Bell v. Maryland

v. MARYLAND. BELL et al. June Argued 14-15, 1963. Decided

No. 12. October With petitioners. Greenberg argued the cause Jack M. Motley, James Constance Baker him on the brief were Mit- Black, Jr., Jackson III, L. Juanita Nabrit Charles C. chell, Perry, J. Lincoln Bearing, Tucker R. Matthew Coleman, Jr., Bell, Jr., Jenkins, T. Derrick A. William Rauh, Poliak, Powell, Jr. Joseph Richard R. L. Louis H. John Bilard. and Reno, Jr.,

Loring E. Hawes Russell R. Assistant cause for Attorneys Maryland, argued General of Thomas respondent. With Mr. Hawes on the brief were Finan, C. Attorney Maryland, B. General of and Robert Murphy, Deputy Attorney General.

Ralph Spritzer, by special Court, argued S. leave of curiae, urging for the States, cause United amicus him reversal. With on the briefs were Solicitor General Cox, Marshall, Attorney F. Assistant General Louis Claiborne, Greene, Harold H. A. Glickstein Howard David Rubin. opinion Justice Brennan of the delivered the

Mr. Court.

Petitioners, Negro students, were convicted a Maryland participation state court as a of their result Hooper’s “sit-in” demonstration at in the restaurant City of Baltimore in 1960. convictions were based on a showing summary group record of 15 to 20 Negro including Hooper’s students, petitioners, went to engage restaurant in what their counsel as a describes protest” “sit-in because the restaurant would serve Negroes. The on “hostess,” Hooper, orders Mr. president corporation owning told restaurant, “solely on them, they basis of their color,” would not be served. Petitioners did not when requested leave they the hostess and the instead manager; went insisting took and refused tables, seats, leave, they Hooper police be served. On orders Mr. were called, they but advised that a warrant would be neces- sary they petitioners. before could arrest Hooper Mr. police then went to station warrants, and swore out petitioners were accordingly arrested. The statute under which the convictions were obtained Maryland trespass was the criminal law, § 577 Art. 27 of Maryland edition, Code, under a misdemeanor upon to “enter or cross the land, over premises or private property any person persons in having duly State after been notified the owner agent or his not do so.” The convictions were affirmed by Maryland the Court of Appeals, 227 Md. 302, A. 2d 771 (1962), granted and we certiorari. 374 U. S. 805.

We do not reach questions the that argued have been under the Equal Protection and Due Process Clauses of the Fourteenth appears Amendment. It signifi- a cant change has taken place in applicable law of Maryland since these convictions by were affirmed Court of Appeals. Under this practice Court’s settled such circumstances, judgments must consequently be vacated and reversed and the case remanded so that state may court consider the effect of the supervening change in state law.

Petitioners’ convictions were affirmed Maryland Court of Appeals January on 1962. 9, Since 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 Hooper’s of presi- dent and hostess refusing them service because of their 8, race. On June City of Baltimore enacted its Ordinance No. 1249, adding § 10A to Art. 14A of the ordinance, City (1950 ed.). Baltimore Code enactment, date of its took effect from the its terms places of of Baltimore prohibits operators owners and deny- from including restaurants, public accommodation, of because any person or facilities to ing their services appli- law,” accommodations “public his race. A similar County though and Baltimore City cable to Baltimore adopted by counties, of the State’s other some Art. 49B Md. Code 29,1963. on March Legislature State on June This statute went into effect (1963 Supp.). 11§ Act, 4 of the Acts c. 1, 1963, provided by as § provides The statute that: operator place unlawful for an owner or of

“It is employee agent accommodation or an or public race, creed, owner or because operator, said origin any person, refuse, national color, or deny person any of the from, withhold or to such priv- accommodations, facilities advantages, For ileges place public such accommodation. accom- purpose subtitle, place of this motel or any hotel, restaurant, inn, modation means commonly recognized an known or establishment regularly engaged providing sleep- in the business of for a ing serving both, or accommodations, food, open general and which consideration, public . ...”1 Mary Another law enacted the accommodations was Legislature 14, 1964, signed by

land on March the Governor on April 7, quoted provision This the from statute re-enacts gives eliminating application, the 1963 enactment and statewide go county into the exclusions. The new statute was scheduled to 1, 1964, operation apparently sus effect on June but its has been pended by filing petitions seeking Md. the of a referendum. See Const., XYI; Sun, May 31, 1964, p. 1. Mean Art. Baltimore col. while, City law, ordinance state both the Baltimore applicable City, Hooper’s of which to Baltimore where restaurant are located, remain effect. con- petitioners’ from these enactments that It is clear entering premises Hooper’s or over the of crossing duct so being after notified to do because restaurant today; their would a crime on the contrary, race not be Maryland the law Baltimore and of now vindicates of a recognizes their conduct and it as exercise right, directing prohibition the law’s not at but at the them manager who deny restaurant owner them seeks service because their race. Maryland

An examination of indicates decisions under the common law Maryland, supervening enactment these abolishing statutes the crime for which petitioners Mary- were convicted would cause the land of Appeals Court at time to reverse convic- tions and order Maryland the indictments dismissed. For follows the universal common-law rule that when the legislature repeals a criminal statute or otherwise removes from State’s condemnation conduct was formerly criminal, requires deemed this action the dismissal of a pending proceeding criminal charging such conduct. The applies any rule proceeding such at the which, time of supervening has not legislation, yet reached final dis- position in the highest court authorized review it. State, in Keller v. Thus, 12 Md. 322 (1858), the statute under the appellant had been indicted and con- repealed legislature victed after case had argued appeal been on of Appeals the Court but before although decision, repeal that court’s brought was not until judgment the notice the court after the had affirmance been announced. The appellant’s sub- sequent judgment motion to correct the was granted, and judgment id., was reversed. The court explained, 325-327: a party is well settled,

“It cannot be convicted, law may after the under which he prosecuted has although may been the offence repealed, have been

231 prin- . . . The same repeal. before the committed expires or repealed, the law is where ciple applies judg- from on a writ of error the appeal pending an ain judgment . . The of an inferior court. . ment as final and con- cannot be criminal cause considered notwithstanding every removal intent, clusive the so, If superior court. this were of the record to suing taking appeal no or there would be use the if the re- out a of error. . . . And so law be writ appeal error, judg- pealed, pending or writ the decision must be reversed, ment will be because final with the law at accordance time judgment.” Maryland rule court has since been reaffirmed State, number of occasions. Beard v. 130, 74 Md.

on State, 49 Smith (1891); 21 A. v. Md. 700, 702 45 135, Gambrill, 12 506, 10, (1876); State v. 513, 81 A. 115 Md. Clifton, 703, 177 10 A. 2d State (1911); 572, 574, v. Md. (1940).2 704 recognized consistently applied The rule has also been 103, Peggy, 1 Thus in States v. Schooner

this Court. United Cranch 110, held: Chief Justice Marshall appellate general province an court is

“It is in true that the only enquire judgment whether a when rendered was erroneous subsequent judgment But before decision or not. if appellate positively changes court, a law intervenes and obligation obeyed, governs, law must denied. rule which its constitutional, ... of no court which can If the law be I know obligation. the court must decide its ... such a case contest necessary judg- according existing laws, if to set it be aside a rendered, rightful but be affirmed but in ment, when which cannot judgment law, must be set aside.” violation Maryland States, 283; v. 281, v. See also Yeaton United Cranch 552; Tynen, Co., How. Baltimorе & R. United States O. Reisinger, 401; 88, 95; States v. 128 U. S. United Wall. United Massey States, Chambers, 217, 222-223; v. United States v. 291 U. S. 291 U. S. 608.

It is true present that the factually case is distinguish- able, legislative since here the abolition the crime for petitioners were convicted after occurred rather than before the decision of the Maryland Court Appeals. But that fact would seem irrelevant. For the purpose of applying Maryland the rule of the common law, appears only question the is whether legislature acts before the affirmance of the conviction becomes final. present case the judgment is yet final, for it is on direct review in this Court. This would thus seem to be a case where, Keller, change of law has “pending occurred an appeal on a writ of error from judgment of an inferior court,” and hence Maryland where the of Appeals upon Court remand from this Court would render its decision “in accordance with the law at the time of final judgment.” It thus seems that Maryland Court of Appeals would take account of the supervening enactment of city state accommodations laws and, applying the principle that a statutory offense which has “ceased longer exist is no punishable all,” State, Beard v. supra, 74 Md. 130, 135, 21 A. 702 (1891), would now re- verse petitioners' convictions and order their indictments dismissed. Maryland common law not, however, only .is

Maryland law relevant to the question of the effect of the supervening upon enactments these convictions. Maryland a general has saving clause statute which in certain circumstances “saves” state convictions from the common-law effect of supervening It enactments. is thus necessary to consider impact of that upon clause present situation. The clause, Art. 1 Md. Code 3§ (1957), reads as follows:

“The or the repeal, repeal and re-enactment, or the revision, amendment or consolidation any statute, or of any section or part of a section any statute, release, not have effect shall criminal, civil or in whole or modify change, or alter, extinguish, either civil or liability, forfeiture any penalty, part, incurred under have been which shall or criminal, re- unless the part thereof, or statute, section such amend- revising, re-enacting, repealing pealing, provide; so expressly ing consolidating act shall or repealed, so part thereof, statute, section such or consoli- revised, amended repealed and re-enacted, in remaining and held as still shall be treated dated, all any proper and purpose sustaining for force the or or civil proceedings prosecutions, actions, suits, for- penalty, for the criminal, enforcement such of sus- purpose or well as the liability, feiture or which can or taining any decree order judgment, in may actions, or made such entered rendered, be inflict- prosecutions imposing, suits, proceedings or liability.” ing declaring or penalty, or such forfeiture Upon clause and of the relevant examination of this are far from we policy considerations, state case law and persuaded Appeals that the Court of would Maryland these convic- hold the be to save applicable clause to be By terms, appear tions. its the clause does not applies only It applicable present all to the situation. “repeal re-enactment,” “revision,” to the and “repeal,” or any part or statute “amendment,” “consolidation” wrought upon trespass The effect the criminal thereof. supervening accommodations laws public statute the none of properly would seem to be described these only arguably apply could even are terms. The two that But nor “repeal” city and “amendment.” neither gives accommodations enactment public the state legislature slightest indication considered itself that “amending” trespass or law. “repealing” to be Nei- any way trespass law, refers in to the ther enactment prior is characteristically being done when statute as is or This repealed amended.3 fact alone raises a substan- possibility saving inap- tial that clause would be held might plicable, narrowly for the clause be construed— derogation and especially since of the common law is requiring “repeal” this is a criminal since сase—as that designated “amendment” supervening as such itself.4 statute

The public absence of such terms from the accommoda- significant recognized tions laws more when it becomes is upon trespass effect of these enactments quite different statute from that of an “amendment” Thus the statewide accommodations law enacted 1, supra, repeal see re-enact, note is entitled “An Act to with ,” Act, amendments . . . provides expressly the 1963 at several points portions that certain Act—none of which here repealed.” “hereby enactment, relevant —are But like the City ordinance, 1963 enactment and the Baltimore ref contains no trespass law, erence whatever to the less a much statement being any “repealed” respect law is or “amended.” 4 Maryland saving meager case law under the clause is any light present question. sheds little if on The clause has been only 1912, construed twice since its in enactment case neither directly Clifton, 572, seems relevant here. State v. 177 10 A. Md. (1940); Kennedy, (1954). 412, 2d 703 State v. 204 Md. 104 A. 2d 632 cases, ignored. In two other the clause was State v. Bond American Co., ing 268, (1916); State, 128 Md. A. 97 529 Green v. Md. (1936). apply 183 A. The failure to the clause in these cases was explained by Appeals the of case, supra, Court in the Clifton Md., 576-577, 2d, at 10 A. at on basis the that “in neither of proceedings appear any penalty, those did forfeiture, it that or lia bility actually had may been incurred.” This narrow indicate a clause, construction of the language since the of the clause would applied seem to have to both Also cases. indicative of a narrow Appeals construction is the Kennedy statement of the of Court in the case, supra, saving “merely that clause interpretation, is an aid to stating general against repeals implication rule specific in more Md., form.” 204 417,104 2d, Thus, A. at 634. if the case law has any pertinence, supports it a saving narrow construction of the clause inapplicable hence a conclusion that the clause is here. These “repeal” a in the usual sense. enactments even or one an ordinary “repeal,” manner of even do not —in the formal or only rather than technical-—(cid:127) is substantive that formerly liability that had merely erase the criminal prem- to or crossed over the persons attached who entered of not being a after notified to because ises of restaurant upon persons race; further and confer such they go their making it carry right conduct, on such an affirmative to notify proprietor or to for restaurant owner unlawful of Such a because their race. substitu- them to leave crime, versa, possibly a a a of for and vice tion might thus well unique phenomenon legislation; categories of falling the routine be construed as outside “repeal.” “amendment” and sup- to would seem

Cogent policy state considerations in the legislative policy a embodied port such view. much appear here would to be supervening enactments old embodied strongly opposed more that “amend- usually true in case an enactment than is unlikely “repeal.” consequently would seem ment” It saving apply legislature intended the clause application situation, where the result its persons punishment whose would be the conviction only from the statute books “crime” has been erased leg-A officially new enactments. but vindicated making a law public accommodations passed islature deny probably service on account race it unlawful prosecuted and desire should persons did not still place seeking “crime” of service from punished it on account accommodations which denies no saving raises language Since clause race. these con- ruling policy accordance with barrier long indeed con- siderations, should hesitate before we Appeals defi- cluding Maryland that Court of would saving to save these nitely applicable hold the clause convictions.

Moreover, “repeal” even if the word or “amendment” appli- saving prima deemed to make clause facie were not cable, that would be the end the matter. There possibility public would remain a substantial falling accommodations laws would be construed as within clause’s . . . exception: repealing “unless the act expressly shall con- provide.” only policy so Not do the an support interpretation, siderations noted such above operative language but the of the accommo- state finding dations for a enactment affords solid basis “expressly provide” it does so within the terms saving speak clause. criminal Whereas most statutes example, trespass the future for statute see, tense — “Any person here Art. Code 577: involved, § 27 Md. persons upon who shall enter or cross over . . .”—the speaks present state enactment here in the tense, provid- ing that “it operator is unlawful for an owner or . . .” . In very Maryland this context, the Court of Appeals has given effect to the difference between the pres- future and State, ent tense. Beard v. supra, 74 Md. 21 A. 130, court, in holding that a supervening statute did implicitly repeal the former law and thus did not require dismissal of the defendant’s conviction under that law, relied on the fact that the new used statute the word “shall” rather than “is.” From the word court concluded that “The obvious intention of Legislature passing it was, not to interfere past with offences, but merely penalty to fix a ones.” 74 Md., future 21 A., Conversely at 701. here, present the use of the instead of the more usual may very future tense possibly held the Court of Appeals, especially view the policy involved, considerations to constitute an “express provision” by legislature, within the terms of the saving clause, it did intend its new enactment apply past as well as future conduct —that it did not saving intend the clause to be applied, derogation of as the continued permit so to rule, common-law a of accused punishment persons of prosecution abe now declared to legislature which the has “crime” right. arguments sup- Maryland then, a matter of law,

As saving clause would not a conclusion porting. quite convictions seem substantial. to save these apply Mary- of question to decide this us, not for however, It is Maryland how or to a conclusion as to law, land reach a course would Appeals would it. Such of decide Court of deference state with our tradition to be inconsistent ignore Nor is it for us to on of state law. questions courts to de- change proceed law and supervening state presented by this questions cide the federal constitutional which, to be- questions To do so would be decide case. now court would possibility the state cause necessarily presented for are not convictions, reverse the our inconsistent with Such a course would be decision. advisory inability opinions, constitutional to render refusing a federal consequent policy with our decide might in a a state case that controlled question Memphis, See Murdock 20 Wall. ground decision. v. To avoid issues of pitfalls 634-636. these let —to preserve our law be decided state courts and state ques- policy avoiding gratuitous decisions federal long practice a uniform where tions —we followed have a per- raises law supervening question event state taining prac- on here. That pending case review is to and reverse judgment tice vacate remand may so it court, the case to the state reconsider it light supervening change state law. authoritatively rule was stated and applied Comm’n, ex Missouri rel. Wabash R. Co. Public Service supervening S. a case where the 273 U. event was — legislation is here —enactment new state asserted change law under had the case been decided Court, for the Mr. highest Speaking court. by the state said: Justice Stone a state

“Ordinarily on writ of error to this Court only questions federal and does not court considers law. But questions of state where questions review arising pre- of law after the decision below are state are not thus re- here, appellate powers sented our supervened Either because new facts have stricted. change in since or because of a judgment below, the appellate ju- in the exercise of its law, Court, the aris- risdiction, may questions consider the state thus ing and either decide them or remand the cause action courts. The mean- appropriate the state ing question and state in are effect the statute now primarily for court. the determination the state may questions, decide it is While this Court these obliged nature, do and in we so, not to view their appropriate deem it to refer the determination to may state court. the order that the state court be free to consider and make question proper dis- position it, aside, below should be judgment set a appeal might judg- since dismissal of this leave the as rendered. The judgment ment enforced to accordingly reversed and cause remanded for fur- omitted.) proceedings.” (Citations ther 273 S.,U. 131. Alabama, Similarly, Patterson v. Mr. U. S. Hughes Chief Justice stated rule as follows: have frequently “We held that in the exercise of appellate jurisdiction our we power only have correct error under judgment review but disposition make such the case as justice requires. in determining what justice require, And does any Court is bound consider change, either fact judgment supervened since the which has law, or in change, may recognize such We was entered. judgment aside the result, by setting may affect may court remanding so that the state the case is not said to do this act. have be free to We term, the deci- any sense of the proper to review, question, upon a non-federal sion of state court arising a matter deal with only appropriately but having bearing upon the judgment since its atS., of the case.” 294 U. right disposition R. Gulf, C. & S. F. applying rule, see For cases other Kansas, Dorchy v. Dennis, 503, 505-507; v. U. S. Co. Tennessee, 322 U. 289; S. U. S. 286, Ashcraft 155-156.5 law su- Maryland raised here question city accom-

pervening enactment the state clearly requiring laws falls within the rule modations and remand the judgment us to vacate reverse the we Maryland Appeals. case to Indeed, the Court involving have this in other situations followed course saving a clause was provision, state or similar where it considerably probable more than it is here the State despite super- would its to stand the judgment desire vening Delano, 226, of law. Roth change In v. 338 U. S. light judgment the vacated and remanded the in Court supervening repeal applicable of the State's the statute despite presence repealer saving of a clause the the was here, clearly applicable unlike the one which, Kansas, Dorchy supra, In the terms. v. 264 U. S. holding supervening event was this Court that an- 5 Metzger Parrott, Motor Car Co. v. New 36; See 233 S. also U. Wilson, York ex Tax Comm’n rel. Whitman State 688; v. S. 318 U. v. Cott, Delano, 511; Van Roth v. 231; Williams U. S. 338 U. S. Georgia, Trunkline Gas Co. v. Hardin 375, 390-391; S. U. County, 375 U. S. portion of

other the was same state statute unconstitu- tional, question Dorchy’s whether conviction could stand nevertheless. The state statute had a sev- erability provision seemingly ques- which answered the tion “If providing any or conclusively, provi- section by any sion this shall found shall act be invalid it court, conclusively presumed this act would have been passed by legislature such without invalid section provision . . . .” Nevertheless, Court va- unanimous. cated and judgment reversed remanded the case, so that question could be decided court. state Mr. Justice Brandéis said, U. at 290-291: S.,

“Whether provision § 19 criminal under which [the stood Dorchy is so interwoven with the convicted] system held invalid that cannot section stand a question interpretation is alone, and of legisla- tive intent. . . . Section 28 of the act sever- [the ability . provides . . a rule of construction clause] may determining sometimes aid in that intent. an merely; But aid not an inexorable command. “The task of determining the intention of the state legislature in this like respect, usual function interpreting a state statute, rests primarily upon state court. Its decision toas of a severability provision is conclusive upon this Court. ... coming cases from the state courts, Court, of a controlling absence state decision, may, pass- ing upon the claim under federal law, the decide, also, question the of severability. But it not obliged is to do so. The situation may be such toas ap- make it propriate to leave the determination question of the to the state court. We think that course should be in followed this case.

“. . . In order may that the state pass upon court this in question, its judgment case, which was case], other decision [the before our rendered is judgment end the ... To this be vacated. should “Reversed.” severability clause a fact that the immaterial Except and involved, holding the saving a clause than rather precisely Dorchy are of the case language operative judg- to set aside the need point Indeed, here. cоmpelling here, more is case even remand ment and literally appli- saving is not Maryland clause since the and state since accommodations laws cable to the will inference that it strengthen the policy considerations Dorchy, applica- Here, as inapplicable. be held question a conviction “is save bility of the clause to it and hence legislative intent,” and of interpretation question the determination “appropriate leave is Maryland saving if clause court.” Even to the state that, the fact would remain literally applicable, were a rule construction “provides Dorchy, the clause determining aid in intent. may sometimes an inexorable merely; an aid command.” But has stated that Maryland Appeals Court an “merely Maryland saving clause is likewise aid Kennerly, supra, v. interpretation.” 4, State note at Md., 104 A. 2d, only of state question this case involves not short, arguable thus has open

law an one. This Court but Gulf, recognize situation,” C. & “duty changed Dennis, supra, F. Co. atS., and, S. R. U. reversing judgment remanding vacating and meaning case, give principle effect to the “the question primarily of the state statute now in are effect for the determination of the state court.” Missouri ex rel. Comm’n, R. Public supra, Wabash Co. v. Service at 131. S.,U. Court of Maryland judgment

Accordingly, case to that Appeals should be vacated and the remanded judgment to this end court, and remanded.

Reversed with whom Mr. Justice Gold- Douglas, Mr. Justice berg reversing for respects II-V, concurs as Parts directing dismissal of indictment.

I. controversy. I reach of this issue is the merits ripe petitioners, for decision and who have convicted been asking Hooper’s for entitled service are restaurant, complaint to an answer to their here and now. day studiously On this last we avoid Term, decision the basic issue accommo- dation Amendment, remanding under the Fourteenth light case to the state for court reconsideration an issue of state law. argued 15,

This case was October 14 and 1963—over eight ago. months The record of the case is simple, guidelines the constitutional marked, well the precedents Though marshalled. preparation the Court is divided, of opinions laying bare the differences does not require even months, eight. two alone majority let Moreover, reach the merits of Why the issue. then minority should a prevent resolution of the differing views?

The laws for vacating relied on and remanding were 8, 1962, enacted June long March 29, be- 1963— argument. fore oral We did grant indeed not certiorari until June 1963. Hence if we were really concerned with this state law question, we would have vacated and light remanded reconsideration in of those laws on By June now we would have had an answer and been able to put our into decision the mainstream of the law at this parties critical hour. If the had been con- follow that that we have asked they might too cerned, merely new law adverted to the Maryland course. argu- granted. At the be why certiorari should not show with concerned at our conferences we were ment and Now frivolous. it being deemed issue question, that the question. facing constitutional to avoid the is resurrected is con- issue; Congress has to the The whole Nation face municipalities have had considering it; scientiously some concern; law enforcement order of their first make it South; as well the deeply as implicated, officials are North unrest, riots, demonstrations, is at root of question the issue in other and in various areas. The words violence public mute, the attention. Yet we stand consumes pretense. basic an avoiding decision of issue obvious the Negro white restau- The clash between customers and protection by claims the clear; group rant owners is each and the Amendment as Constitution tenders Fourteenth justification for action. Yet we leave resolution of its if our voice were the when, heard, the conflict others, and for would Congress issues for the become clear in troubled precise. and The Court was created to sit as peaceful days. as well times thought adjudication is a of our of There school delayed postponed should be constitutional issue many has stout- long possible. as That school had ingenious have times been defenders means used pronouncements. judge- Yet avoid constitutional to аvoid constitutional rules, made fashioned decision forget what Marshall largely Chief Justice questions, Fletcher Peck, Cranch 137-138: wrote for respect might “Whatever have been felt disguised state is not to be sovereignties, appre- viewed, framers the constitution with some might grow violent acts which out hension, the feelings moment; people and that adopting States, instrument, United have a determination to manifested shield themselves property their from the effects of those sudden and strong passions exposed. to which men are legislative restrictions on power states are obviously sentiment; founded con- and the stitution of may the United States what contains rights deemed bill of people of each state.” Much of our history has shown that Marshall said what of legislative power encroachment on the people the also of true the encroachment of judicial as where branch, state courts pro- use unconstitutional cedures to people convict or make criminal beyond what is the reach of the States. I think approach our here should be of Marshall in Marbury Madison, 1 Cranch 137, 177-178, where the Court spoke with authority though there was an obviously easy way to avoid saying anything: is emphatically

“It province duty judicial department say what the law is. Those who apply particular the rule to must of neces- cases, sity expound and interpret that rule. If two laws conflict with each other, the courts must decide on operation of each.

“So if a law in opposition to the constitution; if both the law and the constitution apply a par- ticular so case, that the court must either decide that case conformably to law, disregarding the consti- ; tution or conformably to the disregard- constitution, ing the law; the court must determine of these conflicting governs rules the case. This is of the very essence of judicial duty.” We have in case a question this that is basic to way our of life and fundamental in our constitutional scheme. No question preoccupies the country more than one; way one presses decision plainly justiciable; it is should people it. The another; we should resolve when occupy other forums, filibusters that when know authority be- clash great, when the are oppressions can they still severe, and the State is individual tween as we do default, When in the courts. we get justice Nation is life of the of law today, prestige weakened. I merits; and vote to I reach the

For these reasons outright. of conviction judgments reverse II. according those who would case, in this

The issue may prejudices” person’s “personal whether a affirm, is and whether property in which he his way dictate the uses “per- to enforce those he can enlist the aid of the State respect, all is not the real prejudices.” sonal With did not corporation that owns this restaurant issue. The Negroes “it” did not like service to these because refuse Negroes. “it” refused service because The reason running a money by thought “it” could make more “it” segregated restaurant. president case, Hooper, G. Carroll instant tes-

corporate owning involved, chain the restaurant here concerning episode gave that rise to these tified wholly convictions. commercial ones: The reasons were people “I at the with him and two other set table him why my policy and talked to reasoned him I had yet integration not one of and told and half of col- employees two hundred them were I thought I much of them as did the white ored. as my I if employees. invited them back kitchen I they’d go like to back and talk to them. wanted my my to prove policy, personal to them wasn’t prejudice, we were that I had valuable colored not, thought and I employees just as much of I them. leaders, told them that with to reason these tried deciding they my who long customers were as mercy my with, I’m customers. to at the want eat they they I’m do to trying to what want. If fail my in, people paying expenses, come are these not go back and my They didn't want talk bills. every employees because one them my colored sym- with sympathy are in me that we’re they their with what pathy objectives are, with what added.) trying (Italics are to abolish . . . .” most of us, as in the sit-in cases before Here, “personal prejudices” refusal of did not service reflect but today segregated business reasons.1 Were hold that we racial policies whose restaurants, were enforced State, violated all Equal Protection Clause, restaurants would on an equal footing and the given reasons in this companion and most cases refusing service to Negroes evaporate. would Moreover, when corporate restaurateurs are involved, “personal whose prejudices” being protected? are The stockholders’? The directors’? The officers’? The managers’? The truth I that the is, think, corporate making interest is in money, protecting “personal prejudices.”

III. I questions leave those part another opinion this and turn to an even more basic issue.

I now assume the issue is one stated those who would affirm. The posture case deals with a relic of slavery institution that has cast a long —an shadow across land, resulting today in a second-class citizenship in area accommodations. Appendix See II. Appendix See I. Amend- and Fifteenth Fourteenth, Thirteenth, The we the ... mean purpose had pervading ments “one and firm establish- security the race, slave freedom the newly- of freedom, protection and the ment of that of those oppressions from and citizen made freeman over dominion unlimited formerly who had exercised Cases, 16 Wall. Slaughter-House him.” were Negroes segregated Amendments, Prior to those except public use of accommodations and disallowed the To affirm serve them. unless owners chose old Negroes remit their judgments these would those by them there keep allow the States to status of their and their police judiciary. force We deal here with accommodations —with they like and to use right of to eat and travel as people serving only facilities claim to whose existence public. the President said in his State of What Message January on states constitu- 8, 1964, Union color, regardless tional all Americans, race by government: all equally to be treated branches by stand side “Today Americans all races side in Berlin and Vietnam. by

“They died side in Korea. side work “Surely they can and eat travel side country.” own side their for slavery; were a substitute Black Codes Black Codes;3 was a for the segregation substitute Sequel Ap Fleming, The For accounts of the Black Codes see pp. 94-98; Cong., 2d pomattox (1919), Sen. Doe. No. 39th Ex. History Sess.; Oberholtzer, A I of the United States Since They (1917), pp. 126-127, 136-137, 175. are summarized War Civil The Growth of the American Commager, as follows Morison and Republic (1950), pp. 17-18: relationships provided for between whites

“These black codes harmony with the whites and the realities —as understood blacks They theory. upon the them —rather than with abstract conferred a the discrimination in sit-in cases is relic of these slavery.4 says

The Fourteenth Amendment “No State shall make any or abridge privileges law which enforce shall fairly privileges, gave freedmen extensive them the essential contract, sued, property, citizens to sue and be own and inherit testify court, provision and and made some for education. no eligible instance were the freedmen made accorded vote or for juries, part they permitted testify against and most were for the not to alleged steady they white men. Because of their aversion to work required steady subjected occupation, were to have some and to special penalties Vagrancy ap- labor violation of contracts. and prenticeship especially harsh, readily were and laws lent themselves system peonage. penal to the pro- establishment of a codes arbitrary punishments vided harsher and more for blacks than for whites, permitted states some individual masters to administer corporal punishment ‘refractory Negroes servants.’ were not al- appear public places, lowed to bear arms or to in all and there were special governing laws the domestic relations blacks. of the In some closing every states occupation laws to the freedmen save domestic agricultural service, betrayed poor-white jealousy Negro of the codes, special artisan. however, provisions protect Most included Negro exploitation swindling. from undue On the whole the corresponded fairly closely black codes to the essential fact that nearly special they four million ex-slaves needed until attention were ready mingle in society equal free on more terms. But in such Mississippi states as clearly South Carolina and there was evident keep permanent a desire position the freedmen in tutelage, if peonage.” not of slavery” recently Other “relics have come before this Court. Alabama, In Hamilton judgment S. we U. reversed a contempt imposed Negro on a witness under these circumstances: Rayburn:

“Cross examination Solicitor “Q. your please? name, What is Mary “A. Miss Hamilton. “Q. Mary, you you I were arrested —who were arrested believe—

by? My “A. name Miss correctly. Hamilton. Please address me “Q. you by, Mary? Who were arrested — n question- I “A. will answer a Four- States.” The immunities of citizens United every who is born person also makes Amendment teenth fourth third or and there is no second or citizen; here a Rusk, 377 citizenship. g., e. Schneider v. See, class of U. S. As citizenship. of national

We deal here with incidents 71- Slaughter-House Cases, 36, in 16 Wall. stated Thirteenth, rights resting on the 72, concerning the federal and Amendments: Fourteenth, Fifteenth impressed . . no can fail to be with the one “. one lying in at the pervading purpose all, found them and which none of them foundation of without each, suggested; would have been even we mean the free- and firm race, security dom of the slave establish- freedom, protection ment of that and the oppres- and from newly-made freeman citizen formerly sions of who had exercised unlimited those him. It is fifteenth only dominion over true that amendment, negro by speak- in mentions the terms, ing slavery. color it is just of his and his But true each of the other articles to was addressed designed grievances remedy to race, them as the fifteenth.”

“By Attorney Amaker: The witness’s name is Miss Hamilton. —your question correctly. “A. until I am addressed question. “The Court: Answer the “The I will not them I Witness: answer unless am addressed correctly. contempt

“The Court: You court— are “Attorney Conley: your Your Honor— Honor — contempt court, you “The Court: You are in of this are sen- days jail fifty tenced to five and a dollar fine.” slavery Additional relics of are mirrored in recent decisions: Brown v. Education, (segregated Board schools); S. 483 Johnson U. v. Virginia, (segregated courtroom); Peterson U. S. 61 v. Green ville, Louisiana, (segre 373 U. S. and Lombard v. 373 U. S. 267 gated restaurants); Wright Georgia, v. 373 U. S. and Watson v. Memphis, (segregated public parks). 373 U. S. 526 touching with the liberation

When we deal Amendments with from we deal “which owe people slavery, government, their existence the Federal its National Id., or its laws.” at 79. character, Constitution, its We regulation municipal are field exclusive might degrade where federal intrusion “fetter and governments by subjecting State them the control of Congress, in the exercise of powers universally heretofore ordinary to them of the conceded most and fundamental Id., at character.” has a judicial expand

There been the con- reluctance beyond tent citizenship of national racial discrimina- tion, voting rights, custody safe travel, marshal, hands of federal diplomatic protection Slaughter-House Cases, abroad, supra; the like. See Logan States, v. United 263; 144 U. S. United States Classic, 299; California, 313 U. S. Edwards v. 160; Dulles, U. Kent S. v. 357 U. S. 116. The reluc- tance has been due a of creating to fear constitutional refuges for a host of historically to. subject regu- Kentucky, lation. See Madden v. 309 U. S. over- Colgate ruling Harvey, 296 U. S. 404. But those fears have no relevance where we deal with here, Amendments guarantee whose dominant purpose towas the freedom of the slave race and a regime establish where national citizenship only has one class.

The manner in which right to places be served public accommodations is an incident of national citizen- ship and of travel summarized in H. R. Rep. No. Pt. 2, 88th 1st Sess., pp. Cong., 7-8:

“An official of the National Association Advancement of Colored People, testified before the Senate Commerce Subcommittee as follows: “ ‘For millions Americans this is vacation time. Swarms of families load their and automobiles trek country. across I invite the members of com- imagine darker in color themselves and to mittee plan gulf an auto from trip Va., coast Norfolk, from Mississippi, say, Biloxi. Or one Terre Haute, Ind., to S. or from Jackson- Charleston, C., Fla., to Tex. ville, Tyler, “ far you day? ‘How do drive each Where and under you your family what conditions can eat? they Where can use a rest room? you stop Can driv- ing a day after reasonable behind the wheel or must you you drive until a city reach where relatives or friends will you yours accommodate for the night? your Will children be denied soft drink or an ice cream they cone because are not white?’

“In response to Senator question Pastore’s as to Negro what the reply: must there was the do, “ you Where through travel might call what we territory you hostile your take chances. You drive you and you drive drive. stop You don’t where is a vacancy sign there out at motel at 4 o’clock in the afternoon and rest yourself; you keep on driving until city the next or the you next town where know somebody or they know somebody who knows some- body who can take you. care of “ way ‘This is the you plan it. “ ‘Some them go.’ don’t

“Daily permit we citizens of our Nation to be humiliated and subjected to hardship and abuse solely because their color.” As stated in part the first of the same p. 18: Report,

“Today, years more than 100 after their formal emancipation, Negroes, who up make per- over 10 cent of population, our are virtue of or an- one type other of discrimination not accorded rights, privileges, opportunities which are considered to and must be, be, the birthright all of citizens.” 252 creed, of his or color race, citizen because

When one any being as other citizen privilege is of treated denied the public accommodation, have classes of places of we being degrading one more than the other. citizenship, citizenship of That is at war with class created the one Thirteenth, Fifteenth Amendments. Fourteenth, Virginia, As in Ex parte 339, 344-345, stated U. S. against a judge where a federal indictment state dis- against Negroes criminating jurors selection upheld: great purpose

“One these amendments was to raise colored from race that condition of inferior- ity and in which had pre- servitude most them viously into of civil stood, perfect equality with persons all other within jurisdiction ‍​​‌‌​​‌‌​​​‌‌​​​​‌‌‌‌‌‌‌‌​​​‌‌‌‌​​‌​​‌​​‌‌‌‌​​‌‌‍They away States. were intended to all pos- take sibility oppression by law or of race color. because They were they really intended to what lim- be, are, power itations enlargements States and power of Congress.”

IV. problem case, and in the other sit-in cases before us, presented though is as it involved the situation of “a private operator conducting his own business on his own premises and exercising his own judgment” as to whom he will admit to premises.

The property not, involved is a man’s however, home yard his or even his property fields. Private is in- volved, but is property serving public. Goldberg myAs Brother it is a “civil” says, not a right, “social” right, with which we deal. Here it is restaurant refusing service to a Negro. But so far principle law are concerned it might just as a hospital well be re- 5Wright, Progress The Sit-in Report Movement: and Prognosis, Wayne (1963). L. Rev. (cf. Negro Simkins injured a sick or fusing admission to 959), 2d or Hospital, Memorial F. Cone v. Moses H. deny- or Negro, to a a bus refusing antibiotics drugstore a telephone company a or ing transportation Negro, Negro’s in a refusing telephone home. install we has no relation with which deal problem The The home of door of one’s home. opening closing or way in no dedicated to privacy, essence of course is the extending an invitation to the way in no use, country classical store like the public. businesses, Some rear, make the where owner lives overhead home. But such extension, speak, store an so facts of these sit-in have is not this cases little case. any property which we resemblance to institution customarily privacy. with associate Income Tax

Joseph Choate, argued H. who Cases (Pollock Co., v. Farmers’ Loan & Trust 157 U. S. 534), said:

“I ob- thought have that one of the fundamental government preservation of all civilized was the jects thought I private property. have very keystone upon that it was the of the arch government all and that once rests, civilized abandoned, everything danger. was at stake in 1820, That is what Mr. said at Plymouth, Webster and I all men supposed educated, civilized believed that.” A. theory

Charles Beard had the that the Constitution superb was “an economic document drawn with skill men property immediately whose interests were at stake.” An Interpretation Economiс of the Constitution of the (1939), p. thought United States 188. That school impetus would new from an receive affirmance of these (cf. ill- judgments. Seldom have modern cases 393) starred Dred decision, Scott How. so exalted rights. property suppression of individual We would property modern were to hold that the trend we reverse voluntarily serving public protec- the can receive state solely tion when owner refuses serve some because to they are colored. specific no in provision

There is the Constitution protects rights privacy of and enables restaurant owners to Negroes. “prop- refuse to The word service erty” is, indeed, Constitution, not often used though as a experience practice matter of we are com- to free enterprise. mitted The Fifth Amendment makes possible “private property” public only take use payment “just compensation.” on of quar- The ban on tering any soldiers in of peace, home time laid down by aspect right the Third of Amendment, is one privacy. The Fourth in its Amendment restrictions on searches and seizures also sets an aura of privacy around private interests. And the Due Process Clauses of the Fifth and Fourteenth lay Amendments down the com- person mand that no deprived shall be “of life, liberty, or property, process (Italics added.) without due of law.” From provisions these those who would affirm find emana- tions that lead them to the conclusion private that serving owner a restaurant pick can whom he will choose serve and his dining restrict room to only. whites

Apartheid, however, is barred the common law as respects innkeepers and common carriers. There were, be sure, criminal regulated statutes that the common call- ings. But the civil remedies were made judges who had no written constitution. on other We, hand, live under a constitution proclaims equal protection un- Why der the law. then, even absence a statute, apartheid should given constitutional sanction in the restaurant field? That was the I question asked in Lom- Louisiana, bard v. S. 267. I repeat it U. here. Con- stitutionally speaking, why should Hooper Food Co., Inc., Drug any or Stores—-or other establishment Peoples higher, on a more dispenses food or medicines —stand Greyhound sanctified Bus when it level than comes pick constitutional and choose its customers? show, The debates on the Fourteenth Amendment its my points purposes Goldberg Brother that one of out, grant Negro guarantees was to of the “the Post, duty good old common law.” at 294. The of com- mon carry regardless creed, carriers to all, race, color, part product genius inventive judges. Louisiana, S., 275-277. See Lombard 373 U. make law common law the body We should speak. Thirteenth and Fourteenth so to Amendments setting Restaurants the modern are as essential to trav- elers as inns and carriers. they public not much affected with a interest?

Are as right person right Is of a to eat less basic than his the protected California, in Edwards v. travel, we right S. 160? Does not a to travel in modern times U. materially accompany- shrink in value when there is no ing right in public places? to eat right any person irrespective

The of to travel interstate race, protected by or color is the Constitution. creed, California, v. supra. Certainly right Edwards his to travel Certainly right intrastate is as basic. his to eat at important setting restaurants is as the modern the as mobility. right is, indeed, these times that practically indispensable to travel or either interstate intrastate.

Y. requirement equal protection, guar- like the privileges citizenship, antee of and immunities of is a command constitutional directed to each State. judicial' clearly State action is as “state” action as state Indeed, Shelley administrative action. we held in Kraemer, 334 1, 20, action, U. S. “State as that Fourteenth purposes for the

phrase is understood all power to exertions state Amendment, refers forms.” re- in state to enforce

That case involved suits courts property of residential strictive covenants deeds agreed that it should not be used whereby the owner was any except Caucasian. There occupied by person is, That regulating the matter. no state statute use by legislative not authorized enactment had State property in residential transac- of restriсtive covenants any regulation administrative ; tions nor there Only the of the State were involved. We matter. courts opinion Jus- held without dissent in an written Chief within action tice Vinson there was nonetheless state meaning Fourteenth Amendment: time of "The short of the matter is that from the until adoption of Fourteenth Amendment ruling of present, it been the consistent has to which Court the action of the States action of state Amendment has reference includes in con- judicial Although, courts and state officials. dif- Amendment, of the Fourteenth struing the terms expressed to time been ferences have from time may be particular types of state action to whether provi- prohibitory said to offend the Amendment’s court sions, suggested it has never been that state operation pro- from of those action is immunized act is that simply judicial visions because the Id., at government.” of the state branch a Shelley of the case there was to be sure At the time guaranteed Congressional Rights Act that all Civil citizens and sell right purchase property “as is en- the same Id., at 11. by white citizens.” But the existence joyed statutory right, like the existence of a under of that is or determining what for is no criterion Constitution, meaning of the action within “state” what is not ac- of “state” conception The Amendment. Fourteenth a to which degree light in been tion has. considered right. of a person depriving in participated has State ample in has been considered action alone “Judicial” only place action” took cases. “state Thus, hundreds of coerced involving the use of in judicial action cases (e. Florida, 227), S.U. g., Chambers v. confessions pro- in judicial, indigents equal protection denial to (e. Illinois, 351 12), S. ceedings g., U. Griffin pub- contempt by courts in punishing of state action 252). California, 314 S. g., Bridges v. U. (e. lication Negroes was as author- against these Maryland’s action way or another in one any case where State itative here policy The policy. full force behind a puts its accommodation; places segregation prose- her police, her policy with Maryland enforced and her courts. cutors, Shelley v. property residential owners owner of corporate as was the concerned,

Kraemer were possible over a decrease Maryland restaurant, allowed to Negroes if were property the value of white Kraemer that Shelley v. It was testified enter. purchasers: Negro loans than got better bank purchasers 4-family Obert, a north bought I Well, “A. and I through party, a straw year ago flat, about larger deed of a much first to secure was enabled present I have been able to do at than would trust on Garfield. home mean: it’s you I understand what

“The Court: finance? easier to through white. to finance That’s Yes,

“A. easier knowledge. common owned a property if is white

“Q. You mean to finance it? person it’s easier larger better loans. loans, can “A. White secure I a loan.” have 5% Shelley case to v. companion a Sipes,

In McGhee v. Kraemer, a realtor testified: people influx of colored

“I seen the result of have neighborhood. a There a de- moving into white is with, general run down pression of values to start I a time afterwards. neighborhood within short peo- colored have, exception. seen one however, Scotten, kept up south of Tireman have their ple on property pretty good enjoyed them. As a result particular family moving people of this in the they willing panic-stricken section are rather are only thing keeping from to sell—the them away throwing giving their stuff on the market and they they get can is the fact that think one two My in there out of own sales people colored there. family. . . . have been affected “I am familiar with at 4626 property Seebaldt, family fifty- of it with a and the value colored it is family and if hundred, two there was no colored say say I would sixty-eight it I would hundred. price property.” thousand is a fair for that seven part covenant is in purpose While the the restrictive community protect the commercial values in a “closed” Gorewitz, (see Hundley App. D. C. 132 F. U. S. a 23, 24), 2d it at times involves more. The sale to may bring higher price than a to a Negro sale white. Maxwell, 448, 454, 196 See Swain v. 355 Mo. S. 2dW. having Negro Yet the resistance to neighbor as a strong. is often All-white or all-Caucasian residential preferred communities are often by the owners. in Hurd v. a area testified occupant An “white” Shelley v. case to companion another S. Hodge, U. Kraemer: in coming and you for

. we feel bitter towards . and peaceful very were breaking up our block. We bought that you there and we feel harmonious people it over to colored just to transact property we feel bitter it, naturally like and and we don’t you towards . . . .”

This added: witness mean complexion person

“A. The doesn’t anything.

“Q. complexion The does not? negro. is a “A. It is a fact that he “Q. negro may be, I so no matter how brown a see, to them? they are, you object no matter how white I want say “A. I would Mr. Houston. ... yes, my people.” with own color to live Shelley in its preferences The involved v. Kraemer and far the moti- companion personal cases were more than corporate managers present vations of case in the Negroes. Why should we they when declined service to in apartheid state courts enforce residential refuse to let areas of our cities let courts apartheid but state enforce in If a decree state action in restaurants? court is one case, Property heavily is in the other. so under- rights, equally are involved each case. scored, customer in a transitory; restaurant he comes is may family buys never return. The colored who keeps night day. house door is there for If next — “personal prejudices” are not to be criterion in one they be in the put case should not other. We should these Shelley Kraemer, with holding restaurant cases line requires that what the Fourteenth restric- Amendment requires also from covenant cases it restaurants. tive and lunch restaurants Negroes Segregation slavery. It is a relic of of America is parts counters of a denial citizenship. It badge of second-class and of the citizenship immunity of national privilege Amend- Fourteenth guaranteed by the protection equal When the state abridgment by the States. against ment the state courts unite to prosecutor, and the state police, slavery, renouncing that relic Negroes convict the Fourteenth Amendment. “State” violates outright, judgments I would these conviction reverse asking Hooper’s for service in restau- Negroes as these demanding was their constitutional only rant were what right. I TO OPINION OF MR. JUSTICE

APPENDIX

DOUGLAS. eating Term involving places sit-in cases last all Term, practically or lunch counter this restaurant constitutional vindicated below owners whose were Only two 20 are corporations. are out of the before us as III of these noncorporate, Appendix shows. Some corporations small, privately are owned affairs. Others regional many are national or with large, businesses stockholders: Co., operating

S. H. Kress & 272 stores in 30 its States, stock being listed on the New York Stock Exchange; McCrory 1,307 being with Corporation, its stock stores, listed on New York Exchange; Newberry Stock J. J. with 567 stores of which 371 Co., food, serve its stock be- ing listed on the York Exchange; New Stock F. W. Wool- worth Co., being with its also on 2,130 stores, stock listed the New York Stock Exchange; Drugs, having Eckerd stores with its stock traded over-the-counter. F. W. has 90,000 Newberry Woolworth over J. stockholders; J. about 8,000; McCrory over H. 24,000; S. Kress over 8,000; Drugs 1,000. Eckerd about Appendix “eating places,” At national level most partnerships. proprietorships individual shows, IV are form; and even corporate number are But substantial eighth an they perhaps are though in numbers larger a much they up make in business done others, total. percentage metropolitan D. living Washington, C.,

Those incor- hotels are know that it is true in that area —the area New York Johnson listed on the porated; Co., Howard 15,000 has restaurants and over Exchange, Stock stockholders; stockholders; Shoppes, Inc., 4,900 Hot has (involved in District Columbia Thompson Co. Co., Thompson 100) S. has 50 restaurants U. is listed country 1,000 with over stockholders and its stock Peoples Drug Stores, on York Exchange; the New Stock Exchange nearly 5,000 has listing, with a New York Stock (1963 ed.). Moody’s stockholders. See Industrial Manual in a criminal trial All the sit-in cases involve contest prosecu- Negroes sought between who state service trespass against who enforced laws judges tors and state convictions, corporate them. The of these beneficiaries by rights those constitutional were vindicated these whose parties are not to these suits. The bene- convictions, Food a ficiary present Hooper Co., Inc., in the case was Appendix and as in “eat- Maryland corporation; seen IV, Maryland though in ing places” by corporations, owned in of owned individuals or fourth number those partnerships, nearly do as much business as the other two combined. corporate far as the owner concerned,

So what right constitutional is vindicated? It is said that owner- to it in associa- ship property of carries the use people cor- tion with such as the owner chooses. The in porate owners these cases—the stockholders —are probably members of the who large, unidentified petitioners, may saw these who never have fre- never 262 personal rights

quented these restaurants. What Wiry would be vindicated affirmance? should theirs in Kress, Woolworth, Johnson, any stockholder Howard standing other in restaurant field have corporate owner say any personal to him rights associational are Why involved? his interests —his associational should possible Negroes to send these to jail? it —make corporation? is the Who, situation, Whose prejudices racial are in “its” reflected decision to refuse Negroes? service to racial man- prejudices The ager? theOf stockholders? Of the board of directors? County R. Court Santa Clara v. Southern Pacific Co., U. S. on interrupted argument counsel oral to say, “The court does hear argument not wish to on question provision whether the Fourteenth Amend- ment the Constitution, deny forbids a State to any person within its jurisdiction protection the equal applies laws, corporations. these are all We S., opinion that it does.” 118 U. at 396. Later corporations Court held that “persons” are within the meaning the Due Process Clause the Fourteenth Beckwith, Amendment. R. Minneapolis Co. v. S.U. 26, 28. While that view is the today, prevailed law only dissenting opinions. over See of Mr. the dissent Johnson, Connecticut General Co. v. Justice Black 77, 85; my U. S. dissent in Wheeling Steel Corp. Glander, S.U. 576. Mr. Justice Black said of that doctrine its influence:

“. . . the cases in this Court in which the Four- applied teenth Amendment fifty during first years after adoption, its less than one-half of one cent, per protection invoked it in negro race, cent, more fifty than per asked that its benefits be extended corporations.” to Connecticut General Johnson, Co. v. 303 S.,U. at 90. to the is entitled corporation, any “client,”

A like other Inc., Burners, v. Radiant attorney-client privilege. See corporation is Assn., 2d A F. American Gas Press the Freedom publisher by a protected as v. Ameri Grosjean First Amendment. Clause York Co. v. Co., 244; New Press S. Times can U. the dissent Sullivan, corporation, A over S. 254. 376 U. pro entitled to Justice held Harlan, the first Mr. by rea and seizures against unreasonable searches tection Henkel, 201 Hale v. son of the Fourth Amendment. privilege On the other hand S. 76-77. U. Fifth Amendment guaranteed by self-incrimination States corporation. a United cannot be utilized privilege White, “The constitutional S. 694. U. one, a essentially personal against self-incrimination is Id., applying only to natural individuals.” at 698. rights with personal deal we are here, told, We —the pertaining to need share his property. One allow with he One need not another home one dislikes. any for upon domain reason put private to his foot his enlighténed. sim- bigoted desires —whether he extolled, agricultural economy that Jefferson ple But a highly personal. were how is posed conflicts store, chain “personal” right infringed corporate when open people forced lunch counters to to its example, right all How can be elevated to races? that so-called right corporate level? How is that more constitutional “personal” right against than self-incrimination? revolutionary change by an effected affirmance an damaging sit-in cases would much these more society did open and Court when it free than what the gave corporation the sword the shield the Due Equal Process and Protection Clauses of the Fourteenth Amendment. a cor- Affirmance finds the Constitution anyone porate to refuse “it” service chooses get put defy people jail State who “its” will. give man- corporate More precisely, affirmance.would agement planning.1 vast for dimensions social management would make the corporate ar-

Affirmance deepest society: biter one our corpo- conflicts of management rate could then enlist the aid of state police, prosecutors, state and state courts to force on apartheid community if they served, suited apartheid best if its corporate need; or, profits would be served better lowering the segregation, barriers it could do so. Veblen, writing directly while not corporate about management issue, and the racial saw danger leaving governmental fundamental, decisions to the man- agers corporate or absentee owners of our enterprises: ownership management

“Absentee and absentee grand on this scale is from neighborly per- immune sonalities and from sentimental considerations and scruples.

“It takes through effect and imper- colorless sonal of corporation channels management, at the corporate management The conventional claims of are stated in Ginzberg Berg, Rights Manage Democratic Values (1963), pp. ment 153-154: founding despite fathers,

“The opinion among some differences of them, were one mind when it came fundamentals —the best guarantee of freedom was the retention the individual of the possible scope decision-making. broadest for early And na- history, Supreme tion’s corporation when the Court decided that the possessed many continuity the same individuals, structure; corporate maintained basic owner as well as the scope had decision-making. individual wide for decades, In recent another agents extension of this trend became manifest. The managers owners—the able to subsume for themselves the —were ownership. inherent record, authorities then, The historical clear. The property do what one his likes with lies at the very experience. foundation of our historical This is a basis for management’s growing concern with the restrictions and limitations increasingly which have come to characterize an arena where the scope widest previously prevailed.” individual initiative discretion whose officials hands of businesslike procuring no farther than extend responsibility ob- largest say large is to reasonably of a —that absentee of The gain price. in terms tainable —net working out of all touch with the owners removed are except in hand, the work personnel or with industrial contact remote, dispassionate such neutral and of receipt implied as in the continued proxy may be for very same is true a and much the income; free owners, the of absentee agents the the business cor- responsible of and staff investment-bankers on, what going Their relation to is poration officials. going is manpower by and to use of a of industry, a on, process fiscal relation. As of life, a of the means workmanship production and meaning absentee work in hand has no for the background in sitting owners these fiscal tangible and conse- vested interests. Personalities quences governing are eliminated and the business in output goes the rate and forward volume Absentee funds, prices, percentages.” terms (1923), pp. 215-216. Ownership in the field point corporate is that motives retail corpo- corporate profits, corporate prestige, relate to Corporate tinge have no rate relations.2 motives Harvey’s Department Harvey, president of Store in Nash “Fred says ville, desegregated that his its lunch when store counters only charge 60,000. greatest were out of 'The accounts closed apparent white surprise I ever “só-what” attitude of had was says Harvey. customers,’ Mr. they usually only temporary. occur,

“Even where are business losses Irving Atlanta, H. 120-room Manor owner At the Peachtree Hotel desegre- says dropped business when hotel Goldstein his off 15% ago year only slightly year gated ago. we behind a a ‘But now are initially recapture beginning we see we can we are business lost,’ declares Mr. Goldstein. Huntsville, Drug Davoren,

“William F. owner the Brownie Co. in reports Ala., though after his business fell a bit for several weeks only an to associate with one individual’s choice class customers, keep members of one race from his “prop- a erty,” to erect wall of around a privacy business manner one is erected around the home. picked up were desegregated,

lunch he’s now all counters that he lost. Says people regarded personal he: 'I could name a dozen who it as a serving Negroes, affront when I started but have come back as if nothing happened.’ had segregation-minded

“Even agrees businessman Huntsville frequently white customers have short memories when it comes to question. general manager the race W. Hutchens, T. of three Wal- green says there, oper- stores held he out when most lunch counter gave pressures July. shopping ators in to sit-in last In one center competition says where his desegregated, Mr. Hutchens his business up sharply registered shot and the store’s lunch counter volume gain year. year However, dropped this business has 12% pre-integration to people forgotten’ back levels lot 'because a have played during the defiant his sit-ins, role stores he adds. “Some desegregated say they Southern businessmen who have have picked up extra business as a result of the move. Raleigh, C., “At N. desegregated where Gino’s Restaurant was

year, reports only eight owner Jack Griffiths whites have out walked learning the Negroes, after establishment says, served and he ‘we’re getting plenty replace of customers to the hard-headed ones.’ integration

“In Dallas, ‘opened of hotels and has up restaurants an entirely prospects,’ according new area of Ray convention Benni- son, manager year convention of the Chamber Commerce. ‘This probably $8 we’ve added bookings $10 million to million of future integrated,’ says.” Journal, because we’re Mr. Bennison Wall Street July 15, 1963, pp. 1, 12. recently by Perry: As stated John manager seeing “The has become accustomed to well-dressed Negroes good restaurants, planes in on trains, church, in in hotel lobbies, meetings, university at United Fund television, on his years Only ago, Negro club. few if a he met politi- a at some civic or meeting, cal he understood that the was man there because he was a Negro; Today he a kind likely of exhibit. it is much more Negro position profession. there because his It makes everyone a difference that feels. manager companies

“The is aware that changing. other than his are happening. sees it He He reads usually about it. It is about, talked the con- standing has to assert corporation a At times rights members, as otherwise stitutional of its be lost or might members as individuals peculiar to the Alabama, S. NAACP v. U. impaired. Thus P., N. A. A. a member- was whether the C. question on of members ship corporation, could behalf its assert compelled a from right personal protected to them to be of their affiliation with it. disclosure the State appropriate context we said the A. C. P. was “the A. N. party to it and members are rights, assert these because its in every practical Id., felt, identical.” at 459. We sense standing A. moreover, deny the N. A. C. P. question require raise the to be claimed members themselves “would nullification result very at the of its Ibid. Those moment assertion.” important governing decision, were the our reasons effect of disclosure on the N. A. A. C. P. itself adverse Id., make-weight. being only a at 459-460. corporate restaurant, corporate owners of like the streetcars, telephones, light and electric buses,

owners and in gas facilities, are interested balance sheets profit and loss statements. “It” does not at the stand door turning Negroes feelings antip- aside because of “its” athy people. any to black-skinned “It” does not have rights comparable associational to the classic individual country owner at whose store, store crossroads dichotomy of an Adam was no different Smith, indeed from his “It” been greatly transformed, home. has as Berle and Modern and Means, Corporation Private Property generation (1932), ago; made clear and “it” economy. Separation power has also transformed our of gatherings. informally, So, off the record and at business in due course, questions shaped step keep in his are mind: ‘How can we in ? change, making big How can we without deal of it ? Can we do it ” uproar?’ Target Integration, without a lot of Business —Next for pp. March-April, 1963, Rev., Harvard Business of the ownership part from beneficial or control change: phenomenon of destroys property atom of dissolution of the

“This of economic order fоundation on which the very enter- has rested. Private three centuries past since the close has molded economic life prise, which rooted the institution ages, of the middle has been system, its the feudal private property. Under mu- organization grew out of predecessor, economic by various obligations privileges tual derived which no property from their relation to individuals other enterprise, one them owned. on the Private hand, has assumed an owmer of the instruments those production complete property with over organization instruments. feudal Whereas economic an upon system life rested elaborate binding organization system under the customs, the of private enterprise upon has rested the self-interest property owner —a self-interest held check only by competition supply and the conditions long regarded demand. Such self-interest has been guarantee as the efficiency. best economic It has been assumed if that, protected the individual right both property to use his own as he sees fit and to receive the full fruits of its his use, desire personal gain, for can relied an profits, upon any effective incentive to his efficient use of indus- trial property may possess. he

“In the quasi-public corporation, such an assump- longer tion no holds. ... longer is no indi- vidual himself who uses his wealth. Those con- trol wealth, of that position and therefore in a industrial efficiency produce secure profits, are owners, no longer, as entitled to the bulk of such profits. Those who control the destinies of the typi- a frac- insignificant own so corporation cal modern from of the stock that the returns company’s tion accrue to them running corporation profitably the stockholders, the very degree. a minor The on only go, profits corporation other to whom the hand, a more effi- profits cannot be motivated those property, they cient use of the have surrendered since all in control of the enter- disposition those atom of de- prise. explosion property stroys quest old assumption basis that the profits spur property will owner of industrial challenges to its use. It consequently effective principle fundamental economic of individual initia- Id., enterprise.” tive in industrial at 8-9. By separation like token the of the atom of “property” “management” into one unit of into another ownership” ways “absentee has in other basically changed the relationship “property” public.

A corporation may if Negroes exclude “it” “it” thinks can make money go more so. with doing may along “It” community prejudices when profit and loss statement will benefit; unlikely go “it” is against the current community prejudice when profits endangered.3 are

3The New editorially analogous York Times stated the idea in an situation on October 1963. P. 32: speaking Roger “When it comes to matters, Blough, out on business chairman of the Corporation, United States Steel does not mince words. Blough

“Mr. is a firm corporate believer in freedom of action for management, position he made clear in his battle with Admin- year. put istration last But he also has some severe limits on the corporate exercise responsibility, rejects suggestion for he Steel, biggest employer U. S. Birmingham, Ala., should use its economic influence to Blough erase racial tensions. Mr. feels that responsibilities U. S. by following Steel has fulfilled its non-dis- criminatory hiring policy Birmingham, upon any and looks other in same idea Absentee the

Veblen stated somewhat Ownership (1923), p. 107: bargaining, . . arts of business are arts

“. the and are di- salesmanship, make-believe, effrontery, gain man to the of the business at the rected cost detail. Neither community, large in good common is a tangible performance nor busi- Any material which his traffic proposition. ness use may quite purpose, serve is beside the business man’s except in so far indirectly, may as serve to influence advantage.” to his clientele his By this standard bus company could refuse service to Negroes if “it” “its” profits would increase once felt apartheid transportation were allowed in the field. president the instant Carroll case, Hooper, G. corporate owning chain involved, the restaurant here concerning episode gave testified rise these convictions. His wholly reasons were оnes, commercial as already we have seen. 'repugnant’ 'quite beyond corporation

measures as both what a improve should do’ to conditions. strategy surely

“This hands-off potential underestimates the in- corporation a big fluence of Steel, particularly as U. S. at the local could, affecting profit level. It margins adversely without its getting directly politics, actively itself involved work with those groups Birmingham trying to better race relations. Steel is not level, sold on the retail so U. S. Steel has been not faced with the pressure against economic used branches national chain stores. “Many corporations belatedly recognized have that it is in their promote own improvement self-interest Negro an opportunities. As biggest one of the corporations, nation’s U. S. Steel and its share- great holders eliminating have as a stake the economic imbalances any company. associated with Corporate racial discrimination as responsibility easy measure, is to define or refusing but in Blough take a appears stand in Birmingham, Mr. to have a rather narrow, concept limited of his influence.” is little more corporation when the are occasions

There brother; or brother and for man and wife than a veil entity instrument often disregarding corporate of a relegation But achieving just result. for citizenship just. is not customer to second-class Negro worthy occasion on America fastening apartheid Nor is tearing corporate aside veil. MR. II OF JUSTICE APPENDIX TO OPINION DOUGLAS. purpose Virginia, post, p. 550, In Oreen v.

A. to be immaterial serving Negroes reason for not ruled case. to the issues following testimony corporate of cases,

B. one was either a commercial officers shows that the reason or, thing, which amounts to the same that service to was not in accord with local custom: Negroes Columbia, City post, p. 347. 1. Bouie v. of manager of branch Guy Malone, Dr. the Columbia Drugs Florida, Inc., of Eckerd of testified: to do “Q. Malone, public generally Mr. is the invited business with Eckerd’s? IYes, say

“A. so. would public mean all of the of all races? “Q. Does that “A. Yes. Eckerd’s?

“Q. Negroes Are welcome do business with to “A. Yes. lunch

“Q. Negroes Are welcome to do business at the counter Eckerd’s? Negroes at the lunch Well,

“A. we have never served department. counter

“Q. According policy Eckerd’s, of present to the Negro public? of counter is closed members lunch to say yes. “A. I would

“Q. all departments And other open Eckerd’s are to members the Negro public, as well as other mem- generally? bers “A. Yes.

“Q. Mr. Malone, on the occasion arrest of these young men, they doing your what if store, you were know?

“A. Well, it was four them in. Two of came them went back and sat down at the first booth started' reading books, they sat there about fifteen min- course, group utes. Of we prior had had a week about that, of about who into fifty, came the store. Perry: “Mr. Your Honor, ask, course, I prior incident be stricken from the record. not That responsive the question has asked, been and is pertinent guilt the matter of the or innocence these men. young

“The right, Court: All it. strike “Mr. Sholenberger: Your Honor, this is their own witness. Perry:

“Mr. We announced at the Ma- outset that Mr. in lone would, sense, be a hostile witness.

“Q. so, person And when a comes into Eckerd’s seats himself at a place food ordinarily served, where is what is practice your employees regard? that

“A. it’s Well, to take their order.

“Q. anyone Did seek to take the orders of young these men? they

“A. No, did not. “Q. did Why they do so? not “A. Because we didn’t want to serve them.

“Q. Why you did not to want serve them?

“A. I think I don’t have answer that. “Q. you Did refuse serve them because they were Negroes?

“A. No. policy Eckerd’s has the however, did

“Q. say, You in the lunch counter section? Negroes serving not thing. all do same stores say I would “A. of Eckerd’s? specifically “Q. speaking We’re “A. Yes. Malone, Mr. your any employees,

“Q. you Did for food? their order and take approach these defendants “A. No.” Florida, ante, p.

2. Robinson v. Inc., A testified: City, President of Shell’s Vice defendants? “Q. Why you did refuse ‍​​‌‌​​‌‌​​​‌‌​​​​‌‌‌‌‌‌‌‌​​​‌‌‌‌​​‌​​‌​​‌‌‌‌​​‌‌‍to serve these very I is detrimental definitely, feel, “A. Because it our to do so. business

“Q. you do mean ‘detrimental’? What mean a loss busi- “A. Detrimental because would it ness mixed groups.” to us to serve testified: City, Inc.,

Another Vice President Shell’s store, do departments your “Q. You have several you not? Maybe twenty. I Nineteen,

“A. Yes. believe. pur- and make “Q. Negroes participate are invited to eighteen departments? of these chases sir. Yes, “A.

“Q. distinguish your feeling that you Can between it depart- in eighteen have 'them served detrimental them and it is detrimеntal to have served ments the lunch counter? department, namely, nineteenth custom, is, back to is the Well, goes “A. what County in Dade basically the tradition of what is observed it.of have— would be the bottom We you is, me this custom that “Q. you tell what Would to, prevent you that would from making are reference your lunch counter? serving Negroes I “A. believe I already that, answered it is customs and traditions and practice county this —not only county in this part but this the state else- where, to serve whites and people colored seated the same restaurant. my That’s answer.

“Q. reason, Was that the sole basis, your the sole feeling your this was detrimental business?

“A. Well, that is the foundation of it, but we feel yes, that at this time if we went into a thing trying break barrier, might we trouble, have racial we want. good don’t We have among lots friends people colored and will have when this case is over. “Q. you Are familiar with the fact that the Woolworth Stores this community have eliminated practice? “Mr. Goshgarian: To which the State objects. It is irrelevant and immaterial.

“The objection Court: The is sustained.” Carolina, 3. Fox v. North post,, p. 587.

Mr. Claude M. Breeden, manager of McCrory branch in testified: Raleigh,

“I just don’t colored. I serve don’t have the facilities for serving Explaining colored. why I don’t serve col- T ored. don’t have serving the facilities for colored. I have the standard short order I lunch, but don’t serve I colored. don’t serve colored I because don’t have the facilities for serving colored. for Defendant: What facilities would be

“Counsel necessary for serving colored? for State: Objection.

“Solicitor “The Court: Sustained. It is not the policy my

“Witness Continues: store to discriminate and not Negroes. serve We have no policy against discrimination. I do not discriminate and not the custom in Raleigh Store discriminate. I do not have the facilities for serving colored and that is Iwhy don’t serve colored.” Charleston, 551. post, p. City Mitchell v.

4. H. Kress & manager of the S. Watts, Albert C. Mr. Charleston, testified: Co. outlet Kress’s? “Q. type . . . business What variety and Ten Cent store. “A. Five what briefly something about “Q. you tell us Could every about just it sell it sells—does commodities type in this might one find type commodity establishment? Strictly variety appliances merchandise —no

“A. store anything like that. “Q. I I see. it invites members Kress, bélieve public generally premises into its do does it business, not?

“A. Yes. “Q. Negroes invites in to do also? business, It Right. “A.

“Q. Negroes in all departments Are served except your Kress’s lunch counter?

“A. local We observe custom.

“Q. Charleston, you In South the store Carolina, manage, sir, Negroes does Kress’s serve the lunch at counter?

“A. No. It is not a local custom.

“Q. your To does the other like knowledge, businesses Negroes serve their lunch counters? What might happen at or some of Woolworth’s the others? They

“A. observe local custom —I say they wouldn’t. “Q. you Then know of your own knowledge they Negroes? do not serve you speaking Are of other busi- your ness such as business? I only

“A. can speak in our yes. field, “Q. your field, so that the your other stores in field do Negroes not serve at their lunch counters?

“A. Yes, sir.” Hamm, City Hill, Rock S. 988. U. manager C. Whiteaker, McCrory’s

Mr. H. Rock Hill, testified:

“Q. right. All many departments you how do Now, in your have store?

“A. twenty. Around

“Q. Around twenty departments?

“A. sir. Yes,

“Q. All right, sir, is one of departments these considered a lunch or counter establishment food where is served?

“A. Yes, sir. That a separate is department. “Q. I is it Now, believe, you true that invite members of the public to come your into store?

“A. it is for Yes, public. “Q. And is it true, too, that you means various everybody, races, nationalities? religions, “A. Yes, sir.

“Q. policy your The as manager store is not to ex- clude anybody from coming and buying these three thousand items on account race, nationality or religion, is right? that

“A. only place where there has been exception, where there anis exception, at our lunch counter.

“Q. I see. Is Oh, that a policy written you get from headquarters in New York?

“A. No, sir. “Q. It is not. You don’t have any memorandum in your says store is a policy?

“A. No, sir.

“Q. true, Is it then, that if, well, even if that, 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 now? Whether you knew he was a Com- would have political his beliefs not, munist or so right? do with is that anything it, No. “A. policy was a there

“Q. you said that there Now, sir, do serve you Negroes sitting. Am I to understand standing up? Negroes, who Negroes or Americans are serve we counter, “A. To take end out, take-outs, sir. yes, a lunch counter at the

“Q. you In other have words, your store? end of get a they I can wait and end,

“A. said at the No, and take hamburger a meal оr order a package or coke it out. on

“Q. normally eat it They to take out. don’t Oh, premises? They usually “A. is to take out. might, but “Q. you Negro em- course, probably Of have some ployees your you? don’t store, capacity, some

“A. Yes, sir.

“Q. They right? on premises, eat the is that “A. sir. Yes,

“Q. But not at the lunch counter?

“A. No, sir.

“Q. I but Oh, see, generally you consider speaking, Negro part general American as is that public, right, just generally speaking? Yes,

“A. sir. “Q. You don’t for him any objections spending have any amount of to on money 3,000 items, he these wants you? do

“A. him if up spend spend. That’s to to he wants to “Q. custom, it, This is a as I understand this is cus- him you tom of a law causes not to want instead ask for the lunch counter? service at my knowledge,

“A. There is no law to merely it is custom in community.”

C. The testimony following is less defini- cases tive respect why Negroes with were refused service. ante, Maryland,

In v. p. 130, president Griffin the corporations which own operate Glen Echo Amusement Park said Chinese, he would admit Filipinos, and, anyone Indians generally, Negroes. but He did not elaborate, beyond stating a private property owner right such a has make choice. Columbia, ante,

In City Barr v. p. 146, co- manager Taylor owner and Pharmacy Street said Negroes could purchase other departments his store and that whether for or personal business reasons, he felt he had a to refuse service anyone. Carolina, Williams v. North post, p. 548, presi-

dent of Drug Company Jones Negroes said were not permitted to take seats lunch at the counter. did say, He however, Negroes could purchase food and eat it on premises long they so as stood some from distance lunch such counter, near the back door.

In Lupper Arkansas, U. S. and Harris v. Virginia, post, p. 552, the record discloses only that establishment Negroes. did not serve III

APPENDIX TO OPINION OF MR. JUSTICE

DOUGLAS. Corporate Business Establishments Involved In The “Sit-in” Cases Before This Court During The 1962 Term And The 1963 Term. (other Reference than the record in each case): Moody’s Industrial (1963 Manual ed.). only 1 The “sit-in” involving corporation cases not are Barr v. City Columbia, ante, p. 146, Virginia, and Daniels v. 374 U. S. Barr, 500. the business Taylor establishment was the Street Pharmacy, apparently partnership; Daniels, it was the Alexandria, Restaurant Virginia, an proprietorship. individual Department Store. 1. Gus Blass & Co. Arkansas, S. v. 989. U. Lupper

Case: Little Arkansas. Rock, Location: Ownership: Privately corporation. owned Drugs Florida, 2. Eckerd Inc. Columbia, post, p. 347. City

Case: Bouie v. throughout Southern drugstores retail Location: 17 States. Publicly corporation. owned

Ownership: 1,000. Number of shareholders: Stock traded: Over-the-counter market.

3. George’s Drug Inc. Stores, Virginia, v. 552. post, p. Harris

Case: Virginia. Hopewell, Location: Ownership: Privately corporation. owned Gwynn Park, 4. Inc. Oak Maryland, p. 547. post, v.

Case: Drews Maryland. Baltimore, Location: Privately corporation. Ownership: owned Hooper Company, 5. Food Inc. 226. Maryland, supra, p. Bell

Case: v. Mary- Baltimore, Location: restaurants in Several land. Privately

Ownership: corporation. owned 6. Howard Johnson Co. Virginia, S. 98. Henry

Case: 374 U.

Location: 650 restaurants in 25 States. Publicly corporation.

Ownership: owned 15,203. Number of shareholders: Exchange. Stock New York Stock traded: Drug 7. Jones Inc. Company, Carolina, post, p. v. North Case: Williams Monroe, Location: North Carolina. Privately

Ownership: corporation. owned Kebar, (lessee 8. Inc. from Inc.). Rakad, ante, Maryland,

Case: v. p. 130. Griffin Location: Glen Echo Park, Maryland. Amusement Ownership: Privately corporation. owned 9. S. Kress & Company. H. Charleston, Mitchell City

Cases: v. post, p. 551-; Carolina, Avent v. North Goher 375; U. S. v. City Birmingham, 373 U. S. Peterson 374; City Greenville, v. 373 U. S. 244. Location: 272 stores in 30 States.

Ownership: Publicly corporation. owned Number of 8,767. shareholders: Stock traded: New York Stock Exchange. Department 10. Loveman’s (food Store oper- concession ated Candy Company Price City). of Kansas Goher City Case: v. Birmingham, supra. Location: Birmingham, Alabama.

Ownership: Privately corporation. owned 11. McCrory Corporation. Carolina,

Cases: Fox v. North post, p. 587; Hamm Hill, City v. Bock 988; 377 U. S. Lombard v. Louisiana, 373 U. S. 267. 1,307

Location: throughout stores the United States.

Ownership: Publicly owned corporation. Number of shareholders: 24,117.

Stock traded: York Exchange. New Stock 12. National White Tower System, Incorporated. Virginia,

Case: Green post, p. Richmond, Location: Virginia, and other cities (number unknown).

Ownership: Apparently a privately owned cor-

poration. Newberry Co.

13. J. J. Birmingham, supra. City Gober v. Case: foun- States; soda in 46 variety stores Location: in 371 restaurants bars, cafeterias lunch tains, stores. corporation. Publicly

Ownership: owned 7,909. of shareholders: Number Exchange. York Stock Nеw traded: Stock Drug Co. 14. Patterson Wood 99; Virginia, 374 U. S. v. Thompson

Cases: 100. Virginia, S. v. U. Virginia. Lynchburg,

Location: corporation. Privately owned Ownership: Store. Department Pizitz’s 15. Birmingham, supra. City Gober v.

Case: Alabama. Birmingham, Location: corporation. Privately owned Ownership: City, Inc. 16. Shell’s Florida, ante, p. 153. Robinson v.

Case: Miami, Florida. Location: corporation. Privately owned Ownership: Bros., Department Store. Inc., 17. Thalhimer Virginia, S. Randolph 374 U. 97. Case: Virginia. Richmond, Location: Privately corporation. owned Ownership: Company. F. W. Woolworth supra. City Birmingham, Gober v. Case: stores) variety (primarily 2,130 stores Location: States. throughout United corporation. Publicly owned Ownership: 90,435. Number shareholders: Exchange. York Stock traded: New Stock APPENDIX IV TO MR. OPINION OF JUSTICE

DOUGLAS. Legal form of organization by kind of business. — Reference: United States of Business, Census Vol. I.

Retail Summary (1961). Statistics trade —

A. United States. Establishments Sales places: Eating (number) ($1,000) 229,238 Total. $11,037,644 proprietorships. 166,003 Individual 5,202,308 Partnerships 37,756 . 2,062,830 Corporations 25,184 . 3,723,295 Cooperatives . 231 13,359 legal Other forms. 64 35,852 Drugstores with fountain: 24,093

Total. $3,535,637 proprietorships. Individual 13,549 1,294,737 Partnerships 4,368 . 602,014 Corporations 6,140 . 1,633,998 Cooperatives . (withheld) 9 legal Other forms. 27 Do.. Proprietary stores with fountain: Total. 132,518 CDO csT H proprietorships.... Individual 85,988 i-T (X) 03CO

Partnerships . (withheld) Tjl ^ CO Corporations . 21,090 H OOlO Cooperatives . legal Other forms.. (withheld) Department stores:

Total. 3,157 13,359,467 proprietorships Individual (withheld) 19 Partnerships . 64 85,273 Corporations . 3,073 13,245,916 Cooperatives . (withheld) 1 legal Other forms.

283 op Maryland.1 B. State

Establishments Sales Eating places: (number) {$1,000) 3,223 Total. 175,546 proprietorships. 2,109 72,816

Individual Partnerships 30,386 . 456 Corporations. 71,397 628 legal ‍​​‌‌​​‌‌​​​‌‌​​​​‌‌‌‌‌‌‌‌​​​‌‌‌‌​​‌​​‌​​‌‌‌‌​​‌‌‍Other forms. 30 947 proprietary Drugstores, stores: 139,943

Total . 832 proprietorships... Individual 42,753 454 Partnership (withheld) . 139 Corporations.. 76,403 legal (withheld) Other forms. Department stores: 247,872

Total . proprietorships. Individual

Partnerships .

Corporations. 247,872 legal Other forms.

1 A division into stores fountains, with or without furnished for States, the United is not furnished for individual States.

284

APPENDIX Y TO OF MR. OPINION JUSTICE

DOUGLAS.

State Antidiscrimination Laws.

(As 1964.) March (prepared rights.) the united states commission on civil Private Private Private Private employment State hospitals housing schools 1 Alaska_ 2 1959 1962 1962 California_ 2 1963 1959 1952 Colorado_ 1957 1959 Connecticut_ 2 1947 1959 1953 Delaware_ 1960 Hawaii_ 1963 Idaho_ 1961 1961 Illinois_ 1961 1885 31963 41927 Indiana_ 1885 1945 1963 Iowa_ 1884 1963 im Kansas_ 1961 5_ Kentucky Maine_ 2 1959 1959 6_ Maryland 1963 Massachusetts... 1959 1949 1953 ISM Michigan7_ 1885 2 Minnesota_,_ 1961 1943 ISM Missouri_ Montana_ 1955 Nebraska_ 1885 2 Hampshire- New 1961 1961 1961 Jersey_ New 1961 1951 Mexico_ New 1955 1957 York_ New 1961 1945 1S24 Dakota_ North 1961 Ohio_ 2 1959 1961 ISSá 2 Oregon_ 1953 81959 91951 1961 1949 Pennsylvania_ 1887 1955 1939 1939 196J Island_ 2 Rhode 1949 1885 1957 Dakota_ South Vermont_ 1963 2 1957 1963 1957 10_ 2 Washington 1949 1957 1957 1S90 Wisconsin_ 1957 Wyoming_

285 enacted; The dates are in which the law those was first the under- lining law means that the is enforced commission. In addition above, following pertinent to the cities without States laws Albuquerque, have enacted antidiscrimination ordinances: N. Mex. Mich, (housing); Arbor, (housing); Baltimore, (employ- Ann Md. ment); Beloit, (housing); Chicago, (housing); Paso, El Wis. Ill. Tex. (public accommodations); Ferguson, (public accommodations); Mo. Mich, Rapids, (housing); City, (public Grand Kansas Mo. accommo- Ky. dations); Louisville, (public accommodations); Madison, Wis. Oberlin, (housing); (housing); Omaha, (employment) ; Ohio Nebr. Peoria, (housing); Joseph, (public accommodations); Ill. St. Mo. St. (housing Louis, public accommodations); Toledo, Mo. and Ohio (housing); University City, (public accommodations); Mo. Yellow Springs, (housing); Washington, (public Ohio D.C. accommoda- housing). tions and 1 to Alaska was admitted the Union in 1959 with these on laws its books. 2Hospitals law; however, are not enumerated in the a reasonable interpretation language public the broad contained in the accom modations law could include various health facilities. 3 appears The law limited to business schools. 4Hospitals operations (surgical) performed required where are are emergency any applicant render or aid first if the accident or complained injury injury. of could death or cause severe 1963, requiring 5 In the Governor an executive order all issued departments agencies executive supervising take all lawful action whose functions relate to the licensing persons organizations doing or business to necessary prevent religious racial or discrimina tion. counties; 1963, exempted 1964, coverage In law ante, p. extended to include all of the counties. See n. holding Atty. opinion See 1963 Mich. Gen. that the State Com Rights authority housing. plenary on Civil mission has housing per prohibits persons The statute does not cover se but it engaged discriminating. in the business from 9 10 vocational, professional, The statute relates to schools. trade Washington lower court held that a real estate broker is within the law. accommodations with whom The Chief Goldberg, Justice

Mr. Justice Douglas and with whom joins, joins as to Justice Mr. Parts II-V, concurring.

I. I join opinion judgment of the Court and wоuld therefore have no occasion under ordinary cir- cumstances to express my views underlying on the con- stitutional issue. Since, however, the length dissent at discusses this constitutional issue reaches a conclu- sion with which I profoundly I am disagree, impelled to state the my reasons for conviction that the Constitution guarantees all Americans the right to be treated as equal members of the community respect with accommodations.

II. The Independence Declaration of states the American creed: “We hold these truths to self-evident, all be that men are created they equal, are endowed their Creator with certain unalienable Rights, among these Life, Liberty are pursuit and the Happiness.” This ideal fully was not achieved adoption with the of our Constitution because of the tragic hard and reality Negro slavery. The Constitution of the new Nation, while heralding liberty, effect declared all men to be free and equal except black men who were to neither free — equal. nor inconsistency This reflected a fundamental departure from the American creed, departure which it tragic took a civil war right. to set With the adoption, however, of the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution, freedom and equality guaranteed were expressly all regardless “of race, color, United, or previous condition of servitude.”1 States Reese, 92 U. S. 214, 218. generally Flack,

1 See Adoption The of the Fourteenth Amend (1908); ment Harris, Quest Equality (1960). equality American commitment light history commitment, these Amend- “legislative ments must be not as codes read changing with subject are to continuous revision great pur- events, course of as the revelation but poses which were to be achieved the Con- intended continuing government.” as a of stitution instrument Classic, United 313 316. cases 299, States v. U. The S. Plessy Ferguson, 163 following the 1896 decision in v. great this negate purpose. U. S. too often tended to 537, Education, in Brown 483, 1954 v. Board 347 S.U. of unanimously Court concluded the Fourteenth equality segrega- that racial Amendment commands by tion law is Broion has inequality. Since the Court consistently applied give this constitutional standard meaning real Equal to the Protection Clause “as the enduring of an purpose.2 revelation” constitutional argues The dissent permits Constitution American citizens to places public to be denied access of solely accommodation because of their race or color. Such a view does not justice do to a Constitution

2 g., Martin, E. Anderson v. 376 U. S. Edu- 399; Goss v. Board of cation, City U. Memphis, S. Watson v. S.U. 683; 526; 373 373 of Louisiana, City Lombard v. U. Greenville, S. Peterson v. 267; 373 of Virginia, City 373 U. S. Johnson S. 244; v. 373 U. Turner v. 61; of Wilmington Memphis, Parking Authority, 369 U. S. Burton v. 350; Boynton Virginia, 365 U. S. Light- v. 715; 364 U. S. Gomillion v. 454; foot, 339; Cooper Aaron, S. U. U. S. 1. As Professor 364 358 Freund observed, has Brown and the decisions that followed it abrupt “were an departure in constitutional law or a novel interpretation guarantee equal protection of the laws. The old doctrine of separate-but-equal, in announced had been steadily generation eroded for at least a cases, before the school way precedents they finally are whittled down until col lapse.” Freund, Supreme The Court of the United States (1961), p. See, g., e. ex Canada, Missouri rel. Gaines v. S.U. 173. 337; Painter, Sweatt v. S. McLaurin U. v. Oklahoma State 629; Regents, 339 U. S. 637. in Brown v.

is color blind and to the Court’s decision Education, all right Board which affirmed the blind ourselves public equality. Americans to We cannot interpretation a consequences to the constitutional away by all permit which would citizens to turned only in town. The by restaurants, restaurant, Negroes denial of the constitutional access places public perpetuate accommodation would caste system in the States. United Thirteenth, Fourteenth and Fifteenth Amend- Negroes to as second- permit ments do not be considered any aspect class citizens our life. Under our Constitution sanctioned law between distinctions ancestry, religion citizens because of color or “are race, very their people nature institu- odious to free whose tions are founded upon equality.” the doctrine of Hira- bayashi States, v. United S. make U. We no racial distinctions exacting between citizens in from discharge them the public responsibilities: of The heav- citizenship military iest duties of service, taxation, — obedience to imposed evenhandеdly upon laws—are black and may impose white. States do of and the burdens state citizenship upon Negroes and in many the States ways benefit from of equal imposition the the duties of federal citizenship. Our fundamental law which insures such an equality public burdens, my view, similarly insures an equality benefits. This Court has repeatedly recognized and applied this prin- fundamental ciple many aspects of community life.3

III. Of our course constitutional duty is “to construe, not to rewrite or amend, Post, the Constitution.” at 342 (dissenting opinion of Mr. Justice Our sworn Black). duty to construe the Constitution requires, however, supra, See note 2. purposes effectuate the intent and we read history We consider the and must, Framers. therefore, indicating what War circumstances Civil Amend- designed were in fact ments to achieve. 1873, in interpreting one the earliest cases Amendments,

Thirteenth Fourteenth Court observed: fail with impressed one can to be the one

“[N]o in . . . pervading purpose found all Amend [these ments], lying each, at the foundation of and without suggested ; none of them would have been even security we mean race, the freedom of the slave and firm freedom, pro establishment of that newly-made tection freeman and citizen from oppressions formerly who had exercised those Slaughter- unlimited dominion over him. . .”. Cases, House Wall. 36, years A few later, the Court had occasion observe that these Amendments and adopted were written “to raise the colored inferiority race from that condition of servitude which stood, most of them had previously perfect equality into persons civil with all other jurisdiction within the parte the States.” Virginia, Ex S. 339, Term, 344 - 345. In that U. same Court Virginia, Strauder v. West 100 U. 303, 307, S. stated that recently adopted Fourteenth Amendment “be must liberally, construed carry out purposes of its opinions framers.” Such immediately following the adoption of the clearly Amendments reflect contem porary understanding they that were “to secure to the thereby with colored race, rights, invested privileges, responsibilities and of citizenship, enjoyment of all civil that, under the are law, enjoyed by persons . . white . .” Delaware, Neal v. 103 370, U. S. 290 the conclusion amply supports historical

The evidence in General of the the Solicitor Government, stated this that: Court, Congress,

“it an inference inescapable expected recommending Amendment, the Fourteenth from the barring Negroes disabilities remove the public conveyances places public and of accommoda- and thus to they familiar, tion with which were right aspects these Negroes equal enjoy assure an community.” of public of the life conveyances and subject segregation public The of familiar the Framers of the quite accommodations was appears Amendment.4 that the Moreover, Fourteenth contemporary understanding general public of the was places public from freedom discrimination Fourteenth Amendment’s part accommodation promise protection.5 readily This view was equal

4 See, g., 839; Cong. Globe, Cong., Sess., Cong. Globe, e. 38th 1st 1156-1157; Cong., Cong., Sess., Cong. Globe, Sess., 38th 1st 2d 42d. 381-383; Cong. general post- 2 Rec. 4081-4082. For the attitude of Congresses places public Civil War toward discrimination in ac Original Understanding commodation, Munro, see and Frank “Equal (1950). Laws,” 131, Protection of the 50 L. Rev. 150-153 Col. 5 Rights 1866,14 27, precursor The Civil Act of Stat. which was the specifically Amendment, of the Fourteenth did not enumerate such rights but, Amendment, like the Fourteenth was nevertheless under open Negroes public places stood to accommodation. See Flack, op. cit., supra, 1, (opinion press); note at Frank Munro, supra, 150-153; Lewis, note The Sit-In Cases: Expectations, Sup. 101, 145-146. Coger Great Rev. See also Ct. 145; Ferguson Co., v. The North Packet West. Union 37 Iowa Cries, Government, 82 Mich. in its N. W. 718. The brief Court, agreed may with has these authorities: feel sure “[W]e any Congress affirmatively member of would have answered if Rights he had been asked in 1868 whether Civil Act securing Negroes the Fourteenth Amendment would have the effect of hotels, the same as other members of the to use trains public conveyances.”

291 Mississippi of in 1873 accepted by Supreme the Court State, Donnell Supreme Mississippi Miss. 661. The equal and accommo- upheld Court considered there rights” bill as provisions Mississippi’s of “civil dations Simrall, a Negro patron. to Justice applied theatеr speaking court, for the 14th and “13th, noted that 15th of the constitution of States, amendments the United war,” id., logical are of results the late civil at per- concluded that the “fundamental idea and principle vading an of amendments, impartial equality these is rights and civil and to all privileges, political, 'citizens id., the United States’. . . ,” 677.6 Virginia, Strauder v. West supra, had Court occasion concept to consider the of civil embodied in the Fourteenth Amendment: declaring

“What is this but law that the in the States shall for white; same the black for all persons, whether colored or white, shall stand equal regard before laws of States, and, the colored race, protection whose amend- ment primarily that no discrimination designed, shall be made against them law because their color? The words of the amendment, true, are prohibitory, they but a necessary contain implication of a positive most immunity, right, valuable Simrall, Justice by birth,' plantation a Kentuckian awas owner prominent Mississippi lawyer and a Mississippi Legislator State Shoftly before the accepted Civil War. war, before the he a chair of law University Louisville; at the position he continued in that beginning until the plantation the war when he returned his served, Mississippi. subsequently He years for nine on the Missis sippi Supreme Court, years last serving three as Chief Justice. He University later lectured at the Mississippi 1890 was elected a member of the Mississippi Constitutional Convention of and served judiciary as chairman of the Cyclopaedia committee. 5 National Biography (1907), 456; American Rowland, Courts, Judges, and Lawyers Mississippi (1935), 1798-1935 98-99. from un- exemption race, colored —the as col- distinctively against

friendly legislation them imply- legal from discriminations, ored, exemption — security lessening the ing inferiority society, civil enjoy, which others rights enjoyment of their reducing steps which are towards and discriminations Id., at subject of a race.” them to the condition 307-308. attempt no

“The Fourteenth Amendment makes rights designed protect. It to enumerate compre- general and those are speaks terms, language prohibitory; but possible. hensive as Its rights every prohibition implies the existence an immu- immunities, prominent among which is for nity inequality legal from either protection, Id., (Emphasis life, liberty, property.” or at 310. added.) part designed

The was in Fourteenth Amendment Rights a firm Act provide constitutional basis for the Civil beyond 27, place legislation 14 Stat. and to 1866, congressional repeal.7 origins The of sub- power lay in sequently proposed legislation amendments and in a companion measure, the 1866 bill and the Freed- 7 Cong. Sess., 2465, 2467, Globe, Cong., 2459, 2462, 39th 1st at 2538; op. cit., supra, 1, 94; Harris, op. cit., supra, Flack, note at 30-40; McKitrick, note at Andrew Johnson and Reconstruction 326-363; Gressman, Unhappy History Rights (1960), The of Civil (1952). majority Legislation, 50 Mich. L. Rev. 1328-1332 A accepted of the courts that considered the Act of 1866 had its consti tutionality. (No. Rhodes, 16, 151); United States v. 27 Fed. Cas. 785 Cas; Turner, (No. Moody, 14,247); In re 24 Fed. Smith v. People 299; Elder, Contra, Hart Hoss Ind. v. & 26 La. Ann. 90. v. Brady, People 658); (compare Washington, 40 Cal. 198 36 Cal. Commonwealth, Ky. Bowlin v. 5. bill.8 latter was addressed to States

men’s Bureau any State or local . . . consequence law, “wherein, or immu- any rights of the civil custom, prejudice, or right . including the . . belonging persons, nities to white and proceedings benefit of all laws equal to have full security person are refused estate, Cong. 39th 1st negroes Globe., Cong., denied to . . . .” A congressional review of the relevant debates Sess., concept lay of civil reveals that contemporary legislative proposals heart both of the encompassed and of the Fourteenth Amendment equal public places right ex- treatment —a plicitly recognized to be “civil” rather than “social” right. repeatedly emphasized per- was “that It colored 9 rights enjoy sons shall the same civil as white persons,” right go colored man “to that the should have the where he that he- pleases,”10 “practical” should have free- 8 pointed Appendix As Mr. Justice Black out in the dissent his California, in Adamson 46, 68, 332 U. S. 107-108: proponents opponents

“Both of 1 of and the [Fourteenth] § spoke Rights amendment of its relation to the Civil Bill which had previously passed been over the President’s veto. Some considered any might the amendment settled doubts there be as to the constitutionality Rights Cong. Globe, Cong., of the Civil Bill. [39th Sess.,] 2511, Rights 1st 2896. Others maintained that Bill the Civil would be unconstitutional unless and until the amendment was adopted. Cong. Globe, 2461, 2502, 2506, 2513, thought 2961. Some nothing Rights that amendment was but the Civil 'in another [Bill] shape.’ Cong. Globe, 2459, 2462, 2465, 2467, 2498, 2502.” 9 Cong. Globe, Cong., Sess., (Senator Sumner). 39th 1st at 684 10 Id., (Senator Trumbull). at 322 to the recurrent references right go .pleasure” being “among rights “to and come at as the natural understanding concepts of free men” reflect the common liberty citizenship right movement, and embraced the to freedom of id., right freely. 41-43, 111, the effective to travel See 475. Black “personal liberty stone had stated that of individuals” embraced power locomotion, changing situation, moving “the per- or one’s 294 guarantees “the and that he should share dom,11 common law.” good

of the old acceptance that culminated In the debates granting “civil,” Amendment, Fourteenth the theme rights constantly from recurred.13 distinguished “social,” commonly recognized that some Although it was the critical misty, areas the civil-social distinction was rights” “civil generally is understood fact that was certainly right places included the of access to clearly places these were most accommodation traditionally the relations of men areas life where were regulated by governments.14 opponents both Indeed, direct, place may son to whatsoever one’s own inclination without restraint, imprisonment or unless due course of law.” Black- (Lewis stone, 1902), heritage ed. 134. This was Commentaries correctly Dulles, described in Kent v. S. 125-127: U. right part ‘liberty’

“The to travel is a of which the citizen deprived process be cannot without due of law under the Fifth [and Anglo-Saxon Fourteenth ... law that Amendments]. early emerging Magna at least as as the Carta. . . . Freedom of direction, movement across frontiers in either inside frontiers as well, part heritage. abroad, was a of our Travel like travel within country, may necessary may for a livelihood. It be as close eats, wears, to the heart of the individual as the choice of what he or reads. Freedom of movement basic our scheme of values. Nevada, 35, 44; Fears, See Crandall v. Williams v. Wall. 179 U. S. 274; Aptheker 270, California, Edwards v. 314 U. S. 160.” See also Secretary State, post, p. 500. of right freely always thought This to move has been to be and is now inextricably right more than ever linked with the of the citizen to be accepted equally places public and to be treated in of accommodation. opinion Douglas, ante, See the of Mr. Justice at 250-251. 11Cong. Globe, (Senator Sess., Trumbull). Cong., 39th 1st at 474 (Senator Wilson). 12 Id., infra, 111 at See at note 17. 13 g., id., 476, 599, 606, 1117-1118, 1151, 1157, 1159, E. 1264. supra, Munro, 4, Frank and note at 148-149: “One central theme emerges equality’: from talk of ‘social there are two kinds of rela men, tions of those that are controlled the law and those that are Rights Act bill of the Civil Bureau and Freedmen’s refutation without complained, frequently of 1866 grant Negroes would measures these contradiction, accom- places in right equal treatment Davis Ken- modation. Senator Thus, example, bill, protested in Bureau opposing the Freedmen’s tucky, in the- persons] hotels, with “commingling [white privileges, rights and other civil steamboats, aters, recently . . .” always to free negroes, were forbid until granted by Massachusetts.15 clearly Supreme

An of Iowa of the Court decision mean- contemporary understanding reflects Coger In ing Rights of the Act of v. North Civil 1866. Co., 37 woman West. Union Packet Iowa colored sought battery occurring for assault and when damages ordered Mississippi the officers of a River steamboat from a dining that she be table accordance removed main practice segregation dining room with giving judgment plaintiff, on boat. for the Rights of 1866 Supreme quoted Iowa Court the Civil Act and concluded that: statute, is secured equality

“Under this comprehensive to the The is negro. language right rights growing and all property includes the It includes within its broad terms out contracts. every arising right of life. the affairs transporta- passenger under the contract is col- tion with the carrier included therein. The guarantied equal ored equality protec- man by purely personal former civil controlled choice. The involves rights. proponents rights, the statements latter social There are taken, of the Amendment from which a different definition could be infra, but usual one.” at notes this seems to See added.) Cong. Cong., (Emphasis 1st Globe, Sess., 936. 39th 541, 916, App. 70. See also id... at neighbor. These laws with his

tion of the white him rights to citizen of are the secured regard his and con- States, color, United without by secured privileges, stitute are [the his Id., at 156. Fourteenth Amendment].” reject on The Court then went the contention that not, . rights “social, therefore, asserted were and . . by and either of the statutes, secured the constitution Id., State or of the at 157.16 United States.” Underlying congressional discussions, and at heart guarantee equal Fourteenth Amendment’s protection, was the assumption by that the State statute good “the common obligated old law” was guarantee all citizens places access to accom- obligation modation. This was rooted in firmly ancient 16The doubting rights court continued: “Without that social and privileges protection are within not of the and laws constitutional provisions question, privileges we are satisfied that the and plaintiff which were denied are within that class. She was refused equal enjoyed by accommodations passengers. to those white . . . unobjectionable deportment She was and . character. . . She complains deprived society per not because she was of white Certainly sons. passengers no one will claim that the in the cabin of a steamboat are there in the character of members of what is society. companionship called Their as travelers is not esteemed any people class of plain our to create social . . . relations. The privilege, tiff .. . claimed no privileges per social but substantial taining property to her protection person. and the of her It cannot be doubted that she excluded from the table and cabin . be . . prejudice against cause of object entertained her race .... The the amendments of the federal constitution and of the statutes above to, referred to relieve citizens the black race from effects prejudice, protect person property them from its spirit. Slaughter disposed House Cases Wall. We are [16 36]. according very spirit to construe these laws to their intent, so equal rights equal protection regard shall be secured to all nationality.” Id., less color or Ferguson at 157-158. See also Gies, 82 Mich. 46 N. W. 718. bailments, In on his work Anglo-American tradition. tradition: Judge Story spoke all to travellers “An is bound ... take innkeeper if he persons, them, and entertain wayfaring and compensa- for a them, can reasonable accommodate with goods proper their guard and he tion; must If refuses diligence. innkeeper improperly an ... for a is liable to provide guest, or he receive on therefor. . . .” Commentaries Story, be indicted 1878) ed., 9th (Schouler, the Law of Bailments § 476.17 innkeeper keeper of a common inn The defined an as “the treatise passengers . .” lodging . .

for the and entertainment of travellers and (Schouler, ed., Story, on 9th Commentaries the Law Bailments supra, 10, op. cit., stated 1878), Blaekstone, note §475. general a more rule: victualler, sign opens inn-keeper, hangs a and an other out

“[IJf travelers, implied engagement to entertain all his house is an for upon assumpsit persons way; universal an who travel that and thid he, damages against lie him for if without action on.the case will added.) good (Emphasis In reason, refuses to admit a traveler.” Innkeeper’s “victualling Tidswell, Legal p. (1864), Guide place people provided with and is as a “where are food house” defined Dictionary liquors, lodgings,” Stroud, in 3 Judicial but not with and provided victuals, (1903), persons but house where are with “a lodging.” without

Regardless, however, precise of the content of state common-law adoption legal rules and status of restaurants at the time spirit Amendment, the the common law was of the Fourteenth Cotton, apparent. 1701 in 12 Mod. both familiar and Lane v. J., 472, 484-485, Holt, C. declared: had any subject upon public trust takes himself a “[W]herever ipso eo fellow-subjects, of the rest of he is bound benefit his subject things in all within the to serve the are reach pain comprehension office, against under an action of such an my I horse, road fall off come to him .... If on the a shoe put it, smith an on, smith to one and the refuse to do action have against profession him, made of a will lie because he has trade general first and obligation

“The most on [carriers passengers] carry passengers they whenever ready themselves, pay offer are for their trans- portation. This results from their setting them- selves up, like and common innkeepers, carriers for a goods, common employment on hire. They are no liberty more at to refuse a passenger, if they have sufficient room and accommodations, than an innkeeper is to refuse suitable room and accommodations a guest. Id., to . . at §§ 590, It was in this vein the Supreme that of Mississippi Court spoke when in applied 1873 it equal accommodations public good, is for the thereby exposed and has and vested an inter- est of king’s subjects himself in all the employ will him in the way of his innkeeper trade. If an guest refuse to entertain a where his full, house is against an action will him, lie and so against carrier, a if his loaded, horses be not and he refuse to take packet proper a to be sent a carrier full, .... If the inn be or the laden, carrier’s horses the action would not lie for such re- fusal; profession but one public that has made employment, of a bound to employment the utmost extent of that public.” to serve the Illinois, See Munn 113, S. (referring U. 126-130 to the duties traditionally imposed pursues on public one who employment a and public office”). “a sort exercises Furthermore, pointed it should be out the Framers of the Fourteenth Amendment, and the men who debated Rights the Civil 1875, Acts 1866 and thinking only were not existing in terms of thinking common-law duties but generally were more the-customary expectations of white respect citizens with places to which were public considered and which ways were in regulated by various infra, laws. See Finally, at 298-305. as the acknowledged Court Virginia, Strauder v. West 303, 100 U. S. 310, the “Fourteenth attempt Amendment makes no to rights enumerate designed protect,” to adopted for those who it were conscious that a constitu- “principle tional to capable be vital must be application of wider than gave the mischief which it birth.” States, Weems v. United infra, U. S. 373. See at 315. a Negro civil bill to provisions State’s a refused admission to theater: “Among call common those customs which we down from law, have remote past, come us application a to those special are rules have public who a commu- quasi sustain relation nity. wayfarer The and traveler had food lodging inn-keeper; from the demand accept passengers common carrier was bound to all and goods according offered for transportation, his So, means. all who too, applied admission to shows and amusements, were entitled to admission, in each instance, for a refusal, an action lay, on the case reason sufficient were unless shown. statute subjects deals with which have always legal State, been under control.” Donnell v. Miss. 680-681. similar manner, Sumner, discussing Senator Rights Civil Act of quoted referred to from Story, Kent and Holingshed, Parsons on the common- law innkeepers of duties and common carriers treat all Cong. Globe, alike. Sess., 42d Cong., 2d 382-383. regard With to “theaters and of places public amuse- ment,” the Senator observed that:

“Theaters and places public other amusement, by law, licensed are kindred to inns or public con- veyances, though less by jurisprudence. noticed But, like their prototypes, they provide undertake to public the under sanction of law. They public are institutions, regulated if not created law, enjoy- ing and in privileges, consideration assum- thereof, ing duties not unlike those of inn public the and the conveyance. From essential reason, the rule should be the same with all. As inn the cannot close its any conveyance refuse seat to public or the

doors, it be so must paying condition, decent traveler, public amuse- places the theater and other with peculiar object is institutions whose ment. Here are placed has been ‘pursuit happiness,’ the rights of all.” at 383.18 among equal Id., the Amendment, Fourteenth § The first sentence all Civil War Amend- spirit pervades of which 18Similarly, said: Senator .Pratt reading deny every “No one colored man Constitution can citizen, such, legislation may equal go, is a far as entitled to so privileges people. with white Can it be doubted that for any privileges a denial of of the or accommodations enumerated in [proposed supplement Rights the bill to the Act of he Civil 1866] against inn-keeper, could maintain a suit at common law public proprietor carrier, or or who lessee theater withheld Suppose presents public inn, kept them ? a colored man himself at a dеcently public, for the accommodation of is clad and behaves ready customary pay charges is himself well and for rest and refreshment, and is either refused admittance or treated as an inferior guest placed consigned garret, at the second table and to the — compelled upon any his to make couch the floor—does one doubt that upon appeal justly courts, an to the if the law administered would pronounce inn-keeper responsible damages him in for the unjust suppose Prejudice jury-box discrimination? I not. in the might deny damages; him substantial but about the law the mat- opinions. public ter there can be no two same is true carriers engagement carry on land or water. Their with the is to all persons conveyance who seek on their cars or boats to the extent fares, persons their facilities for certain established and all who any contagious behave themselves and are not afflicted with disease equal they pay equal are entitled to accommodations where fares. asked, you lay down, “But it is if the law be as where the neces- sity open legislation, My for this courts are since the to all ? answer is, remedy inadequate expensive, and too and involves patience pursue too much loss of time and it. When a man is traveling, home, pay every and far from it does not to sue inn- keeper who, company which, by unjust or railroad insults him dis- Practically remedy Cong. crimination. is worthless.” 2 Rec. 4081-4082. v. Dred Scott designed to overrule obviously was

ments, the constitu- that and to ensure 393, 19 How. Sandford, rights all attendant citizenship with concept of tional It Negroes. embrace would henceforth privileges and en- necessarily became citizens Negroes as follows by customarily possessed right, titled share accommodations. public of access to citizens, other at com- existing obligations affirmative history of the negative “deny explain partly law serves mon — Amendment. of Fourteenth any person” language — Negro’s when the under state law, For it assumed he would assured disability removed, citizen was guaranteed had law rights civil public the same opinion pervades This view persons. white Gies, Mich. Ferguson Michigan in Supreme Court had in 1890. That State 718, W. decided 358, 46 N. any the denial to prohibiting a statute recently enacted equal and accommo- regardless race, of “the full person, . . and of . . restaurants . privileges . and . dations . . amuse- accommodation and places public all other an action Negro plaintiff brought A ment . ...”19 from the refusal of a restaurant damages arising whites. him a row of tables reserved for owner to serve Michigan court plaintiff’s claim, upholding observed: negro

“The the Constitution the United now, man, full with white States, given citizenship attend privileges citizenship and all the man goes. him Whatever a white wherever he specifically equal The statute referred to “the full and accom restaurants, modations, advantages, facilities, privileges inns, water, eating-houses, barber-shops, public conveyances on land and places and amuse theaters, and all other accommodation subject only ment, to the conditions and established limitations 364, 46 law, applicable to all citizens.” 82 alike Mich. N. W. in a man public also,

has black has because place, Id., of such at citizenship.” 364, W., 46 N. at 720. emphasized light then that in of this court constitu- principle tional the same would follow whether result claim rested on a or on common statute law: common

“The law as it existed in this before State passage statute, this and the colored before man became a citizen under our Constitution and laws, gave to man a remedy against any the white unjust discrimination to the citizen in all public It places. must be that, considered when suit was planted, the colored under the common law man, of this was State, entitled to the same privileges places as the man, white he must be treated there; right same and that his any action for injury arising from an unjust dis- against him just crimination is perfect and sacred courts any as that of other citizen. This stat- only ute is declaratory of the common I law, as under- stand it now to Id., exist in this State.” at 365, 46 atW., N. 720.20

Evidence such as this demonstrates that Mr. Justice Harlan, dissenting in Civil Rights Cases, 3, 109 U. S. surely was correct when he observed:

“But what was secured to colored citizens United States —as between them and their rеspective by the national grant to them of State citi- States — zenship ? With what rights, privileges, or immunities did this grant invest them? There is one, if there be no exemption from race discrimination in re- other — spect any civil right belonging to citizens of the emphasized The court also under consideration clearly distinguished a “civil” as from right. a “social” See Mich., at W., 720-721; 46 N. 367-368, supra, see also at notes infra, 16 13-14, at note That, surely, their State. white race in the same jurisdiction when within the privilege constitutional constitu- And must be their such of other States. the recent right, State, own unless tional in their out to splendid baubles, thrown amendments be treat- generous those deserved fair and delude who Citizenship in ment at the hands of the nation. country necessarily imports equality at least civil State. every race the same rights among citizens in re- citizenship that, in American It fundamental no of such shall be discrimination spect rights, there or cor- by the its or individuals State, officers, or or porations exercising public authority, functions previous or against any citizen because of race his Id., at 48. condition servitude.” reacting Amendment, The Framers of the Fourteenth the States against Codes,21 Black made certain that the enacting guaranteed equality by could not frustrate the discriminatory sanctioning discrimina- legislation time in the tory treatment. At no the consideration could Achieve suggested was it that the States Amendment by withdrawing the traditional prohibited result same Negroes places. granting public access right of to protection laws, equal citizenship proprietors thought permit States could that the never general their invita- public places restrict inns to exclude and to order public citizens tion to the the so-called “Black War, States enacted After the Civil Southern Negroes emancipated imposing reducing the Codes” disabilities though longer society,” they were no even the status of “slaves of Cong. Cong., Globe, 1st masters. 39th of individual See chattels Douglas, ante, 516-517; at n. 3. opinion Sess., Mr. Justice Documentary codes, Fleming, His For substance of these see tory (1906), 273-312; McPherson, The Political of Reconstruction During Period History of Reconstruction of the United States (1871), 29-44. Negro Negro citizens. The Fourteenth

Amendment was therefore cast terms under which judicial power would come play into where the State withdrew or guaranteed otherwise denied the protection legal “from discriminations, implying inferiority in civil society, lessening security of Negroes’] enjoy- [the ment of . . . .” Strauder enjoy others Virginia, v. West S.,U.

Thus a assumption fundamental of the Fourteenth Amendment was that the States would continue, they had for ages, enforce the freely citizens to enter public places. This assumption concerning the affirma- duty attaching tive places of public accommodation was so experience rooted in citizenry of the white together that law and custom blended indistinguishably.22 Thus it seemed natural for Supreme Court of Missis- sippi, considering public a accommodations provision in rights civil statute, to refer to “those customs which we call the common that law, have come down to fromus State, Donnell past,” remote Miss., 680, 48 at Lewis, supra, See note 146: “It was assumed more Congress than a few members of places that theaters and of amuse ment opened would be or could be to all as a result either of the Equal Protection Privileges Clause or the and Immunities Clause. Why would the framers believe this? Some mentioned the law’s regulation of enterprises, such enough. but this is not Some other standard must regulated delineate equal between the who offer must treatment and those who need legal right not. Whites did not have a to demand enterprises, they admittance to but were admitted. [such] Perhaps conduct, observed required conduct was confused with just as the observed status of governments— the citizens of all free governments Washington, J., that could observe—was mistaken rights for inherent important to the point status. The is that the framers, them, or some of believed open places the Amendment would public accommodation, study and of the debates reveals this belief be expectations the observed of majority, prac tantamount in legal rights. tice to . . .” proposals various that the significant and thus seems to dis- interchangeably referred often legislation federal “custоm.” or under under “law” criminatory acts done the Fourteenth under it was understood sum, then, places proprietors the duties Amendment long had they as remain would accommodation affirmatively obli- now States would and that the been Negro as well rights ran to these gated to insure white citizens. after years seven Act of enacted Rights

The Civil all provided that specifically Amendment, the Fourteenth enjoyment equal must have “the full citizens privileges of facilities, and accommodations, advantages, theaters, and water, conveyances on land inns, public . . . .” 18 Stat. 335. public amusement places other was re- legislation, constitutionality this federal Cases, Rights Civil by this Court viewed purports case present 3. The 109 U. S. dissent early in that concept articulated follow “state action” had declared under the Court decision. There Amendment: Fourteenth character that particular is

“It State action of individual invasion Individual prohibited. is of the amendment. subject-matter scope. It deeper has a broader nullifies It legislation, and State action makes all State void im- kind, every impairs privileges which the of or States, of which munities citizens United liberty due property in or without injures life, them Cong. Globe, Supplementary g., Act, E. The Freedmen’s Bureau 27; Sess., 318; Rights 1866, 14 Cong., The Act of Stat. 39th 1st Civil 140; Rights 1870, The Civil Act Act of 16 Stat. Enforcement April 13; U, C. 20, 1871, 17 S. 1983. See also the Stat. § (quoted infra, Rights Cases, 3, 17 language 109 U. S. of the Civil 25). note the

process any or denies to them law, equal the laws.” 109 U. at 11. protection S., added.) (Emphasis strong writing Justice for the Court over Bradley, the

Mr. dissent of Mr. held Harlan, proprietor’s Justice racially equal public motivated denial of access to a not, accommodation did without more, involve state action. is of bar importance It central to the case at expressly that the Court’s decision was predicated: “on assumption equal the that a to enjoy accom- all privileges convey- modation and in inns, public places amusement, ances, one of essential citizen which no can State abridge or Id., interfere with.” at 19.

The Court added that:

“Innkeepers and public by all carriers, the laws of so far States, as we aware,24 are bound, are to the 24Of the Rights five cases Cases, involved in the Civil con two theatres, cerned two concerned inns or hotels one concerned a common carrier. In (involving United States v. Nichols a Missouri hotel) inn or premise upon Solicitor General said: “I sub ject of inns the common in law is force in Missouri . . . .” Brief States, 2, 4, the United 1, Nos. 460, Term, p. 1882, October In 8. Ryan (a States v. theatre) United California and in United States Stanley (a Kansas inn hotel), it seems that common-law duties applied as well as 1897, state antidiscrimination laws. Calif. Laws 137; p. 1874, p. Kan. Laws Singleton 82. (New United States v. opera house) York a state statute barred racial discrimination “theaters, places or other p. 303; amusement.” N. Y. Laws 1881, p. Laws Memphis (a In Robinson v. Tennessee railroad parlor car), legal duties were less clear. The events occurred 1879 and the trial was duty held 1880. The common-law of car had riers existed and, appears Tennessee from record, what in the was assumed judge, charging jury, trial to exist at the time of However, trial. repealed in 1875 Tennessee had the common- rule, p. law Laws 216, and in State amended law proper to furnish accom- facilities,

extent their unobjectionable persons good modation all who 25;25 apply Id., faith for them.” at This assumption, validity whatever the time its Although the 1883 has unfounded. decision, proved be years reconstruction ended in six before the Civil Rights Cases, there was immediate action little places South or in fact, to establish law segregation, require separate equal a carrier to furnish but first-class accom- 1881, p. modations, Laws 211. 25Reasoning assumption, from this same basic the Court said that Congress power,to legislation: lacked the enact such some “[U]ntil passed, through State law has been or some State action its officers agents taken, rights sought or has been adverse to the citizens protected by Amendment, legislation be the Fourteenth no of the amendment, any proceeding United States under said nor under such activity: prohibitions legislation, can be called into for the of the against amendment are State laws and acts done under State author ity.” again: proper S., at 13. And is civil U. to state that “[I]t rights, guaranteed by against such as are the Cоnstitution State impaired by wrongful aggression, individuals, cannot be acts by authority unsupported shape laws, customs, State in the or individual, judicial wrongful proceedings. an executive The act of by any private unsupported authority, simply wrong, such or a individual; rights injured crime of the of that an invasion of the by party, ; way it is true . . . but if not sanctioned in some may force, presumably State ... his remain in full Id., vindicated resort to the laws the State redress.” at (Emphasis added.) argument Attorney Mississippi General of in Donnell State, 661, explicitly 48 Miss. related the State’s new ac- commodations law to the Thirteenth and Fourteenth Amendments. “power He the Amendments to en- stated that conferred a national ‘by force, appropriate legislation,’ rights, privileges these and immuni- newly citizenship upon ties of enfranchised class . . he then legislature sought, concluded “the of this state has this [anti- any by congress act, to render unneces- interference discrimination] sary.” Id., assumption at 668. This view seems to accord with the underlying Rights the Civil Cases. benevolent, perhaps This or accommodation.26 public in a decade and then attitude endured about

passive, mandating began unequal to enact laws late 1880’s States three-quarters of public places.27 Finally, in treatment legislative declared such century after this Court later, and make began action States to utilize invalid, some common law to sanction similar discrimi- available their natory treatment. applying statutory deny,

A State its or common law28 to protect' rather of access to accom- than opin- has of the clearly assumption modations made the 26 15-26, Woodward, Strange Jim (1955), Career of Crow points segregation pervasive out that in modern and form is a its relatively phenomenon. Although speed recent of the movement varied, 1904, example, Maryland, the re it was not until spondent legislation case, Jim extended Crow railroad 188; 1904, 110, p. coaches and other common carriers. Md. Laws c. 1908, 248, p. Negroes Md. Baltimore, Laws 88. In the 1870’s c. successfully Maryland, challenged attempts segregate transit facili City Passenger Co., reported in ties. See v. Baltimore R. Fields 3; American, 1871, p. 4, Sun, 14, Baltimore Nov. col. Baltimore Nov. 13, 1871, p. 4, col. 2. appellee Florida, Not did in Robinson Flor until 1887 v. ida, ante, requiring separate passenger 153, enact a railroad statute 1887, p. for the 3743, facilities two races. Fla. Laws 116. The c. State, following pattern unique, that was not had not immedi ately repealed its reconstruction antidiscrimination statute. Fla. 92; Digest 1891, 1881, 19, pp. 171-172; p. 4055, c. see Fla. Laws c. 1892, p. Fla. Rev. Stat. viii. frequently pro This Court has held that and liberties by prevail common-law, tected the Fourteenth Amendment over state statutory, policy as well as “The rules. fact that is ex [a State’s] judicial by pressed organ legislature . . rather than we . repeatedly '[R]ights have ruled to be immaterial. . . . under [the power State, amendment turn on the of the no matter Fourteenth] organ Dockery, 165, what it acts.’ Missouri v. 191 U. S. 170- Hughes Superior 460, Court, 71.” 339 U. S. 466-467. See also parte Virginia, 346-347; Ex 100 U. S. American Federation of Swing, 321; Sullivan, Labor v. New York 312 U. S. Times Co. v. S.U. has, as the Rights inapplicable ion in the Civil Cases de- recognized, have opinion would himself author of that In- protection. constitutionally equal nied the intended in the explicitly stated light assumption so deed, Brad- Cases, Justice Rights significant it is Civil Mr. in correspondence for the had ley, spoke Court, who earlier expressed the view that Judge with Circuit Woods making only prohibits Fourteenth “not Amendment abridge privileges of laws which enforcing shall to all citizen; prohibits denying the states from but persons jurisdiction equal protection within its of the 29 taking laws.” In which is consistent with position, Rights Coses,30 opinion assumption his and the in the Civil “Denying he concluded that: includes inaction as well as denying equal protection action. And of the laws includes the omission to as well as the omission protect,

29 Bradley (later Justice) Judge Letter from Justice to Circuit (unpublished draft), 12, 1871, Bradley B. William Woods in the Mar. Papers file, Jersey Society, Newark, on The New Historical New Jer sey; Supplemental Curiae, Brief for the States as Amicus United 6, 9, 10, 60, pp. 12 Term, 1963, Nos. and October 75-76. For a Liberty excerpts, Roche, Age convenient source see Civil Enterprise, (1963). 103, 31 U. of Chi. L. 108-110 See Rev. 30-31, ileges and immunities of citizens States, they of the United are secured the Cas., posi- constitution . . . .” 26 Fed. at 82. This Bradley years tion is to similar that of Justice dissenting two later in Slaughter-House Cases, the 36, 111, impor- 16 Wall. 118-119. More present purposes, however, tant for analyzing is the fact that in the problem “private” (nonstate) action, Judge of reasoning Woods’ language Bradley’s follow that of judge Justice letters. The concluded that under Congress the Fourteenth Amendment could adopt legislation: protect “to rights the fundamental of citizens of against unfriendly the United States legislation, insufficient state only prohibits for the fourteenth making amendment not the or en- forcing abridge of laws privileges which shall the citizen, of the but prohibits denying persons the jurisdiction states from to all within its equal protection Denying the of the laws. includes inaction as well action, denying equal as protection of the laws includes the protect, omission to pass as well as the protec- omission to laws for Cas., tion.” 26 Fed. at 81. meaning “state action” within responsible

constitute g., Ala- Marsh v. Amendment. See, of the Fourteenth e. Kraemer, 1; S. Shelley U. bama, 501; v. 326 U. S. Jackson, 346 461; S. Barrows v. Terry Adams, v. 345 U. S. 249. U. judiciary present responsibility case the

In Fourteenth Amendment principles applying in failed protect has to Maryland clear. The State public to accommoda- constitutional petitioners’ attempting exer- and is them for prosecuting tions now court right. Maryland’s highest The decision of cise that de- be sustaining trespass convictions cannot these is as affirmative “neutral,” the decision scribed if had an effect as the State enacted unconstitutional authorizing places discrimination in explicitly law racial obligated accommodation. A under State, system maintain a of law Fourteenth Amendment Negroes their claim protection are not denied may community, equal to be treated as members con- trespass its not use criminal laws frustrate may added, be stitutionally granted right. Nor, it should right by legitimating proprietor’s a State frustrate this permit self-help To would be attempt self-help. at “[t]oday, no than 50 disregard principle less problems growing out of ago, the solution to the years promoted depriving citizens race relations 'cannot privileges,’ Buchanan of their constitutional City Warley S., . Watson v. v. . . U. 80-81.” declared in Cooper S. 539. As Memphis, U. are Aaron, 358 “law and order ... to be 1, 16, U. S. ... by depriving Negro consti- preserved [his] rights.” tutional the dissent intimates that best spite its view this, of law and with the needs order. Thus it is

comports a betray plan our whole and tranquil “It would said: say citizen, per- that because of his orderly society to out- beliefs, sonal is cast attitudes, prejudices, habits, call for aid of protection and the side the law’s cannot peace.” and uphold preserve law the officers sworn to the Post, readily all will statement, at 327-328. This to which critical Whose conduct question: slides over the agree, every protection”? is entitled to the “law’s Of course law and agrees pre- member of this order must Court weight vail; question protective whether the strength of law and order will be cast favor of the proprietors of-peti- claims or in favor the claims my tioners. view the Fourteenth re- Amendment this issue right petitioners solved in favor public accommodations and it follows that the exercise constitutionally granted right they of that are entitled to protection.” long very “law’s Today, ago, “[t]he liberty certainly essence of civil consists every individual to claim protection of the laws Marbury Madison, 1 Cranch

IV. Douglas My convincingly Brother demonstrates that has by suggesting dissent constructed straw man this case involves “a property right owner’s choose his Post, social or business associates.” at 343. The restau- rant involved in this concededly open large case is to a seg- ment of the public. daily Restaurants such as this open their doors millions of Americans. These estab- provide lishments a public necessary today service as as the inns and carriers of Blackstone’s time. should It recognized claim Negro peti- asserted tioners concerns such establishments does not infringe upon of property personal owners or associational interests. frankly

Petitioners state that the “extension of con guarantees stitutional the authentically private choices wholly of man is any unacceptable, constitutional have reduced itself would result theory leading ex protection constitutional absurdity.” Indeed, against assures private and association to privacy tended before, noted As equality. imposition social Amendment Fourteenth enacted the Congress rights of “civil” particularly conscious rights.32 from his “social” distinguished man should be but any regrettable, form are bigotry Prejudice to close every person constitutional it his social any to- or to choose person or club home his solely on the basis partners and business intimates and other including race. These personal prejudices are association rights pertaining privacy private constitutionally protected liberties. themselves equal access to however, with a claim of here, We deal sig- a claim which accommodations. This public is not interests; nificantly impinges upon personal associational upon private the control infringing nor is a claim ruling A property public judicial not dedicated to use. and free- inevitably on this claim involves the liberties by Supreme reasoning approach is reflected in the stated Michigan Court of in 1890:

“Socially may they please law, people within the and whites do as they may please may together, blacks, and exclude whom associate separa- dwellings private grounds; but there can be no from their public places people of their color alone tion in between on account will law sanction. family goes himself or with his to a “The man who either people. expect mingle with classes of He place must to meet and all caprice prejudice views, that ask, to suit his or or social cannot wish to associate shall be excluded because he does not or that man may closely line as as he chooses at with them. He draw his social public place home, private places, but in a or in other he connot [sic] him, people carry privacy with or ask that not as of his home Ferguson step appears.” good great is shall aside when he as he supra, Gies, 363, 367-368, W., 720, 721. Mich., 46 N. at See at notes 13-14. proprietor

doms both of the restaurant and of the Negro citizen. The dissent would hold in effect that the proprietor’s choosing restaurant customers interest on preferred Negro’s the basis race is to be to the right to equal serving the pub- treatment business lic. The history purposes and of the Fourteenth Amend- indicate, however, ment the Amendment resolves apparent in conflict of liberties favor of Negro’s the right to equal public accommodations. As the Court Alabama, said in Marsh v. 326 501, U. S. 506: “The an opens more for owner, advantage, up property his his by public use the the general, more do his become by statutory circumscribed and constitutional 33 rights of those who use it.” The broad acceptance of public in this and other restaurants clearly dem- onstrates proprietor’s in private interest unrestricted slight.34 association is relationship be- tween innkeeper the modern or restaurateur and the cus- relatively impersonal tomer is and evanescent. This is highlighted Columbia, City cases such as Barr of ante, Columbia, 146, City at. Bouie v. post, 347, at Florida, ante, Robinson v. at 153, in which Negroes are invited into all departments of the store but nonetheless private the name of ordered, property association or rights, purchase not to and eat as food, other customers on do, premises. As the history of the common law Illinois, Cf. Munn v. 113, “Looking, then, 94 U. S. 125-126: law, the common [property] right from whence came the which the protects, private Constitution property we find that when is ‘affected public juris interest, privati only.’ with a it ceases to be This was said Lord years Chief Justice Hale more than ago, two hundred in his Maris, Harg. Tracts, treatise De Portibus Law and has accepted objection been without an essential element in the law property Property ever since. does public become clothed with a public interest when used in consequence, a manner to make it of community large.” and affect the supra, See Lewis, note at 148.

and, indeed, graphically of our own times illustrates, proprietors accommodation places of'public interests always adapted have been to the citizen’s felt need for public deep- accommodations, need which is basic and history purposes rooted. This and thе of the Fourteenth Amendment compel right the conclusion that to be places public regardless served in accommodation constitutionally color cannot pro- subordinated to prietor’s ‍​​‌‌​​‌‌​​​‌‌​​​​‌‌‌‌‌‌‌‌​​​‌‌‌‌​​‌​​‌​​‌‌‌‌​​‌‌‍discriminatorily interest refusing service. course, although present Of case involves the in a restaurant, service the fundamental principles of apply Fourteenth Amendment with equal force to places other accommodation amusement. important presented Claims so as those here cannot be by asserting dismissed Fourteenth Amendment, clearly while addressed to and public inns conveyances, did contemplate lunch counters soda fountains. essentially Institutions such as these serve the same needs in modern life did innkeeper as the and the carrier at common law.35 guard against It was concep- to narrow tions that Chief Justice Marshall admonished the Court to forget never it is “that a constitution expound- we are ing ... constitution intended to for ages endure to come, to and, consequently, adapted to the various crises of human affairs.” McCulloch Maryland, v. 4 316, Wheat. 407, 415. Today, throughout history the of the we Court, should “in remember determining that a provision whether of the Constitution applies to new subject it matter, significance is of little it is one with which the framers were setting not familiar. For in up enduring an framework of government they undertook to carry out the indefinite future all the vicis- changing situdes the affairs of men, those fundamental purposes which the instrument itself discloses.” United Classic, States v. U. S. supra, See at note 17.

V. evidence demonstrates historical my view the In accom- public places of access to the traditional Congressmen to familiar quite modation were Fourteenth naturally assumed that who general public Negroes. rights to traditional these Amendment extended as convinc- evidence were not if historical But even Board Brown logic of v. ing be, as I believe it funda- was on as it Education, S. based 347 U. interpretation pro- constitutional principle mental peti- Marshall,36 requires Justice claimed Chief claim be sustained. tioners’ was history Brown, stating that

In after available segregated public specific issue on the “inconclusive” say: toon the Court went schools, turn the we cannot approaching problem, “In when the Amendment clock back Plessy Ferguson was or even 1896 when adopted, in the public consider education written. We must place development present full its light of its Only Nation. in this throughout American life public if segregation way can be determined protec- deprives plaintiffs equal schools these at 492-493. S., tion of the laws.” 347 U. places makes no effort to assess the status of dissent “in light accommodation of” their “full and . . . life of development present place” Ameri- failing approach can to adhere to that citizens. ignores pervasive principle a of constitutional dissent departs and from the ultimate adjudication logic aptly Brown. As Mr. Justice Holmes so said: dealing we are with words also are that “[W]hen a like the Constitution the United act, constituent 36 Original Understanding Segregation Bickel, The See and the- (1955). Decision, 1 69 Harv. L. Rev.

317 they have called into that we must realize States, which could not have development being life a gifted of its by the most completely foreseen been or to enough for them to realize begetters. It was has organism; had an taken hope they created much sweat and has cost their successors century a nation. The prove they and to created blood light of our case before us must be considered experience merely whole and not that of what was Holland, years ago.” said a hundred Missouri v. 252 U. S. 433.

Conclusion. right constitutional of all The Americans be treated equal members of the community respect with public right granted by accommodations is a civil people in the Constitution —a too im- “is portant society our free stripped judicial pro- to be Sanders, tection.” Wesberry 7; Cf. v. 376 S. Baker U. Carr, 369 suggest U. S. 186. This is that Con- gress authority lacks under 5 of the Fourteenth Amend- § or under the im- ment, Clause, I, 8,§ Commerce Art. plement protected by § of the Fourteenth In give-and-take legislative Amendment. of the process, Congress drawing guide- can fashion law lines and necessary appropriate practical to facilitate distinguish administration and to genuinely between private accommodations. can contrast, we pass only justiciable coming on issues here on a case-to- case basis. today more than it was over is, should true be,

It a century ago great advantage of the Ameri- “[t]he they cans is that . . . are born that in equal” eyes they “are all of the same estate.” law Tocqueville, Democracy (Bradley 1948), De in America ed. States, Jay, spoke of the John

first Chief Justice United great purpose the “free air” of American life. The keep equal. Amendment is to it free and Fourteenth no or can, the Constitution American should, Under I citizenship. denied fundamental freedom join reversing trespass therefore these convictions. with whom Harlan Black, Mr. Justice Mr. Justice dissenting. and Mr. Justice White join, constitutionality any This case does not involve the existing proposed legislation requiring or state or federal people regard restaurant owners to without serve color. present The crucial issue which case does but which the Court does not decide is whether the Fourteenth Amendment, of itself, forbids State to enforce its tres- pass person laws to convict a who privately comes into a restaurant, owned is told that because of his color will he served, not be and over protest the owner’s refuses to We leave. dissent from the Court’s refusal to decide question. For stated, reasons we think that question should be decided and that the Fourteenth Amendment does not forbid application of a State’s trespass laws. petitioners were convicted a Maryland state

court on a charge they “unlawfully did upon enter and cross premises over the land, and private property” Hooper Co., Food Inc., having “after duly been notified Albert Warfel, who was then and there the agent servant and for Hooper Food Co.,” not to do so, in violation of Maryland’s criminal trespass statute.1 The 1“Any person persons or upon who shall enter or cross over the premises land, private or property any person persons in this having State after duly been notified agent the owner or his to do so shall be guilty deemed of a misdemeanor Code, Md. Art. § showing summary in was based on a record conviction that: includ- twenty Negro students,

A group fifteen to to ing Hooper’s' went Restaurant petitioners, a “sit-in counsel describes as engage their what would serve protest” because the restaurant not Negroes. Hooper, The on of Mr. hostess, orders owning restaurant,2 president corporation of their “solely color,” told on the basis them, refused to would not serve them. she Petitioners man- requested by when the hostess and the leave seats, and they tables, instead went took ager; they be On leave, insisting refused to served. they police called, of the owner were but orders manager a warrant would be nec- advised the The they petitioners. could arrest essary before and swore manager police went to the then station in the warrants. had remained out the Petitioners half, testifying all an restaurant hour and knowing they would they stayed trial that had their of their being part arrested was be arrested —-that “technique” these demonstrations. adopting policy: Hooper his Mr. testified this as to his reasons for people him and reasoned

“I set at the table with and two other why my yet integration policy him one of and and talked to not employees and of them were told him that I had two hundred half employees. thought did I I as much of them as I the white colored. they’d my go talk invited them back in kitchen if like to back and my my per- prove policy, I wanted to to them it wasn’t to them. employees prejudice, not, that I had valuable colored sonal we were thought just with these I as much of them. I tried to reason and deciding my who leaders, long as customers were told them that as try- my they mercy I’m with, I’m at the customers. wanted eat they they in, people are ing If fail to come these to do what want. go my my They paying expenses, and bills. didn’t want employees every my of them and talk to colored because one back sympathy sympathy with what with me and that we’re in are they objectives trying are, with what are to abolish . . . .” their Maryland Appeals affirmed convic- Court urged in both tions, rejecting petitioners’ contentions Maryland (1) equal pro- them courts that had denied process tection and due under the Fourteenth Amend- trespass its statute to enforce the by applying ment of racial dis- policy practice restaurant owner’s (2) expression freedom of crimination-, denied them guaranteed by by punishing them Constitution remaining they doing restaurant, at the were protest against refusing practice the owner’s service to Columbia, ante, Negroes.3 City This Barr case, v. Columbia, p. City Bouie post, p. all raised these same constitutional questions, two granted we certiorari to decide.4 The Solicitor General argument filed in participated has amicus briefs and oral in in all joins asking these while he reversal of cases; convictions, arguments vary significant his in respects from petitioners. reject those of the We would the con- petitioners and of tentions the Solicitor General in case and affirm the judgment Maryland this court.

I. day petitioners On the same that petition filed the certiorari case, this Baltimore enacted an ordinance forbidding privately owned restaurants to refuse to serve Negroes Nearly because of their color.5 a year later Maryland, repealing without trespass peti- state law tioners violated, passed applicable law to Baltimore and making some other localities such discrimination res- 302, (1962). 227 Md. 2d 771 176 A. (1963). jurisdiction 4 374 U. S. Probable was noted in Florida, (1963), rev’d, ante, p. Robinson v. 374 U. S. 803 153. Cer already Maryland, granted tiorari had been 370 U. S. 935 Griffin rev’d, ante, p. 130. (1962), 8, 1962, adding 14A, Ordinance No. June 10A to Art. § City (1950 ed.). Baltimore Code general that agree We taurant owners unlawful.6 as Maryland elsewhere, practice or judicial rule is that a new statute opinion, in the Court’s pointed out of a absence will, an old criminal law repealing barring interpreted be special saving clause, general Although Mary- the old law. prosecutions under pending clearly declar- general saving had a clause long land has subsequently re- brought under ing prosecutions advances barred, the Court pealed statute shall not Appeals why Maryland Court many arguments hold that the says, so the Court perhaps would, could and prosecu- bar these and statute nevertheless new ordinance might Maryland court premise tions. theOn passing thereby we could avoid way hold this because constitutionality trespass laws, of the State’s upon the ques- deciding crucial constitutional without Court, the case brought here, case instead sends tions which this of the new court to consider the effect back to the state statute. ordinance and with or without power, has agree

We Court to remand the case questions, constitutional deciding the Appeals to decide the state Maryland for the Court convictions should be set aside as to whether the question laws. abated because new prosecutions and the ques- Court our recognize, But as the cited the cases action of power one of take this but whether tion is not Maryland court would be equally we should. And the give rights they of petitioners any free the benefit we growing upheld out of the new law whether have affirmed, pass upon or refused to its trespass statute For of course our affirmance of validity this time. holding Maryland trespass the state court’s that 6 29, (enacted 1963, 227, 11 March Md. Acts c. Art. 49B Md. Code § 1963). law, 1963, A of state 1, effective June later accommodations 1, enacted, 1964, Sp. Sess., 29, but coverage, Md. Acts c. wide was § approved by will not take effect unless referendum.

322 applied way is constitutional would in no

statute hamper questions or bar decision of further state Maryland might protect deem court relevant rights of in accord petitioners Maryland with law. Recognition power of this of state after affirm courts we holdings questions commonplace their on federal is a See, g., Caldentey, Piza 231 occurrence. e. Hermanos v. (1914); Fidelity U. 692 Deposit S. Ins. & Trust Safe McClain, Co. (1900). v. S. 114 U. agree

Nor do we question because of the new state judgment deciding we should vacate the in order to avoid constitutionality of trespass applied. statute as fully recognize We salutary general judicial practice of unnecessarily reaching out decide constitutional questions. But this is neither constitutional nor a statutory requirement. principle Nor does properly understood and applied impose a arbitrary, and inex- rigid, orable command that courts should never decide consti- tutional question in any single if ingenuity case subtle any think up can technique conceivаble if might, utilized, offer a possibility distant of avoiding decision. Here we the constitutionality believe trespass this statute should be decided.

This case involving is but one five kind of same sit-in trespass problems we large out of a selected growing group pending cases very ques- to decide this tion. today granted We have certiorari in two more group cases.7 We know many similar cases are now way on the many and that others are bound to follow. We City Hamm Hill, 988; Lupper Arkansas, v. Rock 377 U. S. v. question presented U. S. 989. The same but is not decided in seven other today cases which disposes the Court of in various ways. Maryland, post, p. 547; See Drews v. Williams North v. Caro lina, post, p. 548; Fox Carolina, post, p. 587; v. North Mitchell v. City Charleston, post, p. 551; Tennessee, Ford 994; v. S.U. Virginia, post, Green p. 550; v. Virginia, post, Harris p. all that others, feelings as do the conditions and know, brought on these demonstrations still and that that exist private property owners on the one hand and on largely depend demonstrators the other at this time trespass constitutionally on whether state laws can be applied under these circumstances. question Since this pointed presented as we have is, out, squarely very case and is involved in other pending cases here and come, others bound to we think wholly it is unfair to property demonstrators and owners alike as well as against interest not to now. decide it Since Madison, Marbury v. 1 Cranch 137 (1803), it has been this recognized Court's responsibility duty to decide con- stitutional questions properly necessarily before it. That case others have duty judges stressed the act with the greatest caution before frustrating legislation by striking it down as unconstitutional. should We feel question constrained to decide this if thought even we the state law invalid. In this case, however, we believe that state law is a valid legislative exercise of state power, question is properly before us, and that the national interest imperatively for an authorita- calls tive question by decision this Court. Under these circumstances think we it would an unjustified duty abdication of our question leave the undiscussed. This willing we are not do. proceed So we to state our views on the merits of challenges the constitutional Maryland to the law.

II. Although question was neither nor raised decided petitioners the courts below, contend Mary- land vagueness statute is void for under the Due Process Clause of the Fourteenth Amendment because its lan- guage gave no fair warning staged that “sit-ins” over a protest restaurant owner’s prohibited were by the statute. it challenged statutory language makes an offense for prem- or any person upon land, to “enter cross over the any person persons or or this private property ises having duly by the owner or State after been notified agent say to do . . . .” Petitioners that his so language entry upon means that an another’s plainly property only is an offense if the has been owner’s notice given physically property; before the intruder on the petitioners they that the notice to that were not wanted given only they stepped after had from the street into restaurant; and that applied the statute them (1) was void either because there was no evidence support charge of entry notice not to do so, after or (2) because the statute failed to warn it could that be violated by remaining property on having after been told to leave. As (1), view of the evidence and petitioners’ statements the trial it is hard to take seriously a contention petitioners that fully were not aware, they before ever entered the restaurant, that was the firmly restaurant owner’s policy established practice not to Negroes. serve The whole purpose of the “sit-in” protest was to policy. (2) Be that as it may, Appeals Court of Maryland held that “the statu- tory references to ‘entry upon crossing over,’ cover case of remaining upon land after leave,” notice to the trial court very with found, strong evidentiary sup- port, that after unequivocal petitioners notice to they would not be seated or they “persisted served in their demands and, brushing by hostess, took seats at var- ious tables on the main floor and at counter basement.” areWe say unable to that holding this con- duct barred the Maryland an statute was unreasonable interpretation of the statute or one which could have deceived or even surprised petitioners or others who certainly obey it. It would wanted understand very stretching against ambiguous the rule statutes language far misled statutory indeed to hold that petitioners as in the face of meaning, these to the Act’s showing prior series of demonstrations evidence and in view of including petitioners, some Negroes, came group petitioners which included fact prepared actually courted picket Hooper arrest, protest people. the better to his refusal to colored serve reject the contention that the statute construed We vagueness. doing, is void for we do not overlook so, disregard or expressed the view other cases that stat utes in regulating conduct, may indirectly touch which, expression the areas of freedom of should construed narrowly necessary where protect that freedom.8 And we do not that purpose doubt “sit-ins” was one these express vigorous protest against Hooper’s policy of serving Negroes.9 wholly But it is clear that Maryland against peti statute here is directed not what against tioners said but they remaining what on the did— - premises of having another after leave, been warned to conduct which traditionally States have prohibited this country.10 prior And none of our has held that a cases person’s right expression to freedom of carries with it private to force a property owner to furnish his property as a platform property to criticize owner’s property. Giboney Storage use Cf. v. Empire & Co., (1949). Ice 336 U. S. 490 We believe the stat applied vagueness. ute as construed and is not void for 8 York, 507, (1948); Winters v. New 333 U. S. 512 Cantwell v. Connecticut, 296, (1940). 310 U. S. 307-308 9 Louisiana, 157, (1961) (Harlan, See Garner J., 368 U. S. 185 v. concurring). 10 City Struthers, See Martin v. 319 S. 147 n. U. (1943).

III. provides Amendment 1 of the Fourteenth Section part: any deprive person life, shall .

“No State . . law; nor process due or without liberty, property, equal deny any person jurisdiction within its protection the laws.” Amendment, sections,11 This section of the unlike other prohibition against only is a conduct done certain when by a action” as it come to State —“state has be known— against merely private and “erects no shield con discriminatory wrongful.” Shelley duct, however Kraemer, (1948).12 S. This U. well-established interpretation 1 of the Amendment —which all section parties including petitioners here, Solic itor accept General, section of the —means standing Amendment itself, does not of alone, absence of cooperative some action compuls state or ion,13 property including forbid holders, own restaurant to ban from ers, entering or people remaining upon their even if premises, the owners out of act racial prej udice. prohibitions But “the the amendment extend to all action of the denying protection State equal laws” “by whether legislative, its its executive, its judicial Rives, authorities.” Virginia v. 100 U. S. (1880). 318 The Amendment thus forbids all kinds of action, agencies state all state and officers, that dis g., 11 E. Congress “The power have by appro shall to enforce, §5: priate provisions legislation, the of this article.” 12 Citing Rights Cases, Civil (1883); 109 U. S. 3 United States v. Harris, (1883); 106 U. S. 629 Cruikshank, United States v. 92 U. S. (1876). 542 13See Wilmington Parking Burton Authority, v. 365 S. 715 U. (1961). their race.14 against persons criminate on account invalid in that was held kind of state action It this (1954), Peter Education, 347 U. Brown v. Board S. (1963), Lombard City Greenville, son 373 U. S. v. County v. Louisiana, and (1963), S. 267 U. Griffin Board, this Court (1964), and that School 377 U. S. 218 ante, Florida, p. today invalid Robinson v. holds contend that Solicitor General, but Petitioners, for under state statute was trespass their conviction discriminatory state action forbidden itself the kind contention, on its by the Fourteenth This Amendment. general along has with face, plausibility when considered for- under Amendment statements to the effect Judicial well may bidden action” be that of the “state Legislative as of or Executive Branch Govern- application But a mechanical of the Fourteenth ment. analysis. The Amendment to case cannot survive prosecute does not forbid a Amendment State against person crimes committed or his how- property, be. may or narrow victim’s prejudiced ever .views victim a prejudice bigotry can Nor whatever automatically to the may crime have be attributed State prosecutes. only Such a doctrine would not severely also fiction; handicap based on a it would orderly peaceful society. maintain a State’s efforts to system its in a of criminal laws society put Our has trust To feuds and punish personal lawless conduct. avert people expect brawls it has led its to believe violent will be in the courts. wrongs against them vindicated take the law into their own attempting Instead of hands, taught police protec- been call for people have It possible.15 their wherever would protect tion to Shelley par Kraemer, supra, (1948), 14-15 S., See v. 334 U. at ticularly 13 and 14.

329 agreements prohibited constituted enforcement by were made though agreements action even state if the Amend- they alone, act persons whom, to private (1) urged: were grounds two chief apply, does ment aliena- a restraint on of constituted type agreement This valid, if in perpetuity, which, property, of sometimes tion of state of and had the effect reality in equivalent kind accomplishing the same municipal zoning laws, and a passed if had statute racial discrimination as State by accomplished leaving objective this to instead by enforced the State. system private contracts, Terry Alabama, (1946); 326 v. Marsh S. 501 See v. U. Wo Adams, Hopkins, Yick (1953); 345 461 cf. v. U. S. Nashville, St. L. v. (1886); & Co. 118 S. 356 C. U. R. (2) Nearly all the Browning, (1940).16 362 310 U. S. restric- Shelley which asked invalidation briefs judicial and reiterated tive covenants iterated system was forbidden of this of covenants enforcement to right a citizen own, use, state action because right is a dispose property federal occupy, enjoy, by Rights 1870, Acts of 1866 and protected the Civil to validly passed congressional power authorized pursuant This by of the Fourteenth section 5 Amendment.17 16 says: subject in his brief “The On the Solicitor General zoning binding ordinance series of becomes effect a local covenants subject without consent. those in the to the restriction their area Warley, 245 has dele Cf. Buchanan v. U. S. 60. Where State authority, private power law-making gated persons so similar to subject may fairly be held constitutional restrictions.” its exercise 17 1982, deriving 27, (1866), pro 1 S. U. from Stat. C. § § right, in “All shall have the same vides : citizens of United States every Territory, enjoyed as is white citizens thereof to State and convey personal prop inherit, lease, sell, hold, real and purchase, 144, erty.” 1981, deriving (1870), 42 U. from 16 Stat. S. C. § § provides: jurisdiction "All persons within the States United . have the ... make and enforce contracts . . shall same enjoyed by constitutionality white citizens . . . .” The of these as is Virginia Rives, recognized 100 U. S. statutes was 317-318 Warley, (1917). (1880), in Buchanan v. 245 U. S. 79-80 argument many was buttressed citation of cases, some of which referred in this opinion are Court’s Warley, Buchanan (1917). v. 246 U. S. 60 In that ease acting this Court, under the Fourteenth Amendment Rights the Civil Acts 1866 struck down a 1870, city property which on ordinance zoned the basis of race, stating, S., right 245 at “The U. which the ordinance right annulled was the civil of a man dispose white to property his if he saw fit to a person do so to of color and of a person colored to disposition make such to a person.” white v. Warley Buchanan heavily was relied on Shelley this Court Kraemer, v. supra, where this statement from Buchanan quoted: “The Four- teenth Amendment and these statutes 1866 and [of enacted purpose furtherance of its operate 1870] to qualify and a entitle colored man acquire property without legislation state discriminating against him solely because of color.” 334 S.,U. 11-12. at And the Court in Shelley went on to approval cite with two later deci- sions of this Court relying which, on Warley, Buchanan v. had invalidated city other ordinances.18

It seems pretty clear that judicial reason enforce- ment of the covenants in Shelley restrictive was deemed state action was merely the fact that a state court had acted, but rather that it had deny acted “to peti- grounds on the tioners, or race color, enjoyment of property rights in premises which petitioners willing are and financially able to acquire and which grantors are willing to sell.” 334 U. at S., 19. In other words, held Court that state enforcement of the covenants had the of denying effect parties to the federally their guaranteed right to own, occupy, enjoy, and use their property regard without to race or color. Thus, the line of cases from Buchanan through Shelley establishes these Richmond, Harmon Tyler, v. (1927); S.U. Deans, v. (1930). 281 U. S. 704 willing is property an owner of proрositions: (1) When willing purchaser buy, then to sell and a would-be all persons Rights gives Act Civil con sell, hold, and “inherit, purchase, lease, same through a its vey” property, prohibits State, whether preventing legislature, executive, judiciary, from on of one of grounds sale of the race or color Kraemer, parties. at Shelley supra, S., 334 U. (2) has person property owner, Once become then he all acquires go ownership: with “the free use, enjoyment, disposal person’s acquisitions of a without control or diminution save the law of the Warley, land.” supra, S., Buchanan v. 245 U. 74. This means- property that the owner may, in absence of a forbidding valid it, statute sell his to property whom he pleases that property and admit to he will; long whom so as both parties willing parties, principles are then the stated Shelley protect right. Buchanan and But equally, party when one is unwilling, as when the prop erty owner not to chooses sell to a particular person or not to admit that person, then, as this Court emphasized Buchanan, he is entitled to rely guarantee on the of due process is, “law law, that of the to land,” protect his free use and enjoyment property know only and to that valid legislation, passed pursuant to some constitutional grant of power, anyone can disturb this free use. But petitioners would here have us that, despite hold absence of any valid restricting statute the use of his of Hooper’s the owner property, restaurant in Baltimore must not be guaranteed accorded the federally same right to occupy, enjoy, use property given parties to the Shelley; Buchanan and petitioners instead, would have say us Hooper’s federal down must cut he must be compelled though no statute said he must— —

to allow force people to their way into his restaurant and protest. remain his there over cannot We subscribe to interpretation of federal mutilating, one-sided such treatment equal heart of which is guarantees very Four- forget to all. must never under law We liberty, property” or protects “life, teenth Amendment some people’s “life,” all not people generally, just some “property.” people’s kinds “liberty,” some concluding enforcement judicial that mere impute Maryland trespass law is not sufficient in accord with Hooper’s Negroes, refusal to serve we are He Solicitor General’s views as we understand them. granted takes for through

“that fact of intervention the mere State public authority pro- courts or other in order for a private enough sanctions decision is not vide implicate for purposes the State Four- teenth Amendment. only . . . Where the State involvement support every prop- is color-blind erty-owner’s exercise of normal right to choose his guests, proof business visitors social particular property-owner racial motivated or religious prejudice enough to convict the of denying equal protection State laws.” The Solicitor General says: also

“The preservation of a and pluralistic society free seem to require would pri- substantial freedom for vate social, choice in business and professional asso- ciations. Freedom of liberty choice means the to be wrong as well as to right, be mean as well noble, as to be vicious well as kind. And even if that view were questioned, philosophy of federalism leaves an area for choice to the States and people, their when the State is not otherwise involved, instead of vesting only power of effective decision in the federal courts.”

333 that General, argument We, reject like the Solicitor to choose cus- protection Hooper’s desire State’s trespassers by prosecuting tomers on the basis of race of his enough, standing alone, deprive Hooper is to way. But we dis- operate property to his own agree circum- with the contention there are other for tres- prosecution stances added to which, the State’s finding a action. There is no pass, justify state official Maryland law, municipal ordinance, no and no proclamation any or action of kind that shows the slightest encouragement Hooper state coercion or of, to, Negroes to bar from his restaurant.19 Neithеr the State, any agencies publicly nor of their city, has leased to State property Hooper.20 owned is true It city regulate by compelling not restaurants —but deny to service of their restaurants to customers because no licensing race. License are but has collected, fees relationship to race. to hold Under such circumstances, that a participated preju- State must be held to have big dicial of its for us jump conduct licensees too take. do be- by private persons Businesses owned agencies they licensed; come because are State they hold all our completely negate do would be private ownership concepts practices. parties

Neither the nor General, the Solicitor least with respect Maryland, pres has been able to find the any any ent existence of state law or local state ordinance, or any court administrative other official state ruling, possibly any conduct could have had coercive influence on Hooper’s practices. despite racial Yet complete any absence of of proof respectable sort or even 19Compare Florida, ante, p. 153; v. City Robinson Peterson v. (1963); Greenville, U. S. Lombard v. 373 U. S. Louisiana, (1963). 20Compare Wilmington Burton 365 U. S. Parking Authority, (1961). in any way instigated

speculation Maryland argued to is encouraged Hooper's Negroes, refusal serve it classified as length Hooper’s practice should be long rests on a narrative “state action.” This contention War, events, of historical both before since the Civil in South, and indeed in the whole Maryland, to show that pattern of a part state and state actions have been laws segregation business, social, in conduct of of racial of pattern segrega other activities. This religious, hardly prove tion needs historical it. The references argument trespass is made should that the conviction Mary action” labeled “state because the “momentum” legislation” in “past land's is still substantial the realm accommodations. To that the Solicitor extent, argues, “a has may General State which drawn a color line suddenly color assert that it is blind.” We cannot argument an ex accept post such applica to hold the facto Maryland’s trespass tion here of law unconstitutional. Nor appreciate can we fairness or justice holding present generation Marylanders responsible for what their days ancestors did other if 21(cid:127) —even we had own substitute our ideas of what the Four ought teenth Amendment be for what was written and adopted to achieve.

There another objection is to accepting argument. this If it accepted, were we would have one Fourteenth for the quite Amendment South and different more lenient one the other parts country. Present “state action” this area of constitutional would pointed In fact, as I Maryland out in Part opinion, has recently passed prohibiting a law racial discrimination restaurants parts Baltimore and some State, other and Baltimore has Maryland enacted a similar ordinance. Still another antidiscrimina tion law, application, subject of statewide has been but enacted 6, swpra. referendum. See note history by present in the governed by past be South — was Constitution in and West. Our conduct the North we will not do it. way, written to be read not IV. argues in Goldberg opinion Brother his

Our force and without of its own Amendment, Fourteenth prohibits privately legislation, congressional need color discriminating on account of from restaurants owned something (1) like this: Con- His runs argument or race. common “Anglo-American” law, gress understood the prohibit to owners States, in it existed the several then from open and other establishments inns (2) in discriminating race; passing on account legisla- civil Rights rights Act 1866 and Civil other Congress meant access to such establishments tion, who among rights” protected; (3) the “civil those finally, passed intended framed Fourteenth Amendment equal of all force, persons of its own races to assure it, owned and other accommoda- privately access to inns opinion In us making tions. this refers argument, supreme congressional cases and to to three state court on civil bills. post-Civil debates various War furnish only very does the material cited Howevеr, support and often the first two scant, contradictory, (about the common law Recon- propositions and the statutes), more but, important, struction era even absolutely proposi- material furnishes none for third tion, which is the issue this case. the first there considerable doubt place, was law

argument concerning what common in the 1860’s required innkeepers even of carriers and and still more concerning required what of owners other establish- pro- ments. For on a Senate debates example, charter of posal railway company amend the the street excluding prohibit in the District of Columbia to it from color—a any from its cars on account of debate person Goldberg's opinion Senator cited in MR. Justice —one remedy any thought give common law would that the argued Negro car,22 from a while another excluded street universally “it conceded that railroad companies, coach had the to make lines, steamboat proprietors, Negroes separate this regulation” requiring to ride cars.23 Sumner of one of the Massachusetts, Senator proponents legislation chief admitted that type, there “doubt” to railway’s was both as what the street existing charter as to common law required and the what required; therefore he the proposed that, since common had “fallen into disputable,” disuse” “become Con- law. gress rights persons act: of should the colored “[L]et 24 placed of protection positive under the . . . .” statute is

Second, not at all clear that in the statutes re- lied Rights on—the Civil Act of Sup- 1866 and the plementary Congress Freedmen’s Bureau meant for Act— guarantee those statutes to Negroes to access estab- 22Cong. Globe, Sess., (1864) (Senator 38th 1st Cong., 1159 Morrill). 23Id., (Senator Saulsbury). at 1157-1158 24Id., response question put at 1158. In by to a Senator Carlile Virginia, of Sumner stated it had that taken a statute to assure Negroes equal treatment in Massachusetts: question, “That Massachusetts, whole after much discussion in has legislation, by been every person settled of the colored are placed equality persons. They on an with of white those have the right persons same every public conveyance with white ride in to by positive in the It legislation twenty- Commonwealth. was done years ago.” (Emphasis supplied.) one Ibid. later,

A Kentucky few minutes Senator Davis of asked Sumner directly if it was not true that what treatment extended people “public incorporated by colored hotels” the Commonwealth judgment of Massachusetts was left to “the and discretion of the proprietors managers Sumner, of the hotels.” who had answered immediately preceding Davis, statements one left this unchal- lenged. Id., at 1161. For open general public.25 to the

lishments otherwise Rights bill of in the debates on the Civil House example, privately speakers not mentioned cited, one the bill,27 of the the text owned accommodations.26 Neither quoted having made rela A of the as been number remarks privately fact Negroes’ tion to owned accommodations in access questions altogether. example, Trum For Senator dealt with other ante, p. having Negro quoted, that the bull of said Illinois implied go pleases.” where such should “to he It is that have question privately light on of access to owned accom remarks cast statement, fact, of a debate on made in course modations. Bureau, (S. 60) powers enlarge the Freedmen’s related a bill solely Black Laws had been enacted some Southern “prevented the codes” which States. Trumbull attacked “slave home,” Congress nullify going urged all colored from and he man pleases.” he permit go man “to where laws which would colored (1866). Similarly, in Cong. Sess., another Globe, Cong., 39th 1st (S. 9) protection freedmen, debate, Senator Wilson on a bill just such laws as that had told the Senate about Massachusetts any quit job Mississippi provided freedman who his should, during employment his good cause” “without term upon employer, back to the affidavit of be arrested carried slavery, employer. Speaking relics Wilson said that freed of such they play please, when am, free as to work when to men were “as I they go they please Id., 41. please, . . . .” at Senator to where enough joined debate, wondering far if 9 went Trumbull then the S. any pre prevent еnslaving, “from under saying and that to States tense,” freedmen, might his to ensure the he introduce own bill the they please.” Id., “go and when of freedmen come remotely anything to do with It was to the Black Laws—and not Wilson, Trumbull, their and others addressed accommodations —that ex Moreover, the on S. Trumbull statements. in debate Senator pressly as the constitutional to the Thirteenth Amendment referred showing ibid., pending bill, his basis for the bill and for own both restricting move was with state laws that the Senate’s concern people. of, re-enslaving, ment in colored and effect 26 (Trumbull Globe, (1866) Cong. Cong., Sess., 39th 1st 47-L476 Iowa), (Trumbull), (Wilson Illinois), (Trumbull), of of 599 606 1117 (Thornton (Thayer Pennsylvania), (Thayer), of 1154 1157 (Windom Minnesota). Minnesota), id., See at 211-212.

nor, example, by leading supporter enumeration bill rights” of what “civil the bill would protect,28 even mentioned inns or other such facilities. we Hence pointed are nothing in legislative history gives rise to an inference that proponents Rights Civil Act of 1866 right” meant to include as a “civil a right to demand at a privately service owned restaurant or other privately owned if And, establishment. the 1866 impose Act did a statutory duty on innkeepers others, strange then it is indeed that Senator Sumner in 1872 thought an of Congress that Act necessary require hotels, carriers, theatres, and other places to all receive races,29 strange Congress even more that obliged felt pass 1875 to Rights year Civil Act of explicitly that prohibiting discrimination inns, conveyances, theatres, places other amusement.30

Finally, and controlling here, there is nothing what- ever the material cited to support proposition the Fourteenth Amendment, congressional without legislation, prohibits owners of restaurants and other places Negroes. to refuse service to We are cited, only in passing, general statements made the House Representatives to the effect the Fourteenth Amendment was to incorporate meant the “principles” Rights the Civil Act of 1866.31 Whether “principles” thing are the same “provisions,” we are not told. But we have noted the serious doubt that the Rights Civil Act of 1866 even dealt with access to privately owned facil- revealing ities. And one of passages cited from the debates on the Fourteenth did Amendment any speaker suggest that was designed, Amendment 28 Id., (Thayer). at 1151

29Cong. Globe, Cong., 42d Sess., (1872). 2d 381-383 30 18 Stat. 335. 31Cong. Globe, Cong., 39th Sess., 1st 2459, 2462, 2465, 2467, 2538 (1866).

339 at inns and treatment equal all races itself, to assure owned establishments. privately other mentioned passing just from the one reference Apart Amendment, debates on the Fourteenth above to the no relevance what- which we shown had reference have every one of should serve, to whom restaurants ever legisla- proposed with entirely cited deals passages It with the Amendment.32 should obvious tion —not with proposed connection may that what have been altogether irrelevant or another is passage of one statute Amendment of what the Fourteenth does question to the interesting note that legislation. in the It is absence years passage of the Fourteenth 1872, some after the indefatigable an Sumner, always Senator Amendment, proponent proposed of statutes of this a debate kind, give regardless all citizens, which we áre cited bill to color, equal enjoyment hotels, theatres, carriers, places. that, certain other He submitted as to hotels (but places of amusement), carriers to theatres it is “simply law;33 the bill the common reenforce[d]” 32Cong. Cong., Sess., (1864) (debate on.,bM Globe, 38th 1st 839 mail); repeal prohibiting persons carrying law colored from Cong. Globe, (1864) (debate Cong., Sess., 38th 1st 1156-1157 on amending Metropolitan Co.); Cong. Railroad charter of (debate Globe, 322, 541, 916, (1866) Cong., Sess., 1st 936 on bill 39th 60); Cong. Globe, Act, Bureau 39th to amend the Freedmen’s S. Cong., Sess., 474-476, 599, 606, 1117-1118, 1151, 1154, 1157, 1159, 1st (1866) (debate Rights 61); Cong. on the Civil Act of S. (1866) (debate Globe, Cong., Sess., 1st on bill for the 39th protection Codes, 9); Cong. Globe, of freedmen from Black S. 42d (1872) (debate Cong., Sess., 2d on Sumner’s amendment 381-383 removing political ex-Confederates, H. bill and civil disabilities on R. (debate Cong. (1874) give 380); 2 4081-4082 on bill to all citi Rec. 1). Cong. equal enjoyment inns, etc., passage, zens S. One cited Globe, Cong., Sess., (1866), 39th 1st consists of remarks made proposed having debate on a constitutional amendment to do with apportionment representation, H. R. 51. 33Cong. Sess., (1872). Globe, Cong., 42d 2d 340 argue that the bill would en-

significant that he did not by Amend- right already protected force a the Fourteenth stronger had it been available ment itself-—the argument, all give on a bill to Similarly, to him. an 1874 debate pub- citizens, regardless equal enjoyment inns, of color, theatres, places public amusement, lic conveyances, schools, (a cited), common and cemeteries debate also argued gave Senator Pratt the bill the same as the common law would rem- but be more effective edy.34 significant Sumner in the Again, that, is like debates, suggested precedent Pratt for bill only required equal his belief the common law intimated that treatment; he never the Fourteenth laid down such a requirement. Amendment entirely We have confined ourselves to those debates Goldberg’s cited in opinion Brother the better to show opinion’s argument even on its own how, evidence, prohibits that the Fourteenth Amendment without more discrimination places restaurants other such rests wholly inadequate on historical foundation. When argument read and analyzed, entirely shown to rest speakers on what said are to have believed bills statutes of the time were meant to do. proof Such fails entirely question when the what is, did, statutes but rather what the Constitution does. Nor are the three any state cases35 on relied better all evidence, three 34 Cong. (1874). Rec. 4081 State, Donnell (1873); Coger v. 48 Miss. 661 v. North West. Co., (1873); Ferguson Packet Gies, 37 Iowa 145 82 Mich. (1890). Mississippi 46 N. W. 718 case does contain this observa pertinent duty tion deciding to a court’s to confine itself to cases and interpreting constitutions and legislating statutes and to leave legislatures: magnitude

“Events hereafter, of such vast and influence now and gone history years, have into within the last ten that the mind yet quite prepared is not calmly dispassion- consider them ately. judiciary, ought To the calm, at all times to be delib- statutes; pur- dealt with state antidiscrimination not one ported interpret And, Fourteenth Amendment.36 if speak we are to of cases decided at that we should time, composed Court, recall that this of Justices appointed Presidents Lincoln, Grant, Hayes, Garfield, and Arthur, in a interpretations beginning held series constitutional Slaughter-House Cases, with the (1873), 16 Wall. 36 that the Amendment of itself was only directed at state action that displace and it did not power the state and fed- legislative eral regulate bodies to privately the affairs of owned businesses.37

We are deciding admonished that in this case we should remember that “it is a constitution we are ex- firm, especially erate and public thought so when the and sentiment beyond are at tone, all excited high normal is committed the trust declaring propriety prescribed what are the rules of conduct and supreme authority, and what are the under individuals policy legislation, judiciary them. As to the nothing have to wisely do. That is law-making department left with the government.” Miss., 48 at 675. 36 Attorney Mississippi quoted The having argued General of is as in State, Donnell (1873), Mississippi Legislature 48 Miss. 661 that the “sought, by any had act, to interfer [antidiscrimination] render by congress unnecessary.” Ante, p. 307, very ence n. 25. This state Mississippi Attorney ment shows thought that the General today, we believe that the Fourteenth Amendment did not of itself guarantee privately legis to access owned facilities and that it took lation, Mississippi, guarantee such as that of to such access. 37 Goldberg’s opinion Illinois, Brother in this ease relies on Munn v. (1877), 94 U. S. 113 wMch discussed the common-law rule that private property public “when use, subject is devoted to a it is to public regulation.” Id., related, This statement in Munn course, legislature constitutionally regu to the extent to which a can private property. late remotely Munn therefore is not here, relevant problem for in this legislatures case the is, do, not what can but rather what Constitution itself does. And in fact this Court years ago rejected some depend upon the notion that a State must some rationalization such as “affected with a interest” in order legislatures regulate private for to businesses. See Nebbia v. New York, (1934). 291 U. S. 502

342 as we we remem- conclude do because

pounding.” We duty our it is a it is “to ber that Constitution 39 And provisions.” respectful submission to its bow with to recalling it is a “intended endure Constitution ages come,” we also remember the Founders changes for that wisely provided the means endurance: thought pro- are to necessary, when Constitution, Congress or posed by conventions ratified gave amending power no States. Founders such parte Virginia, this Court. Cf. Ex S. 345-346 U. (1880). interpret Our duty simply the Constitu- so tion, doing constitutionality the test of is not a law is our “good whether offensive to conscience or to the old common but it is law,” whether to the offensive Confining Constitution. our ourselves to constitutional duty to rewrite construe, amend, the Constitu- tion, we 1 believe that Section of the Fourteenth Amend- ment bar Maryland does not from its enforcing trespass long laws so as it does so with impartiality.

This carrying Court has done much in out its solemn duty protect people to from unlawful discrimination. And it of course, will, carry continue to duty out this in the future as past.42 it has in the But the Fourteenth

38McCulloch v. Maryland, 316, (1819). 4 Wheat. 407 (Emphasis original.) in 39 Virginia, Cohens v. 6 (1821). Wheat. 377 40 Maryland, McCulloch v. (1819). 4 415 Wheat. English That the thought common altogether law was not “good” country in this is suggested by complaints of the of Declaration Independence, Virginia Kentucky Resolutions, observations of Thomas Jefferson. Cyclopedia The Jeffersonian (Foley 1900). ed. 42It holding justice” said that our “does not do a to Constitu tion which is color blind and to this Court’s in decision Brown v. Board Education, (1954). Ante, 347 U. pp. S. 483 287-288. We agree, course, that the Fourteenth Amendment blind,” is “color the sense that it outlaws all laws merely state which discriminate on .man a black compel either of itself does not Amendment trade to private his own business running or a man white not believe will. do anyone against with else his We or was written Amendment the Fourteenth Section right to choose storekeeper’s designed to interfere with choose owner’s property or with a his customers run he does not associates, long so his social or business case regulation. or counter to valid state43 federal Congress power us does not involve the before businesses compelling privately a law owned pass and to of race on the basis refrain from discrimination no any. express all if trade with We they trade with acting under one Congress, power views as to the racial prevent Constitution, provision another busi- privately owned operation discrimination legislation form of to that any particular nesses, upon nor 1 of the Four- is that Section sole conclusion end. Our prohibit standing does not alone, Amendment, teenth own choosing from their privately owned restaurants very re- destroy what has until customers. It does not country as the universally recognized cently been run a man who owns business to unchallenged right of regu- valid way long own so as some the business his him to do otherwise.44 latory does tell statute upon the Court struck the basis account of color. This was Board segregation- requiring in Brown down state laws school in Brown Education, supra. possible intimation But there was no any past would construe or in of our decisions that this Court other requiring to serve restaurant owners the Fourteenth Amendment as should any that the Court all Nor has there been intimation races. expand of a belief or would the Fourteenth Amendment because judgment go enough. far does not in our Air v. Continental Colorado Anti-Discrimination Comm’n Cf. Lines, Inc., (1963). S. 714 U. Goldberg argument opinion our Brother characterizes our Negroes access being “permits” to be denied that the Constitution statement on account of theiT color. fear that this restaurants We

y. not the Solicitor contend that Petitioners, General, but right for trespass deny their convictions them the expression guaranteed by the Constitution. freedom They argue their

“expression (asking service) entirely appro for priate place to the time and at which it occurred. They did not or shout obstruct the conduct busi picket ness. There were no hand speeches, signs, or expression bills other forms of store pos sibly inappropriate to the time and place. Rather they purchase place offered food and at a time set aside for such protest transactions. Their dem onstration part was a of the Tree trade in ideas’ (Abrams States, v. United 616, 630, Holmes, 250 U. S. J., dissenting) . . . .” argument

Their comes down to peti- since this: did Hooper’s tioners obstruct (which business shout, the record refutes), display make speeches, picket or signs, handbills, they other means of communication, perfect had a right constitutional to assemble and remain in over restaurant, continuing the owner’s objections, purpose of expressing by language themselves “demonstrations” bespeaking their hostility Hooper’s refusal to Negroes. prior serve This Court’s cases do not support such a privilege growing constitutional out speеch and assembly. Unquestionably peti- might Precisely mislead some put, position readers. our is that prohibit Constitution of itself does not discrimination those who goods sell and services. There is of course a crucial difference be- argument tween the we do make —that the Constitution itself —which prohibit private does not goods choosing sellers of or services from customers, argument their own and the we do not make —that —which affirmatively the Constitution creates a to discriminate which legislation neither impair. state nor federal could these views right express to a tioners had constitutional right be. Cf. legal to unquestioned had an they wherever rub this But there is the Alabama, supra. Marsh v. had a constitu- petitioners that contention case. The stay Hooper’s premises to on right tional to enter or had a they if would have there, will against because, his restau- their desire to have right express to constitutional argu- bootstrap is a Hooper’s protest, over rant service to right is a right expression freedom ment. The to people supply right a to force other to express views—not argued supposed platform pulpit. or a It is that right people’s property other constitutional to invade private his or club, would not mean man’s home, that forcibly against or used his his church could be entered him- place of business which he has only his store will— goods or “opened public” by selling to services self argument that assumes money. place, the first Hooper’s opened public. restaurant had to the been petitioners Hooper with quarrel But the whole being open instead of to the restaurant refused all, with Negroes. Furthermore, legislative service to bodies if power could of draw but this, course lines act like as is lines, argued, Constitution itself fixes its own legislative powerless change bodies are them, homeowners, private property and other churches, clubs, case-by-case owners would have to await determination by this before had a they Court knew who constitutional right trespass sup- on And if property. their even posed places constitutional is confined to where goods and services are offered for it must be realized sale, apply such a constitutional would to all busi- rule professions A nesses alike. statute can be drafted to create exceptions legislators wise, such as think but a constitutional applied rule could well small- to the est business as to largest, personal pro- the most fessional relationship impersonal business, as to the most in his family business on a man’s farm or

to conducted on home as to businesses carried elsewhere. great purpose speech press

A of freedom of is to provide disputes a forum for settlement of acrimonious intimidation, without or vio- peaceably, force, resort ages points experience lence. The the inexorable people fact that stirred frequently are to violence when property recognizes which the law as theirs forcibly is inyaded occupied by Trespass others. laws are born experience. They been, have doubtless still important any government features of are, dedicated, country as this to a is, power rule of law. Whatever may it allow grant Congress the States or to the regulate private the use of property, the Constitution upon does not any group confer substitute by rule force for rule law. Force leads to violence, violence to mob conflicts, and these to rule strongest groups with control of the deadly weapons. most Our Constitution, noble work of designed— wise men, all of it—to quite chart different course: to “establish Justice, Tranquility insure domestic . . . and secure the Blessings of Liberty to Posterity.” ourselves and our At times of law rule seems too slow to some for the grievances. of their settlement plan But our Nation has preserve chosen to both “Liberty” and equal- ity for all. plan On we put have our trust staked our future. This constitutional rule law has us served well. Maryland’s trespass law depart does not from it. Nor shall we.

We would affirm. notes infra. 30 comparison Bradley-Woods (and correspondence A of the 1871 opinion Judge wrote, infra) 31, later see note with Woods Bradley’s opinion Rights Justice 1883 in the Civil indicates Cases respects that in some the Justice modified views. Attaсhed to his Judge apparently note, draft of a letter to Woods was a written subsequently, by Bradley stating expressed Justice that: “The views foregoing by subsequent reflection, in the letters were much modified power Congress pass enforcing far as so relates to laws for equality wording note, social between the races.” The careful of this limiting power Congress pass laws,” supports itself to “the Bradley only abandoned, modified, conclusion that Justice had Rights his fundamental views and that the Civil Cases should be they read, written, explicit assumption were to rest on an as to the legal rights affirmatively protecting. which the States were pass protection.” fully laws These views are recognition consonant with this Court’s that state conduct might be described as “inaction” can nevertheless background correspondence subsequent The of this and the opinion Judge Hall, in United States ‍​​‌‌​​‌‌​​​‌‌​​​​‌‌‌‌‌‌‌‌​​​‌‌‌‌​​‌​​‌​​‌‌‌‌​​‌‌‍v. Woods 26 Fed. Cas. (Cas. 15,282), significant. correspondence No. are on the subject apparently began Judge in December 1870 when Woods Bradley concerning questions wrote Justice the constitutional raised by an indictment filed the United States under the Enforcement charged Act of 16 Stat. 140. The indictment that the defend unlawfully feloniously conspire together, ants “did band and injure, oppress, with intent to threaten and intimidate” certain citi “right speech” zens in their exercise of their of freedom of and in “their enjoyment right free exercise privilege peaceably prosecution assemble.” The was instituted in a federal court Ala against private bama way individuals whose conduct had no involved or been sanctioned state action. May corresponding Bradley, Judge after with Justice opinion upholding Woods delivered an the federal statute and the in- judge rights allegedly dictment. The declared infringed that the were protected Privileges under the and Immunities Clause of the Four- teenth Amendment: “We think . . . that of freedom of speech, and the eight other enumerated in the first articles oí amendment to the constitution of the States, priv- United are the

Notes

notes country criminal, trespass civil and laws, The use in this both processes for people of the law force and to allow to substitute the betray a plan tranquil orderly our whole and society say citizen, personal because of his prejudices, that habits, attitudes, beliefs, or outside pro- cast the law’s tection and cannot call for the aid of sworn to officers uphold the and preserve peace. law The worst citi- zen no equal protection less than the best is entitled to of the laws of his State and of his Nation. None of past reading our cases justifies the Fourteenth Amend- way ment in a might penalize well citizens who are law-abiding enough to call upon the law and its officers for protection using physical strength instead their own dangerous weapons preserve rights. their In contending that prosecution the State’s of peti- trespass tioners for is state action by forbidden Fourteenth petitioners Amendment, rely chiefly on Shel- ley Kraemer, supra. That reliance is misplaced. Shelley held the Fourteenth Amendment was vio- by lated a State’s enforcement of restrictive covenants providing pieces that certain of real estate should not be by used or occupied Negroes, Orientals, or any other non-Caucasians, either as owners or tenants, and that case or occupancy by use such proscribed classes, the of any person title using so or occupying it should di- vested. Many briefs were filed in case parties and amici curiae. support To holding that state origin violence has an England. ancient Land law was once up bound with the notion “seisin,” term connoting “peace and quiet.” 2 Pollock Maitland, History English The Law Before (2d the Time of Edward I 1909), 29, ed. put 30. As it, Coke “he possession may who is in sit down quiet in rest and . . . .” 6 Co. Rep. 57b. To vindicate this enjoy- undisturbed use and ment of one’s property, trespass the law of being. came into leading early English historians of the law have observed the constant interplay possession between “our law of trespass” and have concluded that since “to allow men to make forcible entries on land ... is to violence,” trespass invite protection laws’ possession prohibition “is a self-help the interest of order.” 2 Pollock Maitland, supra,

Case Details

Case Name: Bell v. Maryland

Court Name: Supreme Court of the United States

Date Published: Jun 22, 1964

Citation: 378 U.S. 226

Docket Number: 12

Court Abbreviation: SCOTUS