ." 26 Fed. Cas., at 82. This position is similar to that of Justice Bradley two years later dissenting in the Slaughter-House Cases, 16 Wall. 36, 111, 118-119. More important for present purposes, however, is the fact that in analyzing the problem of "private" (nonstate) action, Judge Woods' reasoning and language follow that of Justice Bradley's letters. The judge concluded that under the Fourteenth Amendment Congress could adopt legislation: "to protect the fundamental rights of citizens of the United States against unfriendly or insufficient state legislation, for the fourteenth amendment not only prohibits the making or enforcing of laws which shall abridge the privileges of the citizen, but prohibits the states from denying to all persons within its jurisdiction the equal protection of the laws. Denying includes inaction as well as action, and denying the equal protection of the laws includes the omission to protect, as well as the omission to pass laws for protection." 26 Fed. Cas., at 81.
"Socially people may do as they please within the law, and whites may associate together, as may blacks, and exclude whom they please from their dwellings and private grounds; but there can be no separation in public places between people on account of their color alone which the law will sanction.
"The man who goes either by himself or with his family to a public place must expect to meet and mingle with all classes of people. He cannot ask, to suit his caprice or prejudice or social views, that this or that man shall be excluded because he does not wish to associate with them. He may draw his social line as closely as he chooses at home, or in other private places, but he cannot [sic] in a public place carry the privacy of his home with him, or ask that people not as good or great as he is shall step aside when he appears." Ferguson v. Gies, 82 Mich., at 363, 367-368, 46 N. W., at 720, 721. See supra, at notes 13-14.
"I set at the table with him and two other people and reasoned and talked to him why my policy was not yet one of integration and told him that I had two hundred employees and half of them were colored. I thought as much of them as I did the white employees. I invited them back in my kitchen if they'd like to go back and talk to them. I wanted to prove to them it wasn't my policy, my personal prejudice, we were not, that I had valuable colored employees and I thought just as much of them. I tried to reason with these leaders, told them that as long as my customers were deciding who they wanted to eat with, I'm at the mercy of my customers. I'm trying to do what they want. If they fail to come in, these people are not paying my expenses, and my bills. They didn't want to go back and talk to my colored employees because every one of them are in sympathy with me and that is we're in sympathy with what their objectives are, with what they are trying to abolish . . . ."
"That whole question, after much discussion in Massachusetts, has been settled by Legislation, and the rights of every colored person are placed on an equality with those of white persons. They have the same right with white persons to ride in every public conveyance in the Commonwealth. It was done by positive legislation twenty-one years ago." Ibid. (Emphasis supplied.)
A few minutes later, Senator Davis of Kentucky asked Sumner directly if it was not true that what treatment was extended to colored people by "public hotels" incorporated by the Commonwealth of Massachusetts was left to "the judgment and discretion of the proprietors and managers of the hotels." Sumner, who had answered immediately preceding statements by Davis, left this one unchallenged. Id., at 1161.
"Events of such vast magnitude and influence now and hereafter, have gone into history within the last ten years, that the public mind is not yet quite prepared to consider them calmly and dispas[s]ionately. To the judiciary, which ought at all times to be calm, deliberate and firm, especially so when the public thought and sentiment are at all excited beyond the normal tone, is committed the high trust of declaring what are the rules of conduct and propriety prescribed by the supreme authority, and what are the rights of individuals under them. As to the policy of legislation, the judiciary have nothing to do. That is wisely left with the law-making department of the government." 48 Miss., at 675.