To What Extent Does the System of Slavery Still Exist in America Today, Due to the Exploitation of the Loophole in the 13th Amendment? (1865-present)
By: Leilah Spoor Exam No.:
Table of Contents
TOC o “1-3” h z u Summary of Evidence PAGEREF _Toc512783963 h 4Source A PAGEREF _Toc512783964 h 4Source I PAGEREF _Toc512783965 h 7Evaluation of Sources PAGEREF _Toc512783966 h 8Source E PAGEREF _Toc512783967 h 8Source D PAGEREF _Toc512783968 h 9Analysis PAGEREF _Toc512783969 h 10Reflection PAGEREF _Toc512783970 h 13Bibliography PAGEREF _Toc512783971 h 14
Summary of EvidenceSource AAnon., n.d. History. Online Available at: http://www.history.com/this-day-in-history/slavery-abolished-in-america Accessed 18 January 2018.
This passage explains how the formal abolition of slavery was achieved on the 18th of December 1865. The 13th amendment was drawn up by the Republican Party after President Lincoln issued the Emancipation Proclamation, in 1863, because they had concluded that it would very likely have only a small amount of constitutional power after the end of the Civil War. The 13th amendment ensured that “neither slavery nor involuntary servitude… shall exist within the United States, or any place subject to their jurisdiction.” This source is useful because it gives a brief overview of how the Emancipation Proclamation was not the formal abolition of slavery and how the 13th amendment was formally put into the Constitution.
Smith, J., 2016. MTV News. Online
Available at: http://www.mtv.com/news/2941010/the-slavery-loophole/Accessed 9 March 2018.
This interview with Ava DuVernay expands on what the loophole in the 13th amendment is and how it is being exploited in today’s society. There is a clause within this amendment that states that slavery is illegal and thereby unconstitutional “except as a punishment for crime whereof the party shall have been duly convicted”. This means that if you are a convicted criminal then by law you can be treated as a slave. DuVernay goes on to explain that this clause has been exploited by the private sector for the manufacturing of goods and performance of menial labour that they would normally have to hire workers for; private prisons essentially make a profit from the labour of their inmates and the inmates make extremely low wages. This source is useful because it provides a clearer explanation of the loophole in the 13th amendment and how it has been exploited.
Chan, A. F., 2015. The Huffington Post. Online Available at: HYPERLINK “https://www.huffingtonpost.com/angela-f-chan/america-never-abolished-slavery_b_6777420.html” https://www.huffingtonpost.com/angela-f-chan/america-never-abolished-slavery_b_6777420.html Accessed 18 January 2018
This article shows how the clause in the 13th amendment made it possible for slavery to evolve into the Jim Crow laws and then into the system of mass incarceration. The South exploited the loophole in the 13th amendment and began to arrest masses of African Americans for petty crimes and sell them to private contractors through the convict lease system. This system is essentially still in existence today; prisoners “can and are forced to work for pennies an hour with the profits going to counties, states and private corporations”. This source is useful because provides better insight on the disproportionate numbers of people of colour, and immigrants, who were and are incarcerated for petty crimes in order for them to be worked and considered slaves legally, under the loophole in the 13th amendment.
Nold, C., 2016. ResearchWorks Archive. Online
Available at: HYPERLINK “https://digital.lib.washington.edu/researchworks/bitstream/handle/1773/36279/nold-researchaward-paper.pdf?sequence=1&isAllowed=y” https://digital.lib.washington.edu/researchworks/bitstream/handle/1773/36279/nold-researchaward-paper.pdf?sequence=1;isAllowed=y Accessed 10 March 2018.
This research paper explains what the convict leasing system was and why it was created. After the abolition of slavery in 1865, the economy of the Southern states was ravaged. In an attempt “to reaffirm white hegemony and create a steady supply of convict workers, the identity and status that had previously accompanied having black skin, – “slave” – was altered to fit new times”. For there to be a steady flow of cheap, forced labour from convicts, various laws were put into place by Southern governments that targeted newly freed black slaves and arrested and imprisoned them for “vagrancy” and forcing them to serve their sentence by doing hard labour. This source is useful because it provides a good analysis of what the convict leasing system was and how it exploited the loophole in the 13th amendment as a means of rebuilding the economy of the South.
13th. 2016. Film Directed by Ava DuVernay. United States of America: Netflix.
Accessed 9 March 2018
This documentary explores how and why the loophole in the 13th amendment has and is being exploited for slavery to continue ‘legally’; from the convict leasing system after the civil war, to the current system of mass incarceration. Through interviews with various intellectuals, this documentary provides a thorough analysis of how the 13th amendment was and is being exploited by the private sector and lawmakers to earn huge profits for cheap labour while remaining constitutional because inmate technically have next to no rights while incarcerated. This source is useful because it provides a detailed explanation of the events and people responsible for the form of ‘neo-slavery’ that people of colour are subjected to today in the United States of America.
Pilgrim, D. (2000). What was Jim Crow – Jim Crow Museum – Ferris State University. Online
Available at: https://ferris.edu/jimcrow/what.htm
Accessed 26 Apr. 2018.
This article describes how and why segregation, also termed ‘Jim Crow’, originated and how it affected the society at the time, specifically black people. The article discusses how these further entrenched beliefs of white supremacy; the laws even stated that “if necessary, violence must be used to keep blacks at the bottom of the racial hierarchy.” The Jim Crow laws were a legalized form of “anti-black racism” which segregated every facet of life, degraded black people to second-class citizens and increased the amount of racial violence and discrimination within the country. This source is useful because it provides a clear definition of what Jim Crow was and examples of the Jim Crow laws to illustrate the degree to which life was restricted for people of colour.
Childress, S., 2014. Frontline. Online Available at: https://www.pbs.org/wgbh/frontline/article/michelle-alexander-a-system-of-racial-and-social-control/ Accessed 25 January 2018
This interview between Michelle Alexander and reporter Sarah Childress takes an in-depth look at what mass incarceration is and how detrimental this system is for people of colour. Alexander also discusses how there are “more African Americans under correctional control in prison or jail, on probation or parole, than were enslaved in 1850, a decade before the civil war began.” The ‘war on drugs’ was also a massive contributor to the mass incarceration of people of colour; prisoners who are then released after serving their sentence are essentially reduced to being a permanent second-class citizen. This interview transcript is useful because it provides a clearer idea of what mass incarceration is, how large a problem it is and how it is directly linked to racial inequality.
Wagner, P., 2017. Mass Incarceration: The Whole Pie 2017. Online Available at: https://www.prisonpolicy.org/reports/pie2017.html Accessed 25 January 2018
This source provides statistics and figures on the current prison population in the United States and breaks down what they actually mean. The data sheds light on this increasingly problematic system in America and how the war on drugs has contributed largely to the fact that now “1 in 5 incarcerated people are locked up for a drug offense” and that African Americans form 13% of America’s population but 40% of it’s prison population. It is useful because it provides tangible evidence to support the growing concerns over mass incarceration of people of colour.
Carroll, L., 2016. How the war on drugs affected incarceration rates. Online Available at: http://www.politifact.com/truth-o-meter/statements/2016/jul/10/cory-booker/how-war-drugs-affected-incarceration-rates/ Accessed 25 January 2018.
Incarceration rates in the United States have increased exponentially over the last 40 years and this article states that the War on Drugs was responsible for the increase in incarceration rates and that it has had an extremely detrimental effect on minorities and poor people. This system of mass incarceration has kept poor people and minorities underprivileged and disenfranchised due to the 15th amendment which prevents convicted felons from taking part in any type of election in the country. An investigation found that “white people are more likely than black people to sell drugs and about as likely to consume them. Even so, black people are 3.6 times more likely than white people to be arrested for selling drugs and 2.5 times more for drug possession.” This source is useful because it reinforces the racial disparaties in the justice system and highlights how much of an effect mass incarceration has on minorities and those who are less privileged.
Elk, M. ; Sloan, B., 2011. The Washington Post. Online
Available at: https://www.thenation.com/article/hidden-history-alec-and-prison-labor/
Accessed 11 March 2018.
This source gives insight into how lawmakers are colluding with private corporations to pass legislative agendas that allow for them to benefit from the large prison population in America and use prison labour as a source of production and to create private, for-profit prisons. The American Legislative Exchange Council is a non-profit organization that was originally designed to bring conservative economic policy ideas to state and local level but it has since evolved and it has begun to form partnerships with private organizations and serve their agendas. This organization has helped entrench and expand the American prison industry and allows for companies to abuse prison labour for their benefit. This source is useful because it supplies this investigation with evidence that shows how lawmakers and private organizations are using the loophole in the 13th amendment to benefit themselves and make a business out of keeping people in prison.
Plessy v. Ferguson (1896) Supreme Court Reporter.
Plessy v. Ferguson (1896) was a landmark Supreme Court case, in terms of legitimizing racial discrimination and segregation. In 1891, Homer A. Plessy, who was seven-eighths white and one-eighth black sat down in the white-only carriage of a train and was subsequently arrested. Plessy’s lawyer argued that the state of Louisiana “did not have the right to label one citizen as white and another black for the purposes of restricting their rights and privileges.” The Supreme Court stated that as long as state governments provided equal legal process and freedoms for both races, they could maintain separate institutions to facilitate these rights. This source is useful because it provides this investigation with a real-life example of how racial discrimination and segregation were deeply entrenched in society at the time and also how the government legitimized the Jim Crow era by stating that the two races were “separate but equal”.
Evaluation of SourcesSource E13th. 2016. Film Directed by Ava DuVernay. United States of America: Netflix.
Accessed 9 March 2018
Ava DuVernay is an Oscar-nominated director and has a double BA major in English literature and African-American studies from UCLA. This source is a critical analysis of the system of mass incarceration and the entrenched values of slavery still present today. The film features opinions and analyses from various intellectuals and lawmakers like renowned activist and professor Angela Davis, Bryan Stevenson (a lawyer, activist and clinical professor at NYU School of Law) and well-known conservatives like Newton Gingrich and Grover Norquist and others. This documentary is taken from Netflix which a popular, world-wide online streaming service and is in accordance with Netflix’s guidelines which makes the source credible to a certain extent. The documentary’s purpose is to explain and highlight the links between slavery, Jim Crow laws, segregation, the ‘War on Drugs’ and mass incarceration so that the viewer can understand what the documentary is trying to convey to the public.
The value of this source to the investigation is that it provides a professional and critical analysis of America’s justice system, and how the loophole in the 13th amendment has been exploited in order for private corporations to make a profit from forced, prison labour. It contains interviews from various people who are well-informed on these issues and focuses on the link between slavery and mass incarceration. The source is reliable to a large extent because most of the interviews are from activists, lawmakers and intellectuals who have thoroughly researched, or are knowledgeable about the issues presented in the documentary. However, majority of the interviews express opinions that are in support of the documentary and therefore, the documentary is biased. The source is also limited by the fact that this documentary was released on a public streaming service and was therefore, to a certain extent, sensationalized.
Source DNold, C., 2016. ResearchWorks Archive. Online
Available at: https://digital.lib.washington.edu/researchworks/bitstream/handle/1773/36279/nold-researchaward-paper.pdf?sequence=1;isAllowed=y
Accessed 10 March 2018.
Caitlin Nold is currently a student, studying societies and justice, at the University of Washington and has won the Library Research Award for Undergraduates in 2016 for this research paper. This source is a carefully researched investigation into the convict leasing system and the privatization of prisons for profit and how these factors have and are affecting society today, particularly people of colour, in America. This paper is a secondary source and has been evaluated by the criteria set out for this award and has been written by a student who has researched and checked the sources she used in her essay and she has listed all the sources that she extracted her evidence from, which makes the source reliable to an extent. The purpose of this source is to explain how and why the convict leasing system came into existence and how it ultimately paved the way for mass incarceration that was racially unequal. It also suggests various measures that could be implemented to rectify how many people are incarcerated each year and to reform the prison system.
The value of this source to this investigation is that it provides a relatively unbiased and well-researched review of the convict leasing system and the problems entrenched in the prison system due to privatization and entrenched racial inequality without feeling as though they have been persuaded to think a certain way. However, this source is limited by the fact that there are no conflicting pieces of evidence in her argument which means that the paper is only presenting a one-sided view on the issue. It is also a PDF from a website which means that it could have been edited to include or exclude certain information.
AnalysisSlavery was formally abolished in 1865 when the 13th amendment was implemented and all slaves were subsequently set free. The term ‘slavery’ can be defined as the ownership of an individual who is obliged to work for their owner without being paid. Slavery was replaced by systems like convict-leasing, Jim Crow, the War on Drugs, and the current system of mass incarceration which strips black people of their rights, forces them to work and then exploits their inexpensive labour for economic gain under orifice in the 13th amendment. Therefore, to a large extent, the system of slavery is still in existence in America today due to the exploitation of the loophole in the 13th amendment.
The 13th amendment states that “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” However, the loophole states that slavery is illegal “except as a punishment for crime” which means that if you are convicted of a crime and then incarcerated, you can legally be treated as a slave as punishment for your transgressions.
The formal abolition of slavery left the economy of the South broken because it had been founded on slavery and agriculture. The government of the Southern states devised the convict lease system as a solution for fixing their economy. They began to pass various pieces of legislation that targeted the newly liberated slaves and began incarcerating them in large numbers for petty crimes, like vagrancy or loitering. This convict leasing system “provided revenue for the state and allowed private plantation owners to continue to make high profits from the exploitation of a captive pool of labour” and prisoners were regularly subjected to harsh working conditions but because they were convicted criminals, their treatment was justified under the orifice of the 13th amendment.
In 1877, Jim Crow began to replace the convict leasing system which was being phased out during the late 1870’s. Black people were now being arrested and incarcerated for breaking the Jim Crow laws. These laws segregated every facet of daily life and relegated black people to a permanent second-class citizenship which went against the promises of the 13th, 14th and 15th amendments. The decision made in ‘Plessy v. Ferguson (1896)’ further legitimized and entrenched the discrimination against black people and the system of Jim Crow within the country.
1964 and 1965 saw the end of the system of Jim Crow as the federal government passed the Civil Rights Act and the Voting Rights Act which acknowledged that although slavery had been abolished in 1865, the rights of black people had, in fact, been taken away. The abolition of Jim Crow gave rise to a new system called ‘mass incarceration’ which can be defined as “the process by which people are swept into the criminal justice system, branded criminals and felons, locked up for longer periods of time than most other countries in the world who incarcerate people who have been convicted of crimes, and then released into a permanent second-class status in which they are stripped of basic civil and human rights, like the right to vote, the right to serve on juries, and the right to be free of legal discrimination in employment, housing, access to public benefits.”
The system of mass incarceration works in conjunction with the “war on drugs”; the tough criminalization of drugs provided prisons with a steady flow of inmates and the system of mass incarceration provided organizations with a ready, inexpensive workforce. In 1970, the prison population was 357, 292 but in 1980 when the literal “war on drugs” started, the prison population rose to 513,900 with approximately 41,000 people being incarcerated for drug-related crimes. However, the tougher criminalization of narcotics was a reason that President Raegan used in to justify masses of black people being arrested and charged with drug-related crimes but the “war on drugs” was a means for the government to get more people, specifically black people, in the prison system and used them for forced labour while also cementing them into a permanent second-class status. Today, America’s prison population is 2.3 million with 40% of inmates being black.
This system gave rise to private, for-profit prisons because inmates are a cheaper source of labour for private corporations as opposed to hiring factory workers. They earned below the minimum wage because the prisons wanted prison labour to continue to be inexpensive and therefore, more appealing to private corporations to source as their means of production. Prison labour has been used by the state for a long time to produce items like license plates but prison labour for private organizations had been until ALEC (the American Legislative Exchange Council) created the Prison Industries Act which allowed for private organizations to utilize prison labour as long as they met certain conditions; these conditions are largely ignored and inmates were exploited because of the loophole in the 13th amendment which justified their treatment due to their status as convicted criminals.
The loophole in the 13th amendment has been exploited in order for the system of slavery to evolve into the system of mass incarceration which utilizes the forced, inexpensive labour of inmates. The prison system, the government and private organizations profit off the inmates’ labour because private corporations pay prisons to use their inmates’ labour as a means of production; the system also targets African-Americans and relegates them to a permanent second-class status after they are released from prison. Hence, the system of slavery does, to a large extent, still exists in America today due to the exploitation of the loophole in the 13th amendment.
ReflectionI chose to investigate the issue of mass incarceration as my topic, especially that of black people, after watching a documentary named ’13th’ on Netflix. The documentary illustrated the correlations between the modern prison system and the system of slavery, which made me question whether slavery had ever truly been abolished, which I hope to have answered in this investigation. This investigation made more aware of how much influence money has on how a country is run, in terms of legislature etc. and how something can be perverted and exploited to benefit a small group of people.
This investigation did require a quite a lot of research and fact-checking because I had a very basic understanding of mass incarceration and the issues inside the American prison system. The sources came from articles that were online and from a documentary because those were the most accessible texts and references that I could find on my topic; there were no books available in the library that dealt with this topic adequately. However, after writing this investigation, I feel as though I have a much fuller understanding of America’s history with slavery and how the system has evolved to fit the needs of the changing society.
Appendix iU.S. Supreme Court
Plessy v. Ferguson, 163 U.S. 537 (1896)
Plessy v. Ferguson
Argued April 18, 1896
Decided May 18, 1896
163 U.S. 537
ERROR TO THE SUPREME COURT OF THE STATE OF LOUISIANA
The statute of Louisiana, acts of 1890, c. 111, requiring railway companies carrying passengers in their coaches in that State, to provide equal, but separate, accommodations for the white and colored races, by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations; and providing that no person shall be permitted to occupy seats in coaches other than the ones assigned to them, on account
Page 163 U. S. 538of the race they belong to; and requiring the officer of the passenger train to assign each passenger to the coach or compartment assigned for the race to which he or she belong; and imposing fines or imprisonment upon passengers insisting on going into a coach or compartment other than the one set aide for the race to which he or she belongs; and conferring upon officers of the train power to refuse to carry on the train passengers refusing to occupy the coach or compartment assigned to them, and exempting the railway company from liability for such refusal, are not in conflict with the provisions either of the Thirteenth Amendment or of the Fourteenth Amendment to the Constitution of the United States.
This was a petition for writs of prohibition and certiorari, originally filed in the Supreme Court of the State by Plessy, the plaintiff in error, against the Hon. John H. Ferguson, judge of the criminal District Court for the parish of Orleans, and setting forth in substance the following facts:
That petitioner was a citizen of the United States and a resident of the State of Louisiana, of mixed descent, in the proportion of seven eighths Caucasian and one eighth African blood; that the mixture of colored blood was not discernible in him, and that he was entitled to every recognition, right, privilege and immunity secured to the citizens of the United States of the white race by its Constitution and laws; that, on June 7, 1892, he engaged and paid for a first class passage on the East Louisiana Railway from New Orleans to Covington, in the same State, and thereupon entered a passenger train, and took possession of a vacant seat in a coach where passengers of the white race were accommodated; that such railroad company was incorporated by the laws of Louisiana as a common carrier, and was not authorized to distinguish between citizens according to their race. But, notwithstanding this, petitioner was required by the conductor, under penalty of ejection from said train and imprisonment, to vacate said coach and occupy another seat in a coach assigned by said company for persons not of the white race, and for no other reason than that petitioner was of the colored race; that, upon petitioner’s refusal to comply with such order, he was, with the aid of a police officer, forcibly ejected from said coach and hurried off to and imprisoned in the parish jail of
Page 163 U. S. 539New Orleans, and there held to answer a charge made by such officer to the effect that he was guilty of having criminally violated an act of the General Assembly of the State, approved July 10, 1890, in such case made and provided.
That petitioner was subsequently brought before the recorder of the city for preliminary examination and committed for trial to the criminal District Court for the parish of Orleans, where an information was filed against him in the matter above set forth, for a violation of the above act, which act the petitioner affirmed to be null and void, because in conflict with the Constitution of the United States; that petitioner interposed a plea to such information based upon the unconstitutionality of the act of the General Assembly, to which the district attorney, on behalf of the State, filed a demurrer; that, upon issue being joined upon such demurrer and plea, the court sustained the demurrer, overruled the plea, and ordered petitioner to plead over to the facts set forth in the information, and that, unless the judge of the said court be enjoined by a writ of prohibition from further proceeding in such case, the court will proceed to fine and sentence petitioner to imprisonment, and thus deprive him of his constitutional rights set forth in his said plea, notwithstanding the unconstitutionality of the act under which he was being prosecuted; that no appeal lay from such sentence, and petitioner was without relief or remedy except by writs of prohibition and certiorari. Copies of the information and other proceedings in the criminal District Court were annexed to the petition as an exhibit.
Upon the filing of this petition, an order was issued upon the respondent to show cause why a writ of prohibition should not issue and be made perpetual, and a further order that the record of the proceedings had in the criminal cause be certified and transmitted to the Supreme Court.
To this order the respondent made answer, transmitting a certified copy of the proceedings, asserting the constitutionality of the law, and averring that, instead of pleading or admitting that he belonged to the colored race, the said Plessy declined and refused, either by pleading or otherwise, to admit
Page 163 U. S. 540that he was in any sense or in any proportion a colored man.
The case coming on for a hearing before the Supreme Court, that court was of opinion that the law under which the prosecution was had was constitutional, and denied the relief prayed for by the petitioner. Ex parte Plessy, 45 La.Ann. 80. Whereupon petitioner prayed for a writ of error from this court, which was allowed by the Chief Justice of the Supreme Court of Louisiana.
MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court.
This case turns upon the constitutionality of an act of the General Assembly of the State of Louisiana, passed in 1890, providing for separate railway carriages for the white and colored races. Acts 1890, No. 111, p. 152.
The first section of the statute enacts
“that all railway companies carrying passengers in their coaches in this State shall provide equal but separate accommodations for the white and colored races by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations: Provided, That this section shall not be construed to apply to street railroads. No person or persons, shall be admitted to occupy seats in coaches other than the ones assigned to them on account of the race they belong to.”
By the second section, it was enacted
“that the officers of such passenger trains shall have power and are hereby required
Page 163 U. S. 541to assign each passenger to the coach or compartment used for the race to which such passenger belongs; any passenger insisting on going into a coach or compartment to which by race he does not belong shall be liable to a fine of twenty-five dollars, or in lieu thereof to imprisonment for a period of not more than twenty days in the parish prison, and any officer of any railroad insisting on assigning a passenger to a coach or compartment other than the one set aside for the race to which said passenger belongs shall be liable to a fine of twenty-five dollars, or in lieu thereof to imprisonment for a period of not more than twenty days in the parish prison; and should any passenger refuse to occupy the coach or compartment to which he or she is assigned by the officer of such railway, said officer shall have power to refuse to carry such passenger on his train, and for such refusal neither he nor the railway company which he represents shall be liable for damages in any of the courts of this State.”
The third section provides penalties for the refusal or neglect of the officers, directors, conductors, and employees of railway companies to comply with the act, with a proviso that “nothing in this act shall be construed as applying to nurses attending children of the other race.” The fourth section is immaterial.
The information filed in the criminal District Court charged in substance that Plessy, being a passenger between two stations within the State of Louisiana, was assigned by officers of the company to the coach used for the race to which he belonged, but he insisted upon going into a coach used by the race to which he did not belong. Neither in the information nor plea was his particular race or color averred. The petition for the writ of prohibition averred that petitioner was seven-eighths Caucasian and one eighth African blood; that the mixture of colored blood was not discernible in him, and that he was entitled to every right, privilege and immunity secured to citizens of the United States of the white race; and that, upon such theory, he took possession of a vacant seat in a coach where passengers of the white race were accommodated, and was ordered by the conductor to vacate
Page 163 U. S. 542said coach and take a seat in another assigned to persons of the colored race, and, having refused to comply with such demand, he was forcibly ejected with the aid of a police officer, and imprisoned in the parish jail to answer a charge of having violated the above act.
The constitutionality of this act is attacked upon the ground that it conflicts both with the Thirteenth Amendment of the Constitution, abolishing slavery, and the Fourteenth Amendment, which prohibits certain restrictive legislation on the part of the States.
1. That it does not conflict with the Thirteenth Amendment, which abolished slavery and involuntary servitude, except as a punishment for crime, is too clear for argument. Slavery implies involuntary servitude — a state of bondage; the ownership of mankind as a chattel, or at least the control of the labor and services of one man for the benefit of another, and the absence of a legal right to the disposal of his own person, property and services. This amendment was said in the Slaughterhouse Cases, 16 Wall. 36, to have been intended primarily to abolish slavery as it had been previously known in this country, and that it equally forbade Mexican peonage or the Chinese coolie trade when they amounted to slavery or involuntary servitude, and that the use of the word “servitude” was intended to prohibit the use of all forms of involuntary slavery, of whatever class or name. It was intimated, however, in that case that this amendment was regarded by the statesmen of that day as insufficient to protect the colored race from certain laws which had been enacted in the Southern States, imposing upon the colored race onerous disabilities and burdens and curtailing their rights in the pursuit of life, liberty and property to such an extent that their freedom was of little value; and that the Fourteenth Amendment was devised to meet this exigency.
So, too, in the Civil Rights Cases, 109 U. S. 3, 109 U. S. 24, it was said that the act of a mere individual, the owner of an inn, a public conveyance or place of amusement, refusing accommodations to colored people cannot be justly regarded as imposing any badge of slavery or servitude upon the applicant, but
Page 163 U. S. 543only as involving an ordinary civil injury, properly cognizable by the laws of the State and presumably subject to redress by those laws until the contrary appears. “It would be running the slavery argument into the ground,” said Mr. Justice Bradley,
“to make it apply to every act of discrimination which a person may see fit to make as to the guests he will entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theatre, or deal with in other matters of intercourse or business.”
A statute which implies merely a legal distinction between the white and colored races — a distinction which is founded in the color of the two races and which must always exist so long as white men are distinguished from the other race by color — has no tendency to destroy the legal equality of the two races, or reestablish a state of involuntary servitude. Indeed, we do not understand that the Thirteenth Amendment is strenuously relied upon by the plaintiff in error in this connection.
2. By the Fourteenth Amendment, all persons born or naturalized in the United States and subject to the jurisdiction thereof are made citizens of the United States and of the State wherein they reside, and the States are forbidden from making or enforcing any law which shall abridge the privileges or immunities of citizens of the United States, or shall deprive any person of life, liberty, or property without due process of law, or deny to any person within their jurisdiction the equal protection of the laws.
The proper construction of this amendment was first called to the attention of this court in the Slaughterhouse Cases, 16 Wall. 36, which involved, however, not a question of race, but one of exclusive privileges. The case did not call for any expression of opinion as to the exact rights it was intended to secure to the colored race, but it was said generally that its main purpose was to establish the citizenship of the negro, to give definitions of citizenship of the United States and of the States, and to protect from the hostile legislation of the States the privileges and immunities of citizens of the United States, as distinguished from those of citizens of the States.
Page 163 U. S. 544The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for white and colored children, which has been held to be a valid exercise of the legislative power even by courts of States where the political rights of the colored race have been longest and most earnestly enforced.
One of the earliest of these cases is that of Roberts v. City of Boston, 5 Cush. 19, in which the Supreme Judicial Court of Massachusetts held that the general school committee of Boston had power to make provision for the instruction of colored children in separate schools established exclusively for them, and to prohibit their attendance upon the other schools. “The great principle,” said Chief Justice Shaw, p. 206, “advanced by the learned and eloquent advocate for the plaintiff” (Mr. Charles Sumner),
“is that, by the constitution and laws of Massachusetts, all persons without distinction of age or sex, birth or color, origin or condition, are equal before the law. . . . But when this great principle comes to be applied to the actual and various conditions of persons in society, it will not warrant the assertion that men and women are legally clothed with the same civil and political powers, and that children and adults are legally to have the same functions and be subject to the same treatment, but only that the rights of all, as they are settled and regulated by law, are equally entitled to the paternal consideration and protection of the law for their maintenance and security.”
It was held that the powers of the committee extended to the establishment
Page 163 U. S. 545of separate schools for children of different ages, sexes and colors, and that they might also establish special schools for poor and neglected children, who have become too old to attend the primary school and yet have not acquired the rudiments of learning to enable them to enter the ordinary schools. Similar laws have been enacted by Congress under its general power of legislation over the District of Columbia, Rev.Stat.D.C. §§ 281, 282, 283, 310, 319, as well as by the legislatures of many of the States, and have been generally, if not uniformly, sustained by the courts. State v. McCann, 21 Ohio St. 198; Lehew v. Brummell, 15 S.W.Rep. 765; Ward v. Flood, 48 California 36; Bertonneau v. School Directors, 3 Woods 177; People v. Gallagher, 93 N.Y. 438; Cory v. Carter, 48 Indiana 897; Dawson v. Lee, 3 Kentucky 49.
Laws forbidding the intermarriage of the two races may be said in a technical sense to interfere with the freedom of contract, and yet have been universally recognized as within the police power of the State. State v. Gibson, 36 Indiana 389.
The distinction between laws interfering with the political equality of the negro and those requiring the separation of the two races in schools, theatres and railway carriages has been frequently drawn by this court. Thus, in Strauder v. West Virginia, 100 U. S. 303, it was held that a law of West Virginia limiting to white male persons, 21 years of age and citizens of the State, the right to sit upon juries was a discrimination which implied a legal inferiority in civil society, which lessened the security of the right of the colored race, and was a step toward reducing them to a condition of servility. Indeed, the right of a colored man that, in the selection of jurors to pass upon his life, liberty and property, there shall be no exclusion of his race and no discrimination against them because of color has been asserted in a number of cases. Virginia v. Rives,100 U. S. 313; Neal v. Delaware, 103 U. S. 370; Bush v. Kentucky, 107 U. S. 110; Gibson v. Mississippi, 162 U. S. 565. So, where the laws of a particular locality or the charter of a particular railway corporation has provided that no person shall be excluded from the cars on account of
Page 163 U. S. 546color, we have held that this meant that persons of color should travel in the same car as white ones, and that the enactment was not satisfied by the company’s providing cars assigned exclusively to people of color, though they were as good as those which they assigned exclusively to white persons. Railroad Company v. Brown, 17 Wall. 445.
Upon the other hand, where a statute of Louisiana required those engaged in the transportation of passengers among the States to give to all persons traveling within that State, upon vessels employed in that business, equal rights and privileges in all parts of the vessel, without distinction on account of race or color, and subjected to an action for damages the owner of such a vessel, who excluded colored passengers on account of their color from the cabin set aside by him for the use of whites, it was held to be, so far as it applied to interstate commerce, unconstitutional and void. Hall v. De Cuir,95 U. S. 48. The court in this case, however, expressly disclaimed that it had anything whatever to do with the statute as a regulation of internal commerce, or affecting anything else than commerce among the States.
In the Civil Rights Case, 109 U. S. 3, it was held that an act of Congress entitling all persons within the jurisdiction of the United States to the full and equal enjoyment of the accommodations, advantages, facilities and privileges of inns, public conveyances, on land or water, theatres and other places of public amusement, and made applicable to citizens of every race and color, regardless of any previous condition of servitude, was unconstitutional and void upon the ground that the Fourteenth Amendment was prohibitory upon the States only, and the legislation authorized to be adopted by Congress for enforcing it was not direct legislation on matters respecting which the States were prohibited from making or enforcing certain laws, or doing certain acts, but was corrective legislation such as might be necessary or proper for counteracting and redressing the effect of such laws or acts. In delivering the opinion of the court, Mr. Justice Bradley observed that the Fourteenth Amendment
“does not invest Congress with power to legislate upon subjects that are within the
Page 163 U. S. 547domain of state legislation, but to provide modes of relief against state legislation or state action of the kind referred to. It does not authorize Congress to create a code of municipal law for the regulation of private rights, but to provide modes of redress against the operation of state laws and the action of state officers, executive or judicial, when these are subversive of the fundamental rights specified in the amendment. Positive rights and privileges are undoubtedly secured by the Fourteenth Amendment, but they are secured by way of prohibition against state laws and state proceedings affecting those rights and privileges, and by power given to Congress to legislate for the purpose of carrying such prohibition into effect, and such legislation must necessarily be predicated upon such supposed state laws or state proceedings, and be directed to the correction of their operation and effect.”
Much nearer, and, indeed, almost directly in point is the case of the Louisville, New Orleans &c. Railway v. Mississippi, 133 U. S. 587, wherein the railway company was indicted for a violation of a statute of Mississippi enacting that all railroads carrying passengers should provide equal but separate accommodations for the white and colored races by providing two or more passenger cars for each passenger train, or by dividing the passenger cars by a partition so as to secure separate accommodations. The case was presented in a different aspect from the one under consideration, inasmuch as it was an indictment against the railway company for failing to provide the separate accommodations, but the question considered was the constitutionality of the law. In that case, the Supreme Court of Mississippi, 66 Mississippi 662, had held that the statute applied solely to commerce within the State, and that, being the construction of the state statute by its highest court, was accepted as conclusive. “If it be a matter,” said the court, p. 591,
“respecting commerce wholly within a State, and not interfering with commerce between the States, then obviously there is no violation of the commerce clause of the Federal Constitution. . . . No question arises under this section as to the power of the State to separate in different compartments interstate passengers
Page 163 U. S. 548or affect in any manner the privileges and rights of such passengers. All that we can consider is whether the State has the power to require that railroad trains within her limits shall have separate accommodations for the two races; that affecting only commerce within the State is no invasion of the power given to Congress by the commerce clause.”
A like course of reasoning applies to the case under consideration, since the Supreme Court of Louisiana in the case of the State ex rel. Abbott v. Hicks, Judge, et al., 44 La.Ann. 770, held that the statute in question did not apply to interstate passengers, but was confined in its application to passengers traveling exclusively within the borders of the State. The case was decided largely upon the authority of Railway Co. v. State, 66 Mississippi 662, and affirmed by this court in 133 U. S. 587. In the present case, no question of interference with interstate commerce can possibly arise, since the East Louisiana Railway appears to have been purely a local line, with both its termini within the State of Louisiana. Similar statutes for the separation of the two races upon public conveyances were held to be constitutional in West Chester &c. Railroad v. Miles, 55 Penn.St. 209; Day v. Owen, 5 Michigan 520; Chicago &c. Railway v. Williams, 5 Illinois 185; Chesapeake &c. Railroad v. Wells, 85 Tennessee 613; Memphis &c. Railroad v. Benson, 85 Tennessee 627; The Sue, 22 Fed.Rep. 83; Logwood v. Memphis &c. Railroad, 23 Fed.Rep. 318; McGuinn v. Forbes, 37 Fed.Rep. 639; People v. King, 18 N.E.Rep. 245; Houck v. South Pac. Railway, 38 Fed.Rep. 226; Heard v. Georgia Railroad Co., 3 Int.Com.Com’n 111; S.C., 1 Ibid. 428.
While we think the enforced separation of the races, as applied to the internal commerce of the State, neither abridges the privileges or immunities of the colored man, deprives him of his property without due process of law, nor denies him the equal protection of the laws within the meaning of the Fourteenth Amendment, we are not prepared to say that the conductor, in assigning passengers to the coaches according to their race, does not act at his peril, or that the provision of the second section of the act that denies to the passenger compensation
Page 163 U. S. 549in damages for a refusal to receive him into the coach in which he properly belongs is a valid exercise of the legislative power. Indeed, we understand it to be conceded by the State’s Attorney that such part of the act as exempts from liability the railway company and its officers is unconstitutional. The power to assign to a particular coach obviously implies the power to determine to which race the passenger belongs, as well as the power to determine who, under the laws of the particular State, is to be deemed a white and who a colored person. This question, though indicated in the brief of the plaintiff in error, does not properly arise upon the record in this case, since the only issue made is as to the unconstitutionality of the act so far as it requires the railway to provide separate accommodations and the conductor to assign passengers according to their race.
It is claimed by the plaintiff in error that, in any mixed community, the reputation of belonging to the dominant race, in this instance the white race, is property in the same sense that a right of action or of inheritance is property. Conceding this to be so for the purposes of this case, we are unable to see how this statute deprives him of, or in any way affects his right to, such property. If he be a white man and assigned to a colored coach, he may have his action for damages against the company for being deprived of his so-called property. Upon the other hand, if he be a colored man and be so assigned, he has been deprived of no property, since he is not lawfully entitled to the reputation of being a white man.
In this connection, it is also suggested by the learned counsel for the plaintiff in error that the same argument that will justify the state legislature in requiring railways to provide separate accommodations for the two races will also authorize them to require separate cars to be provided for people whose hair is of a certain color, or who are aliens, or who belong to certain nationalities, or to enact laws requiring colored people to walk upon one side of the street and white people upon the other, or requiring white men’s houses to be painted white and colored men’s black, or their vehicles or business signs to be of different colors, upon the theory that one side
Page 163 U. S. 550of the street is as good as the other, or that a house or vehicle of one color is as good as one of another color. The reply to all this is that every exercise of the police power must be reasonable, and extend only to such laws as are enacted in good faith for the promotion for the public good, and not for the annoyance or oppression of a particular class. Thus, in Yick Wo v. Hopkins, 118 U. S. 356, it was held by this court that a municipal ordinance of the city of San Francisco to regulate the carrying on of public laundries within the limits of the municipality violated the provisions of the Constitution of the United States if it conferred upon the municipal authorities arbitrary power, at their own will and without regard to discretion, in the legal sense of the term, to give or withhold consent as to persons or places without regard to the competency of the persons applying or the propriety of the places selected for the carrying on of the business. It was held to be a covert attempt on the part of the municipality to make an arbitrary and unjust discrimination against the Chinese race. While this was the case of a municipal ordinance, a like principle has been held to apply to acts of a state legislature passed in the exercise of the police power. Railroad Company v. Husen, 95 U. S. 465; Louisville & Nashville Railroad v. Kentucky, 161 U. S. 677, and cases cited on p. 161 U. S. 700; Duggett v. Hudson, 43 Ohio St. 548; Capen v. Foster, 12 Pick. 48; State ex rel. Wood v. Baker, 38 Wisconsin 71; Monroe v. Collins, 17 Ohio St. 66; Hulseman v. Rems, 41 Penn. St. 396; Orman v. Riley, 1 California 48.
So far, then, as a conflict with the Fourteenth Amendment is concerned, the case reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and, with respect to this, there must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness, it is at liberty to act with reference to the established usages, customs, and traditions of the people, and with a view to the promotion of their comfort and the preservation of the public peace and good order. Gauged by this standard, we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances
Page 163 U. S. 551is unreasonable, or more obnoxious to the Fourteenth Amendment than the acts of Congress requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned, or the corresponding acts of state legislatures.
We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. The argument necessarily assumes that if, as has been more than once the case and is not unlikely to be so again, the colored race should become the dominant power in the state legislature, and should enact a law in precisely similar terms, it would thereby relegate the white race to an inferior position. We imagine that the white race, at least, would not acquiesce in this assumption. The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other’s merits, and a voluntary consent of individuals. As was said by the Court of Appeals of New York in People v. Gallagher, 93 N. Y. 438, 448,
“this end can neither be accomplished nor promoted by laws which conflict with the general sentiment of the community upon whom they are designed to operate. When the government, therefore, has secured to each of its citizens equal rights before the law and equal opportunities for improvement and progress, it has accomplished the end for which it was organized, and performed all of the functions respecting social advantages with which it is endowed.”
Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal, one cannot be inferior to the other civilly
Page 163 U. S. 552or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.
It is true that the question of the proportion of colored blood necessary to constitute a colored person, as distinguished from a white person, is one upon which there is a difference of opinion in the different States, some holding that any visible admixture of black blood stamps the person as belonging to the colored race (State v. Chaver, 5 Jones N.C. 1, p. 11); others that it depends upon the preponderance of blood (Gray v. State, 4 Ohio 354; Monroe v. Collins, 17 Ohio St. 665); and still others that the predominance of white blood must only be in the proportion of three-fourths. (People v. Dean, 4 Michigan 406; Jones v. Commonwealth, 80 Virginia 538). But these are questions to be determined under the laws of each State, and are not properly put in issue in this case. Under the allegations of his petition, it may undoubtedly become a question of importance whether, under the laws of Louisiana, the petitioner belongs to the white or colored race.
The judgment of the court below is, therefore,
MR. JUSTICE HARLAN, dissenting.
By the Louisiana statute the validity of which is here involved, all railway companies (other than street railroad companies) carrying passengers in that State are required to have separate but equal accommodations for white and colored persons
“by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations.”
Under this statute, no colored person is permitted to occupy a seat in a coach assigned to white persons, nor any white person to occupy a seat in a coach assigned to colored persons. The managers of the railroad are not allowed to exercise any discretion in the premises, but are required to assign each passenger to some coach or compartment set apart for the exclusive use of his race. If a passenger insists upon going into a coach or compartment not set apart for persons of his race,
Page 163 U. S. 553he is subject to be fined or to be imprisoned in the parish jail. Penalties are prescribed for the refusal or neglect of the officers, directors, conductors and employees of railroad companies to comply with the provisions of the act.
Only “nurses attending children of the other race ” are excepted from the operation of the statute. No exception is made of colored attendants traveling with adults. A white man is not permitted to have his colored servant with him in the same coach, even if his condition of health requires the constant, personal assistance of such servant. If a colored maid insists upon riding in the same coach with a white woman whom she has been employed to serve, and who may need her personal attention while traveling, she is subject to be fined or imprisoned for such an exhibition of zeal in the discharge of duty.
While there may be in Louisiana persons of different races who are not citizens of the United States, the words in the act “white and colored races” necessarily include all citizens of the United States of both races residing in that State. So that we have before us a state enactment that compels, under penalties, the separation of the two races in railroad passenger coaches, and makes it a crime for a citizen of either race to enter a coach that has been assigned to citizens of the other race.
Thus, the State regulates the use of a public highway by citizens of the United States solely upon the basis of race.
However apparent the injustice of such legislation may be, we have only to consider whether it is consistent with the Constitution of the United States.
That a railroad is a public highway, and that the corporation which owns or operates it is in the exercise of public functions, is not, at this day, to be disputed. Mr. Justice Nelson, speaking for this court in New Jersey Steam Navigation Co. v. Merchants’ Bank, 6 How. 344, 47 U. S. 382, said that a common carrier was in the exercise
“of a sort of public office, and has public duties to perform, from which he should not be permitted to exonerate himself without the assent of the parties concerned.”
Mr. Justice Strong, delivering the judgment of
Page 163 U. S. 554this court in Olcott v. The Supervisors, 16 Wall. 678, 83 U. S. 694, said:
“That railroads, though constructed by private corporations and owned by them, are public highways has been the doctrine of nearly all the courts ever since such conveniences for passage and transportation have had any existence. Very early the question arose whether a State’s right of eminent domain could be exercised by a private corporation created for the purpose of constructing a railroad. Clearly it could not unless taking land for such a purpose by such an agency is taking land for public use. The right of eminent domain nowhere justifies taking property for a private use. Yet it is a doctrine universally accepted that a state legislature may authorize a private corporation to take land for the construction of such a road, making compensation to the owner. What else does this doctrine mean if not that building a railroad, though it be built by a private corporation, is an act done for a public use.”
So, in Township of Pine Grove v. Talcott, 19 Wall. 666, 86 U. S. 676: “Though the corporation a railroad company was private, its work was public, as much so as if it were to be constructed by the State.” So, in Inhabitants of Worcester v. Western Railroad Corporation, 4 Met. 564:
“The establishment of that great thoroughfare is regarded as a public work, established by public authority, intended for the public use and benefit, the use of which is secured to the whole community, and constitutes, therefore, like a canal, turnpike or highway, a public easement. It is true that the real and personal property necessary to the establishment and management of the railroad is vested in the corporation, but it is in trust for the public.”
In respect of civil rights common to all citizens, the Constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights. Every true man has pride of race, and, under appropriate circumstances, when the rights of others, his equals before the law, are not to be affected, it is his privilege to express such pride and to take such action based upon it as to him seems proper. But I deny that any legislative body or judicial tribunal may have regard to the
Page 163 U. S. 555race of citizens when the civil rights of those citizens are involved. Indeed, such legislation as that here in question is inconsistent not only with that equality of rights which pertains to citizenship, National and State, but with the personal liberty enjoyed by everyone within the United States.
The Thirteenth Amendment does not permit the withholding or the deprivation of any right necessarily inhering in freedom. It not only struck down the institution of slavery as previously existing in the United States, but it prevents the imposition of any burdens or disabilities that constitute badges of slavery or servitude. It decreed universal civil freedom in this country. This court has so adjudged. But that amendment having been found inadequate to the protection of the rights of those who had been in slavery, it was followed by the Fourteenth Amendment, which added greatly to the dignity and glory of American citizenship and to the security of personal liberty by declaring that
“all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside,”
“no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”
These two amendments, if enforced according to their true intent and meaning, will protect all the civil rights that pertain to freedom and citizenship. Finally, and to the end that no citizen should be denied, on account of his race, the privilege of participating in the political control of his country, as declared by the Fifteenth Amendment that
“the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color or previous condition of servitude.”
These notable additions to the fundamental law were welcomed by the friends of liberty throughout the world. They removed the race line from our governmental systems. They had, as this court has said, a common purpose, namely to secure
“to a race recently emancipated, a race that through
Page 163 U. S. 556many generations have been held in slavery, all the civil rights that the superior race enjoy.”
They declared, in legal effect, this court has further said,
“that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color.”
We also said:
“The words of the amendment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity, or right, most valuable to the colored race — the right to exemption from unfriendly legislation against them distinctively as colored — exemption from legal discriminations, implying inferiority in civil society, Lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps towards reducing them to the condition of a subject race.”
It was, consequently, adjudged that a state law that excluded citizens of the colored race from juries, because of their race and however well qualified in other respects to discharge the duties of jurymen, was repugnant to the Fourteenth Amendment. Strauder v. West Virginia, 100 U. S. 303, 100 U. S. 306, 100 U. S. 307; Virginia v. Rives, 100 U. S. 313; Ex parte Virginia, 100 U. S. 339; Neal v. Delaware, 103 U. S. 370, 103 U. S. 386; Bush v. Kentucky, 107 U. S. 110, 107 U. S. 116. At the present term, referring to the previous adjudications, this court declared that
“underlying all of those decisions is the principle that the Constitution of the United States, in its present form, forbids, so far as civil and political rights are concerned, discrimination by the General Government or the States against any citizen because of his race. All citizens are equal before the law.”
Gibson v. Mississippi,162 U.S. 565.
The decisions referred to show the scope of the recent amendments of the Constitution. They also show that it is not within the power of a State to prohibit colored citizens, because of their race, from participating as jurors in the administration of justice.
It as said in argument that the statute of Louisiana does
Page 163 U. S. 557not discriminate against either race, but prescribes a rule applicable alike to white and colored citizens. But this argument does not meet the difficulty. Everyone knows that the statute in question had its origin in the purpose not so much to exclude white persons from railroad cars occupied by blacks as to exclude colored people from coaches occupied by or assigned to white persons. Railroad corporations of Louisiana did not make discrimination among whites in the matter of accommodation for travelers. The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches. No one would be so wanting in candor a to assert the contrary. The fundamental objection, therefore, to the statute is that it interferes with the personal freedom of citizens. “Personal liberty,” it has been well said,
“consists in the power of locomotion, of changing situation, or removing one’s person to whatsoever places one’s own inclination may direct, without imprisonment or restraint unless by due course of law.”
1 Bl.Com. *134. If a white man and a black man choose to occupy the same public conveyance on a public highway, it is their right to do so, and no government, proceeding alone on grounds of race, can prevent it without infringing the personal liberty of each.
It is one thing for railroad carriers to furnish, or to be required by law to furnish, equal accommodations for all whom they are under a legal duty to carry. It is quite another thing for government to forbid citizens of the white and black races from traveling in the same public conveyance, and to punish officers of railroad companies for permitting persons of the two races to occupy the same passenger coach. If a State can prescribe, as a rule of civil conduct, that whites and blacks shall not travel as passengers in the same railroad coach, why may it not so regulate the use of the streets of its cities and towns as to compel white citizens to keep on one side of a street and black citizens to keep on the other? Why may it not, upon like grounds, punish whites and blacks who ride together in streetcars or in open vehicles on a public road
Page 163 U. S. 558or street? Why may it not require sheriffs to assign whites to one side of a courtroom and blacks to the other? And why may it not also prohibit the commingling of the two races in the galleries of legislative halls or in public assemblages convened for the consideration of the political questions of the day? Further, if this statute of Louisiana is consistent with the personal liberty of citizens, why may not the State require the separation in railroad coaches of native and naturalized citizens of the United States, or of Protestants and Roman Catholics?
The answer given at the argument to these questions was that regulations of the kind they suggest would be unreasonable, and could not, therefore, stand before the law. Is it meant that the determination of questions of legislative power depends upon the inquiry whether the statute whose validity is questioned is, in the judgment of the courts, a reasonable one, taking all the circumstances into consideration? A statute may be unreasonable merely because a sound public policy forbade its enactment. But I do not understand that the courts have anything to do with the policy or expediency of legislation. A statute may be valid and yet, upon grounds of public policy, may well be characterized as unreasonable. Mr. Sedgwick correctly states the rule when he says that, the legislative intention being clearly ascertained,
“the courts have no other duty to perform than to execute the legislative will, without any regard to their views as to the wisdom or justice of the particular enactment.”
Stat. ; Const.Constr. 324. There is a dangerous tendency in these latter days to enlarge the functions of the courts by means of judicial interference with the will of the people as expressed by the legislature. Our institutions have the distinguishing characteristic that the three departments of government are coordinate and separate. Each must keep within the limits defined by the Constitution. And the courts best discharge their duty by executing the will of the lawmaking power, constitutionally expressed, leaving the results of legislation to be dealt with by the people through their representatives. Statutes must always have a reasonable construction. Sometimes they are to be construed strictly; sometimes liberally, in order to carry out the legislative
Page 163 U. S. 559will. But however construed, the intent of the legislature is to be respected, if the particular statute in question is valid, although the courts, looking at the public interests, may conceive the statute to be both unreasonable and impolitic. If the power exists to enact a statute, that ends the matter so far as the courts are concerned. The adjudged cases in which statutes have been held to be void because unreasonable are those in which the means employed by the legislature were not at all germane to the end to which the legislature was competent.
The white race deems itself to be the dominant race in this country. And so it is in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. It is therefore to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a State to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.
In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case. It was adjudged in that case that the descendants of Africans who were imported into this country and sold as slaves were not included nor intended to be included under the word “citizens” in the Constitution, and could not claim any of the rights and privileges which that instrument provided for and secured to citizens of the United States; that, at the time of the adoption of the Constitution, they were
“considered as a subordinate and inferior class of beings, who had been subjugated by the dominant
Page 163 U. S. 560race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the government might choose to grant them.”
19 How. 60 U. S. 393, 60 U. S. 404. The recent amendments of the Constitution, it was supposed, had eradicated these principles from our institutions. But it seems that we have yet, in some of the States, a dominant race — a superior class of citizens, which assumes to regulate the enjoyment of civil rights, common to all citizens, upon the basis of race. The present decision, it may well be apprehended, will not only stimulate aggressions, more or less brutal and irritating, upon the admitted rights of colored citizens, but will encourage the belief that it is possible, by means of state enactments, to defeat the beneficent purposes which the people of the United States had in view when they adopted the recent amendments of the Constitution, by one of which the blacks of this country were made citizens of the United States and of the States in which they respectively reside, and whose privileges and immunities, as citizens, the States are forbidden to abridge. Sixty millions of whites are in no danger from the presence here of eight millions of blacks. The destinies of the two races in this country are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law. What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races, than state enactments which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens. That, as all will admit, is the real meaning of such legislation as was enacted in Louisiana.
The sure guarantee of the peace and security of each race is the clear, distinct, unconditional recognition by our governments, National and State, of every right that inheres in civil freedom, and of the equality before the law of all citizens of the United States, without regard to race. State enactments regulating the enjoyment of civil rights upon the basis of race, and cunningly devised to defeat legitimate results of the
Page 163 U. S. 561war under the pretence of recognizing equality of rights, can have no other result than to render permanent peace impossible and to keep alive a conflict of races the continuance of which must do harm to all concerned. This question is not met by the suggestion that social equality cannot exist between the white and black races in this country. That argument, if it can be properly regarded as one, is scarcely worthy of consideration, for social equality no more exists between two races when traveling in a passenger coach or a public highway than when members of the same races sit by each other in a street car or in the jury box, or stand or sit with each other in a political assembly, or when they use in common the street of a city or town, or when they are in the same room for the purpose of having their names placed on the registry of voters, or when they approach the ballot box in order to exercise the high privilege of voting.
There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race. But, by the statute in question, a Chinaman can ride in the same passenger coach with white citizens of the United States, while citizens of the black race in Louisiana, many of whom, perhaps, risked their lives for the preservation of the Union, who are entitled, by law, to participate in the political control of the State and nation, who are not excluded, by law or by reason of their race, from public stations of any kind, and who have all the legal rights that belong to white citizens, are yet declared to be criminals, liable to imprisonment, if they ride in a public coach occupied by citizens of the white race. It is scarcely just to say that a colored citizen should not object to occupying a public coach assigned to his own race. He does not object, nor, perhaps, would he object to separate coaches for his race if his rights under the law were recognized. But he objecting, and ought never to cease objecting, to the proposition that citizens of the white and black race can be adjudged criminals because they sit, or claim the right to sit, in the same public coach on a public highway.
Page 163 U. S. 562The arbitrary separation of citizens on the basis of race while they are on a public highway is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution. It cannot be justified upon any legal grounds.
If evils will result from the commingling of the two races upon public highways established for the benefit of all, they will be infinitely less than those that will surely come from state legislation regulating the enjoyment of civil rights upon the basis of race. We boast of the freedom enjoyed by our people above all other peoples. But it is difficult to reconcile that boast with a state of the law which, practically, puts the brand of servitude and degradation upon a large class of our fellow citizens, our equals before the law. The thin disguise of “equal” accommodations for passengers in railroad coaches will not mislead anyone, nor atone for the wrong this day done.
The result of the whole matter is that, while this court has frequently adjudged, and at the present term has recognized the doctrine, that a State cannot, consistently with the Constitution of the United States, prevent white and black citizens, having the required qualifications for jury service, from sitting in the same jury box, it is now solemnly held that a State may prohibit white and black citizens from sitting in the same passenger coach on a public highway, or may require that they be separated by a “partition,” when in the same passenger coach. May it not now be reasonably expected that astute men of the dominant race, who affect to be disturbed at the possibility that the integrity of the white race may be corrupted, or that its supremacy will be imperiled, by contact on public highways with black people, will endeavor to procure statutes requiring white and black jurors to be separated in the jury box by a “partition,” and that, upon retiring from the courtroom to consult as to their verdict, such partition, if it be a moveable one, shall be taken to their consultation room and set up in such way as to prevent black jurors from coming too close to their brother jurors of the white race. If the “partition” used in the courtroom happens to be stationary, provision could be made for screens with openings through
Page 163 U. S. 563which jurors of the two races could confer as to their verdict without coming into personal contact with each other. I cannot see but that, according to the principles this day announced, such state legislation, although conceived in hostility to, and enacted for the purpose of humiliating, citizens of the United States of a particular race, would be held to be consistent with the Constitution.
I do not deem it necessary to review the decisions of state courts to which reference was made in argument. Some, and the most important, of them are wholly inapplicable because rendered prior to the adoption of the last amendments of the Constitution, when colored people had very few rights which the dominant race felt obliged to respect. Others were made at a time when public opinion in many localities was dominated by the institution of slavery, when it would not have been safe to do justice to the black man, and when, so far as the rights of blacks were concerned, race prejudice was, practically, the supreme law of the land. Those decisions cannot be guides in the era introduced by the recent amendments of the supreme law, which established universal civil freedom, gave citizenship to all born or naturalized in the United States and residing here, obliterated the race line from our systems of governments, National and State, and placed our free institutions upon the broad and sure foundation of the equality of all men before the law.
I am of opinion that the statute of Louisiana is inconsistent with the personal liberty of citizens, white and black, in that State, and hostile to both the spirit and letter of the Constitution of the United States. If laws of like character should be enacted in the several States of the Union, the effect would be in the highest degree mischievous. Slavery, as an institution tolerated by law would, it is true, have disappeared from our country, but there would remain a power in the States, by sinister legislation, to interfere with the full enjoyment of the blessings of freedom to regulate civil rights, common to all citizens, upon the basis of race, and to place in a condition of legal inferiority a large body of American citizens now constituting a part of the political community called the
Page 163 U. S. 564People of the United States, for whom and by whom, through representatives, our government is administered. Such a system is inconsistent with the guarantee given by the Constitution to each State of a republican form of government, and may be stricken down by Congressional action, or by the courts in the discharge of their solemn duty to maintain the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding.
For the reasons stated, I am constrained to withhold my assent from the opinion and judgment of the majority.
MR. JUSTICE BREWER did not hear the argument or participate in the decision of this case.
Bibliography BIBLIOGRAPHY 13th. 2016. Film Directed by Ava DuVernay. United States of America: Netflix.
Anon., n.d. History. Online Available at: http://www.history.com/this-day-in-history/slavery-abolished-in-americaAccessed 18 January 2018.
Carroll, L., 2016. How the war on drugs affected incarceration rates. Online Available at: http://www.politifact.com/truth-o-meter/statements/2016/jul/10/cory-booker/how-war-drugs-affected-incarceration-rates/Accessed 25 January 2018.
Chan, A. F., 2015. The Huffington Post. Online Available at: https://www.huffingtonpost.com/angela-f-chan/america-never-abolished-slavery_b_6777420.htmlAccessed 18 January 2018.
Childress, S., 2014. Frontline. Online Available at: https://www.pbs.org/wgbh/frontline/article/michelle-alexander-a-system-of-racial-and-social-control/Accessed 25 January 2018.
Elk, M. ; Sloan, B., 2011. The Washington Post. Online Available at: https://www.thenation.com/article/hidden-history-alec-and-prison-labor/Accessed 11 March 2018.
Nold, C., 2016. ResearchWorks Archive. Online Available at: https://digital.lib.washington.edu/researchworks/bitstream/handle/1773/36279/nold-researchaward-paper.pdf?sequence=1;isAllowed=yAccessed 10 March 2018.
Pilgrim, D., 2000. What was Jim Crow – Jim Crow Museum – Ferris State University. Online Available at: https://ferris.edu/jimcrow/what.htmAccessed 26 April 2018.
Plessy v. Ferguson (1896) Supreme Court Reporter.
Smith, J., 2016. MTV News. Online Available at: http://www.mtv.com/news/2941010/the-slavery-loophole/Accessed 9 March 2018.
Wagner, P., 2018. Mass Incarceration: The Whole Pie 2018. Online Available at: https://www.prisonpolicy.org/reports/pie2018.htmlAccessed 25 January 2018.