BELL ET AL. v. MARYLAND.
CERTIORARI TO THE COURT OF APPEALS OF MARYLAND.
Argued October 14-15, 1963.
Decided June 22, 1964.
Petitioners, Negro "sit-in" demonstrators, were asked to leave a Baltimore restaurant solely because of their race, refused to do so, and were convicted of violating Maryland's criminal trespass law. The convictions were affirmed by the highest state court. Subsequent to that affirmance, and prior to disposition of the case on writ of certiorari in this Court, the City of Baltimore and the State of Maryland enacted "public accommodations" laws, applicable to Baltimore, making it unlawful for restaurants to deny their services to any person because of his race. Held: The judgments of the Maryland Court of Appeals are vacated and reversed and the case is remanded to that court, so that it may consider whether the convictions should be nullified in view of the supervening change in state law. Pp. 227-242.
Jack Greenberg argued the cause for petitioners. With him on the brief were Constance Baker Motley, James M. Nabrit III, Charles L. Black, Jr., Juanita Jackson Mitchell, Tucker R. Dearing, Matthew J. Perry, Lincoln C. Jenkins, Derrick A. Bell, Jr., William T. Coleman, Jr., Louis H. Pollak, Richard R. Powell, Joseph L. Rauh, Jr. and John Silard.
Loring E. Hawes and Russell R. Reno, Jr., Assistant Attorneys General of Maryland, argued the cause for respondent. With Mr. Hawes on the brief were Thomas B. Finan, Attorney General of Maryland, and Robert C. Murphy, Deputy Attorney General.
Ralph S. Spritzer, by special leave of Court, argued the cause for the United States, as amicus curiae, urging reversal. With him on the briefs were Solicitor General Cox, Assistant Attorney General Marshall, Louis F. Claiborne, Harold H. Greene, Howard A. Glickstein and David Rubin.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
Petitioners, 12 Negro students, were convicted in a Maryland state court as a result of their participation in a "sit-in" demonstration at Hooper's restaurant in the City of Baltimore in 1960. The convictions were based on a record showing in summary that a group of 15 to 20 Negro students, including petitioners, went to Hooper's restaurant to engage in what their counsel describes as a "sit-in protest" because the restaurant would not serve Negroes. The "hostess," on orders of Mr. Hooper, the president of the corporation owning the restaurant, told them. "solely on the basis of their color," that they would [378 U.S. 226, 228] not be served. Petitioners did not leave when requested to by the hostess and the manager; instead they went to tables, took seats, and refused to leave, insisting that they be served. On orders of Mr. Hooper the police were called, but they advised that a warrant would be necessary before they could arrest petitioners. Mr. Hooper then went to the police station and swore out warrants, and petitioners were accordingly arrested.
The statute under which the convictions were obtained was the Maryland criminal trespass law, 577 of Art. 27 of the Maryland Code, 1957 edition, under which it is a misdemeanor to "enter upon or cross over the land, premises or private property of any person or persons in this State after having been duly notified by the owner or his agent not to do so." The convictions were affirmed by the Maryland Court of Appeals, 227 Md. 302, 176 A. 2d 771 (1962), and we granted certiorari. 374 U.S. 805 .
We do not reach the questions that have been argued under the Equal Protection and Due Process Clauses of the Fourteenth Amendment. It appears that a significant change has taken place in the applicable law of Maryland since these convictions were affirmed by the Court of Appeals. Under this Court's settled practice in such circumstances, the judgments must consequently be vacated and reversed and the case remanded so that the state court may consider the effect of the supervening change in state law.
Petitioners' convictions were affirmed by the Maryland Court of Appeals on January 9, 1962. Since that date, Maryland has enacted laws that abolish the crime of which petitioners were convicted. These laws accord petitioners a right to be served in Hooper's restaurant, and make unlawful conduct like that of Hooper's president and hostess in refusing them service because of their race. On June 8, 1962, the City of Baltimore enacted its Ordinance No. 1249, adding 10A to Art. 14A of the [378 U.S. 226, 229] Baltimore City Code (1950 ed.). The ordinance, which by its terms took effect from the date of its enactment, prohibits owners and operators of Baltimore places of public accommodation, including restaurants, from denying their services or facilities to any person because of his race. A similar "public accommodations law," applicable to Baltimore City and Baltimore County though not to some of the State's other counties, was adopted by the State Legislature on March 29, 1963. Art. 49B Md. Code 11 (1963 Supp.). This statute went into effect on June 1, 1963, as provided by 4 of the Act, Acts 1963, c. 227. The statute provides that:
An examination of Maryland decisions indicates that under the common law of Maryland, the supervening enactment of these statutes abolishing the crime for which petitioners were convicted would cause the Maryland Court of Appeals at this time to reverse the convictions and order the indictments dismissed. For Maryland follows the universal common-law rule that when the legislature repeals a criminal statute or otherwise removes the State's condemnation from conduct that was formerly deemed criminal, this action requires the dismissal of a pending criminal proceeding charging such conduct. The rule applies to any such proceeding which, at the time of the supervening legislation, has not yet reached final disposition in the highest court authorized to review it. Thus, in Keller v. State, 12 Md. 322 (1858), the statute under which the appellant had been indicted and convicted was repealed by the legislature after the case had been argued on appeal in the Court of Appeals but before that court's decision, although the repeal was not brought to the notice of the court until after the judgment of affirmance had been announced. The appellant's subsequent motion to correct the judgment was granted, and the judgment was reversed. The court explained, id., at 325-327:
It is true that the present case is factually distinguishable, since here the legislative abolition of the crime for which petitioners were convicted occurred after rather than before the decision of the Maryland Court of Appeals. But that fact would seem irrelevant. For the purpose of applying the rule of the Maryland common law, it appears that the only question is whether the legislature acts before the affirmance of the conviction becomes final. In the present case the judgment is not yet final, for it is on direct review in this Court. This would thus seem to be a case where, as in Keller, the change of law has occurred "pending an appeal on a writ of error from the judgment of an inferior court," and hence where the Maryland Court of Appeals upon remand from this Court would render its decision "in accordance with the law at the time of final judgment." It thus seems that the Maryland Court of Appeals would take account of the supervening enactment of the city and state public accommodations laws and, applying the principle that a statutory offense which has "ceased to exist is no longer punishable at all," Beard v. State, supra, 74 Md. 130, 135, 21 A. 700, 702 (1891), would now reverse petitioners' convictions and order their indictments dismissed.
The Maryland common law is not, however, the only Maryland law that is relevant to the question of the effect of the supervening enactments upon these convictions. Maryland has a general saving clause statute which in certain circumstances "saves" state convictions from the common-law effect of supervening enactments. It is thus necessary to consider the impact of that clause upon the present situation. The clause, Art. 1 Md. Code 3 (1957), reads as follows:
The absence of such terms from the public accommodations laws becomes more significant when it is recognized that the effect of these enactments upon the trespass statute was quite different from that of an "amendment" [378 U.S. 226, 235] or even a "repeal" in the usual sense. These enactments do not - in the manner of an ordinary "repeal," even one that is substantive rather than only formal or technical - merely erase the criminal liability that had formerly attached to persons who entered or crossed over the premises of a restaurant after being notified not to because of their race; they go further and confer upon such persons an affirmative right to carry on such conduct, making it unlawful for the restaurant owner or proprietor to notify them to leave because of their race. Such a substitution of a right for a crime, and vice versa, is a possibly unique phenomenon in legislation; it thus might well be construed as falling outside the routine categories of "amendment" and "repeal."
Cogent state policy considerations would seem to support such a view. The legislative policy embodied in the supervening enactments here would appear to be much more strongly opposed to that embodied in the old enactment than is usually true in the case of an "amendment" or "repeal." It would consequently seem unlikely that the legislature intended the saving clause to apply in this situation, where the result of its application would be the conviction and punishment of persons whose "crime" has been not only erased from the statute books but officially vindicated by the new enactments. A legislature that passed a public accommodations law making it unlawful to deny service on account of race probably did not desire that persons should still be prosecuted and punished for the "crime" of seeking service from a place of public accommodations which denies it on account of race. Since the language of the saving clause raises no barrier to a ruling in accordance with these policy considerations, we should hesitate long indeed before concluding that the Maryland Court of Appeals would definitely hold the saving clause applicable to save these convictions. [378 U.S. 226, 236]
Moreover, even if the word "repeal" or "amendment" were deemed to make the saving clause prima facie applicable, that would not be the end of the matter. There would remain a substantial possibility that the public accommodations laws would be construed as falling within the clause's exception: "unless the repealing . . . act shall expressly so provide." Not only do the policy considerations noted above support such an interpretation, but the operative language of the state public accommodations enactment affords a solid basis for a finding that it does "expressly so provide" within the terms of the saving clause. Whereas most criminal statutes speak in the future tense - see, for example, the trespass statute here involved, Art. 27 Md. Code 577: "Any person or persons who shall enter upon or cross over . . ." - the state enactment here speaks in the present tense, providing that "it is unlawful for an owner or operator . . . ." In this very context, the Maryland Court of Appeals has given effect to the difference between the future and present tense. In Beard v. State, supra, 74 Md. 130, 21 A. 700, the court, in holding that a supervening statute did not 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 statute used the word "shall" rather than the word "is." From this the court concluded that "The obvious intention of the Legislature in passing it was, not to interfere with past offences, but merely to fix a penalty for future ones." 74 Md., at 133, 21 A., at 701. Conversely here, the use of the present instead of the more usual future tense may very possibly be held by the Court of Appeals, especially in view of the policy considerations involved, to constitute an "express provision" by the legislature, within the terms of the saving clause, that it did intend its new enactment to apply to past as well as future conduct - that it did not intend the saving clause to be applied, in derogation of [378 U.S. 226, 237] the common-law rule, so as to permit the continued prosecution and punishment of persons accused of a "crime" which the legislature has now declared to be a right.
As a matter of Maryland law, then, the arguments supporting a conclusion that the saving clause would not apply to save these convictions seem quite substantial. It is not for us, however, to decide this question of Maryland law, or to reach a conclusion as to how the Maryland Court of Appeals would decide it. Such a course would be inconsistent with our tradition of deference to state courts on questions of state law. Nor is it for us to ignore the supervening change in state law and proceed to decide the federal constitutional questions presented by this case. To do so would be to decide questions which, because of the possibility that the state court would now reverse the convictions, are not necessarily presented for decision. Such a course would be inconsistent with our constitutional inability to render advisory opinions, and with our consequent policy of refusing to decide a federal question in a case that might be controlled by a state ground of decision. See Murdock v. Memphis, 20 Wall. 590, 634-636. To avoid these pitfalls - to let issues of state law be decided by state courts and to preserve our policy of avoiding gratuitous decisions of federal questions - we have long followed a uniform practice where a supervening event raises a question of state law pertaining to a case pending on review here. That practice is to vacate and reverse the judgment and remand the case to the state court, so that it may reconsider it in the light of the supervening change in state law.
The rule was authoritatively stated and applied in Missouri ex rel. Wabash R. Co. v. Public Service Comm'n, 273 U.S. 126 , a case where the supervening event was - as it is here - enactment of new state legislation asserted to change the law under which the case had been decided [378 U.S. 226, 238] by the highest state court. Speaking for the Court, Mr. Justice Stone said:
The question of Maryland law raised here by the supervening enactment of the city and state public accommodations laws clearly falls within the rule requiring us to vacate and reverse the judgment and remand the case to the Maryland Court of Appeals. Indeed, we have followed this course in other situations involving a state saving clause or similar provision, where it was considerably more probable than it is here that the State would desire its judgment to stand despite the supervening change of law. In Roth v. Delano, 338 U.S. 226 , the Court vacated and remanded the judgment in light of the State's supervening repeal of the applicable statute despite the presence in the repealer of a saving clause which, unlike the one here, was clearly applicable in terms. In Dorchy v. Kansas, supra, 264 U.S. 286 , the supervening event was a holding by this Court that another [378 U.S. 226, 240] portion of the same state statute was unconstitutional, and the question was whether Dorchy's conviction could stand nevertheless. The state statute had a severability provision which seemingly answered the question conclusively, providing that "If any section or provision of this act shall be found invalid by any court, it shall be conclusively presumed that this act would have been passed by the legislature without such invalid section or provision . . . ." Nevertheless, a unanimous Court vacated and reversed the judgment and remanded the case, so that the question could be decided by the state court. Mr. Justice Brandeis said, 264 U.S., at 290 -291:
In short, this case involves not only a question of state law but an open and arguable one. This Court thus has a "duty to recognize the changed situation," Gulf, C. & S. F. R. Co. v. Dennis, supra, 224 U.S., at 507 , and, by vacating and reversing the judgment and remanding the case, to give effect to the principle that "the meaning and effect of the state statute now in question are primarily for the determination of the state court." Missouri ex rel. Wabash R. Co. v. Public Service Comm'n, supra, 273 U.S., at 131 . [378 U.S. 226, 242]
Accordingly, the judgment of the Maryland Court of Appeals should be vacated and the case remanded to that court, and to this end the judgment is
[ Footnote 2 ] The rule has also been consistently recognized and applied by this Court. Thus in United States v. Schooner Peggy, 1 Cranch 103, 110, Chief Justice Marshall held: "It is in the general true that the province of an appellate court is only to enquire whether a judgment when rendered was erroneous or not. But if subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied. If the law be constitutional, . . . I know of no court which can contest its obligation. . . . In such a case the court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside." See also Yeaton v. United States, 5 Cranch 281, 283; Maryland v. Baltimore & O. R. Co., 3 How. 534, 552; United States v. Tynen, 11 Wall. 88, 95; United States v. Reisinger, 128 U.S. 398, 401 ; United States v. Chambers, 291 U.S. 217, 222 -223; Massey v. United States, 291 U.S. 608 .
[ Footnote 3 ] Thus the statewide public accommodations law enacted in 1964, see note 1, supra, is entitled "An Act to repeal and re-enact, with amendments . . .," the 1963 Act, and provides expressly at several points that certain portions of the 1963 Act - none of which is here relevant - are "hereby repealed." But the 1964 enactment, like the 1963 enactment and the Baltimore City ordinance, contains no reference whatever to the trespass law, much less a statement that that law is being in any respect "repealed" or "amended."
[ Footnote 4 ] The Maryland case law under the saving clause is meager and sheds little if any light on the present question. The clause has been construed only twice since its enactment in 1912, and neither case seems directly relevant here. State v. Clifton, 177 Md. 572, 10 A. 2d 703 (1940); State v. Kennerly, 204 Md. 412, 104 A. 2d 632 (1954). In two other cases, the clause was ignored. State v. American Bonding Co., 128 Md. 268, 97 A. 529 (1916); Green v. State, 170 Md. 134, 183 A. 526 (1936). The failure to apply the clause in these cases was explained by the Court of Appeals in the Clifton case, supra, 177 Md., at 576-577, 10 A. 2d, at 705, on the basis that "in neither of those proceedings did it appear that any penalty, forfeiture, or liability had actually been incurred." This may indicate a narrow construction of the clause, since the language of the clause would seem to have applied to both cases. Also indicative of a narrow construction is the statement of the Court of Appeals in the Kennerly case, supra, that the saving clause is "merely an aid to interpretation, stating the general rule against repeals by implication in more specific form." 204 Md., at 417, 104 A. 2d, at 634. Thus, if the case law has any pertinence, it supports a narrow construction of the saving clause and hence a conclusion that the clause is inapplicable here.
[ Footnote 5 ] See also Metzger Motor Car Co. v. Parrott, 233 U.S. 36 ; New York ex rel. Whitman v. Wilson, 318 U.S. 688 ; State Tax Comm'n v. Van Cott, 306 U.S. 511 ; Roth v. Delano, 338 U.S. 226, 231 ; Williams v. Georgia, 349 U.S. 375, 390 -391: Trunkline Gas Co. v. Hardin County, 375 U.S. 8 .
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE GOLDBERG concurs as respects Parts II-V, for reversing and directing dismissal of the indictment.
I reach the merits of this controversy. The issue is ripe for decision and petitioners, who have been convicted of asking for service in Hooper's restaurant, are entitled to an answer to their complaint here and now.
On this the last day of the Term, we studiously avoid decision of the basic issue of the right of public accommodation under the Fourteenth Amendment, remanding the case to the state court for reconsideration in light of an issue of state law.
This case was argued October 14 and 15, 1963 - over eight months ago. The record of the case is simple, the constitutional guidelines well marked, the precedents marshalled. Though the Court is divided, the preparation of opinions laying bare the differences does not require even two months, let alone eight. Moreover, a majority reach the merits of the issue. Why then should a minority prevent a resolution of the differing views?
The laws relied on for vacating and remanding were enacted June 8, 1962, and March 29, 1963 - long before oral argument. We did indeed not grant certiorari until June 10, 1963. Hence if we were really concerned with this state law question, we would have vacated and remanded for reconsideration in light of those laws on June 10, 1963. By now we would have had an answer and been able to put our decision into the mainstream of the law at this critical hour. If the parties had been concerned, [378 U.S. 226, 243] they too might have asked that we follow that course. Maryland adverted to the new law merely to show why certiorari should not be granted. At the argument and at our conferences we were not concerned with that question, the issue being deemed frivolous. Now it is resurrected to avoid facing the constitutional question.
The whole Nation has to face the issue; Congress is conscientiously considering it; some municipalities have had to make it their first order of concern; law enforcement officials are deeply implicated, North as well as South; the question is at the root of demonstrations, unrest, riots, and violence in various areas. The issue in other words consumes the public attention. Yet we stand mute, avoiding decision of the basic issue by an obvious pretense.
The clash between Negro customers and white restaurant owners is clear; each group claims protection by the Constitution and tenders the Fourteenth Amendment as justification for its action. Yet we leave resolution of the conflict to others, when, if our voice were heard, the issues for the Congress and for the public would become clear and precise. The Court was created to sit in troubled times as well as in peaceful days.
There is a school of thought that our adjudication of a constitutional issue should be delayed and postponed as long as possible. That school has had many stout defenders and ingenious means have at times been used to avoid constitutional pronouncements. Yet judge-made rules, fashioned to avoid decision of constitutional questions, largely forget what Chief Justice Marshall wrote in Fletcher v. Peck, 6 Cranch 87, 137-138:
For these reasons I reach the merits; and I vote to reverse the judgments of conviction outright.
The issue in this case, according to those who would affirm, is whether a person's "personal prejudices" may dictate the way in which he uses his property and whether he can enlist the aid of the State to enforce those "personal prejudices." With all respect, that is not the real issue. The corporation that owns this restaurant did not refuse service to these Negroes because "it" did not like Negroes. The reason "it" refused service was because "it" thought "it" could make more money by running a segregated restaurant.
In the instant case, G. Carroll Hooper, president of the corporate chain owning the restaurant here involved, testified concerning the episode that gave rise to these convictions. The reasons were wholly commercial ones:
I leave those questions to another part of this opinion 2 and turn to an even more basic issue.
I now assume that the issue is the one stated by those who would affirm. The case in that posture deals with a relic of slavery - an institution that has cast a long shadow across the land, resulting today in a second-class citizenship in this area of public accommodations. [378 U.S. 226, 247]
The Thirteenth, Fourteenth, and Fifteenth Amendments had "one pervading purpose . . . we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him." Slaughter-House Cases, 16 Wall. 36, 71.
Prior to those Amendments, Negroes were segregated and disallowed the use of public accommodations except and unless the owners chose to serve them. To affirm these judgments would remit those Negroes to their old status and allow the States to keep them there by the force of their police and their judiciary.
We deal here with public accommodations - with the right of people to eat and travel as they like and to use facilities whose only claim to existence is serving the public. What the President said in his State of the Union Message on January 8, 1964, states the constitutional right of all Americans, regardless of race or color, to be treated equally by all branches of government:
The Fourteenth Amendment says "No State shall make or enforce any law which shall abridge the privileges or [378 U.S. 226, 249] immunities of citizens of the United States." The Fourteenth Amendment also makes every person who is born here a citizen; and there is no second or third or fourth class of citizenship. See, e. g., Schneider v. Rusk, 377 U.S. 163, 168 .
We deal here with incidents of national citizenship. As stated in the Slaughter-House Cases, 16 Wall. 36, 71-72, concerning the federal rights resting on the Thirteenth, Fourteenth, and Fifteenth Amendments:
There has been a judicial reluctance to expand the content of national citizenship beyond racial discrimination, voting rights, the right to travel, safe custody in the hands of a federal marshal, diplomatic protection abroad, and the like. See Slaughter-House Cases, supra; Logan v. United States, 144 U.S. 263 ; United States v. Classic, 313 U.S. 299 ; Edwards v. California, 314 U.S. 160 ; Kent v. Dulles, 357 U.S. 116 . The reluctance has been due to a fear of creating constitutional refuges for a host of rights historically subject to regulation. See Madden v. Kentucky, 309 U.S. 83 , over-ruling Colgate v. Harvey, 296 U.S. 404 . But those fears have no relevance here, where we deal with Amendments whose dominant purpose was to guarantee the freedom of the slave race and establish a regime where national citizenship has only one class.
The manner in which the right to be served in places of public accommodations is an incident of national citizenship and of the right to travel is summarized in H. R. Rep. No. 914, Pt. 2, 88th Cong., 1st Sess., pp. 7-8:
As stated in Ex parte Virginia, 100 U.S. 339, 344 -345, where a federal indictment against a state judge for discriminating against Negroes in the selection of jurors was upheld:
The problem in this case, and in the other sit-in cases before us, is presented as though it involved the situation of "a private operator conducting his own business on his own premises and exercising his own judgment" 5 as to whom he will admit to the premises.
The property involved is not, however, a man's home or his yard or even his fields. Private property is involved, but it is property that is serving the public. As my Brother GOLDBERG says, it is a "civil" right, not a "social" right, with which we deal. Here it is a restaurant refusing service to a Negro. But so far as principle and law are concerned it might just as well be a hospital refusing [378 U.S. 226, 253] admission to a sick or injured Negro (cf. Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959), or a drugstore refusing antibiotics to a Negro, or a bus denying transportation to a Negro, or a telephone company refusing to install a telephone in a Negro's home.
The problem with which we deal has no relation to opening or closing the door of one's home. The home of course is the essence of privacy, in no way dedicated to public use, in no way extending an invitation to the public. Some businesses, like the classical country store where the owner lives overhead or in the rear, make the store an extension, so to speak, of the home. But such is not this case. The facts of these sit-in cases have little resemblance to any institution of property which we customarily associate with privacy.
Joseph H. Choate, who argued the Income Tax Cases (Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429, 534 ), said:
There is no specific provision in the Constitution which protects rights of privacy and enables restaurant owners to refuse service to Negroes. The word "property" is, indeed, not often used in the Constitution, though as a matter of experience and practice we are committed to free enterprise. The Fifth Amendment makes it possible to take "private property" for public use only on payment of "just compensation." The ban on quartering soldiers in any home in time of peace, laid down by the Third Amendment, is one aspect of the right of privacy. The Fourth Amendment in its restrictions on searches and seizures also sets an aura of privacy around private interests. And the Due Process Clauses of the Fifth and Fourteenth Amendments lay down the command that no person shall be deprived "of life, liberty, or property, without due process of law." (Italics added.) From these provisions those who would affirm find emanations that lead them to the conclusion that the private owner of a restaurant serving the public can pick and choose whom he will serve and restrict his dining room to whites only.
Apartheid, however, is barred by the common law as respects innkeepers and common carriers. There were, to be sure, criminal statutes that regulated the common callings. But the civil remedies were made by judges who had no written constitution. We, on the other hand, live under a constitution that proclaims equal protection under the law. Why then, even in the absence of a statute, should apartheid be given constitutional sanction in the restaurant field? That was the question I asked in Lombard v. Louisiana, 373 U.S. 267 . I repeat it here. Constitutionally speaking, why should Hooper Food Co., Inc., [378 U.S. 226, 255] or Peoples Drug Stores - or any other establishment that dispenses food or medicines - stand on a higher, more sanctified level than Greyhound Bus when it comes to a constitutional right to pick and choose its customers?
The debates on the Fourteenth Amendment show, as my Brother GOLDBERG points out, that one of its purposes was to grant the Negro "the rights and guarantees of the good old common law." Post, at 294. The duty of common carriers to carry all, regardless of race, creed, or color, was in part the product of the inventive genius of judges. See Lombard v. Louisiana, 373 U.S., at 275 -277. We should make that body of law the common law of the Thirteenth and Fourteenth Amendments so to speak. Restaurants in the modern setting are as essential to travelers as inns and carriers.
Are they not as much affected with a public interest? Is the right of a person to eat less basic than his right to travel, which we protected in Edwards v. California, 314 U.S. 160 ? Does not a right to travel in modern times shrink in value materially when there is no accompanying right to eat in public places?
The right of any person to travel interstate irrespective of race, creed, or color is protected by the Constitution. Edwards v. California, supra. Certainly his right to travel intrastate is as basic. Certainly his right to eat at public restaurants is as important in the modern setting as the right of mobility. In these times that right is, indeed, practically indispensable to travel either interstate or intrastate.
The requirement of equal protection, like the guarantee of privileges and immunities of citizenship, is a constitutional command directed to each State.
State judicial action is as clearly "state" action as state administrative action. Indeed, we held in Shelley v. Kraemer, 334 U.S. 1, 20 , that "State action, as that [378 U.S. 226, 256] phrase is understood for the purposes of the Fourteenth Amendment, refers to exertions of state power in all forms."
That case involved suits in state courts to enforce restrictive covenants in deeds of residential property whereby the owner agreed that it should not be used or occupied by any person except a Caucasian. There was no state statute regulating the matter. That is, the State had not authorized by legislative enactment the use of restrictive covenants in residential property transactions; nor was there any administrative regulation of the matter. Only the courts of the State were involved. We held without dissent in an opinion written by Chief Justice Vinson that there was nonetheless state action within the meaning of the Fourteenth Amendment:
Maryland's action against these Negroes was as authoritative as any case where the State in one way or another puts its full force behind a policy. The policy here was segregation in places of public accommodation; and Maryland enforced that policy with her police, her prosecutors, and her courts.
The owners of the residential property in Shelley v. Kraemer were concerned, as was the corporate owner of this Maryland restaurant, over a possible decrease in the value of the property if Negroes were allowed to enter. It was testified in Shelley v. Kraemer that white purchasers got better bank loans than Negro purchasers:
An occupant of a "white" area testified in Hurd v. Hodge, 334 U.S. 24 , another companion case to Shelley v. Kraemer:
The customer in a restaurant is transitory; he comes and may never return. The colored family who buys the house next door is there for keeps - night and day. If "personal prejudices" are not to be the criterion in one case they should not be in the other. We should put these restaurant cases in line with Shelley v. Kraemer, holding that what the Fourteenth Amendment requires in restrictive covenant cases it also requires from restaurants. [378 U.S. 226, 260]
Segregation of Negroes in the restaurants and lunch counters of parts of America is a relic of slavery. It is a badge of second-class citizenship. It is a denial of a privilege and immunity of national citizenship and of the equal protection guaranteed by the Fourteenth Amendment against abridgment by the States. When the state police, the state prosecutor, and the state courts unite to convict Negroes for renouncing that relic of slavery, the "State" violates the Fourteenth Amendment.
I would reverse these judgments of conviction outright, as these Negroes in asking for service in Hooper's restaurant were only demanding what was their constitutional right.
S. H. Kress & Co., operating 272 stores in 30 States, its stock being listed on the New York Stock Exchange; McCrory Corporation, with 1,307 stores, its stock being listed on the New York Stock Exchange; J. J. Newberry Co., with 567 stores of which 371 serve food, its stock being listed on the New York Stock Exchange; F. W. Woolworth Co., with 2,130 stores, its stock also being listed on the New York Stock Exchange; Eckerd Drugs, having 17 stores with its stock traded over-the-counter. F. W. Woolworth has over 90,000 stockholders; J. J. Newberry about 8,000; McCrory over 24,000; S. H. Kress over 8,000; Eckerd Drugs about 1,000. [378 U.S. 226, 261]
At the national level most "eating places," as Appendix IV shows, are individual proprietorships or partnerships. But a substantial number are corporate in form; and even though in numbers they are perhaps an eighth of the others, in business done they make up a much larger percentage of the total.
Those living in the Washington, D.C., metropolitan area know that it is true in that area - the hotels are incorporated; Howard Johnson Co., listed on the New York Stock Exchange, has 650 restaurants and over 15,000 stockholders; Hot Shoppes, Inc., has 4,900 stockholders; Thompson Co. (involved in District of Columbia v. Thompson Co., 346 U.S. 100 ) has 50 restaurants in this country with over 1,000 stockholders and its stock is listed on the New York Stock Exchange; Peoples Drug Stores, with a New York Stock Exchange listing, has nearly 5,000 stockholders. See Moody's Industrial Manual (1963 ed.).
All the sit-in cases involve a contest in a criminal trial between Negroes who sought service and state prosecutors and state judges who enforced trespass laws against them. The corporate beneficiaries of these convictions, those whose constitutional rights were vindicated by these convictions, are not parties to these suits. The beneficiary in the present case was Hooper Food Co., Inc., a Maryland corporation; and as seen in Appendix IV, "eating places" in Maryland owned by corporations, though not a fourth in number of those owned by individuals or partnerships, do nearly as much business as the other two combined.
So far as the corporate owner is concerned, what constitutional right is vindicated? It is said that ownership of property carries the right to use it in association with such people as the owner chooses. The corporate owners in these cases - the stockholders - are unidentified members of the public at large, who probably never saw these petitioners, who may never have frequented [378 U.S. 226, 262] these restaurants. What personal rights of theirs would be vindicated by affirmance? Why should a stockholder in Kress, Woolworth, Howard Johnson, or any other corporate owner in the restaurant field have standing to say that any associational rights personal to him are involved? Why should his interests - his associational rights - make it possible to send these Negroes to jail?
Who, in this situation, is the corporation? Whose racial prejudices are reflected in "its" decision to refuse service to Negroes? The racial prejudices of the manager? Of the stockholders? Of the board of directors?
The Court in Santa Clara Country v. Southern Pacific R. Co., 118 U.S. 394 , interrupted counsel on oral argument to say, "The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of opinion that it does." 118 U.S., at 396 . Later the Court held that corporations are "persons" within the meaning of the Due Process Clause of the Fourteenth Amendment. Minneapolis R. Co. v. Beckwith, 129 U.S. 26, 28 . While that view is the law today, it prevailed only over dissenting opinions. See the dissent of MR. JUSTICE BLACK in Connecticut General Co. v. Johnson, 303 U.S. 77, 85 ; and my dissent in Wheeling Steel Corp. v. Glander, 337 U.S. 562, 576 . MR. JUSTICE BLACK said of that doctrine and its influence:
We deal here, we are told, with personal rights - the rights pertaining to property. One need not share his home with one he dislikes. One need not allow another to put his foot upon his private domain for any reason he desires - whether bigoted or enlightened. In the simple agricultural economy that Jefferson extolled, the conflicts posed were highly personal. But how is a "personal" right infringed when a corporate chain store, for example, is forced to open its lunch counters to people of all races? How can that so-called right be elevated to a constitutional level? How is that corporate right more "personal" than the right against self-incrimination?
The revolutionary change effected by an affirmance in these sit-in cases would be much more damaging to an open and free society than what the Court did when it gave the corporation the sword and the shield of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Affirmance finds in the Constitution a corporate right to refuse service to anyone "it" chooses and to get the State to put people in jail who defy "its" will. [378 U.S. 226, 264]
More precisely, affirmance would give corporate management vast dimensions for social planning. 1a
Affirmance would make corporate management the arbiter of one of the deepest conflicts in our society: corporate management could then enlist the aid of state police, state prosecutors, and state courts to force apartheid on the community they served, if apartheid best suited the corporate need; or, if its profits would be better served by lowering the barriers of segregation, it could do so.
Veblen, while not writing directly about corporate management and the racial issue, saw the danger of leaving fundamental, governmental decisions to the managers or absentee owners of our corporate enterprises:
At times a corporation has standing to assert the constitutional rights of its members, as otherwise the rights peculiar to the members as individuals might be lost or impaired. Thus in NAACP v. Alabama, 357 U.S. 449 , the question was whether the N. A. A. C. P., a membership corporation, could assert on behalf of its members a right personal to them to be protected from compelled disclosure by the State of their affiliation with it. In that context we said the N. A. A. C. P. was "the appropriate party to assert these rights, because it and its members are in every practical sense identical." Id., at 459. We felt, moreover, that to deny the N. A. A. C. P. standing to raise the question and to require it to be claimed by the members themselves "would result in nullification of the right at the very moment of its assertion." Ibid. Those were the important reasons governing our decision, the adverse effect of disclosure on the N. A. A. C. P. itself being only a make-weight. Id., at 459-460.
The corporate owners of a restaurant, like the corporate owners of streetcars, buses, telephones, and electric light and gas facilities, are interested in balance sheets and in profit and loss statements. "It" does not stand at the door turning Negroes aside because of "its" feelings of antipathy to black-skinned people. "It" does not have any associational rights comparable to the classic individual store owner at a country crossroads whose store, in the dichotomy of an Adam Smith, was indeed no different from his home. "It" has been greatly transformed, as Berle and Means, The Modern Corporation and Private Property (1932), made clear a generation ago; and "it" has also transformed our economy. Separation of power [378 U.S. 226, 268] or control from beneficial ownership was part of the phenomenon of change:
A corporation may exclude Negroes if "it" thinks "it" can make more money doing so. "It" may go along with community prejudices when the profit and loss statement will benefit; "it" is unlikely to go against the current of community prejudice when profits are endangered. 3a [378 U.S. 226, 270]
Veblen stated somewhat the same idea in Absentee Ownership (1923), p. 107:
In the instant case, G. Carroll Hooper, president of the corporate chain owning the restaurant here involved, testified concerning the episode that gave rise to these convictions. His reasons were wholly commercial ones, as we have already seen. [378 U.S. 226, 271]
There are occasions when the corporation is little more than a veil for man and wife or brother and brother; and disregarding the corporate entity often is the instrument for achieving a just result. But the relegation of a Negro customer to second-class citizenship is not just. Nor is fastening apartheid on America a worthy occasion for tearing aside the corporate veil.
B. In the following cases, the testimony of corporate officers shows that the reason was either a commercial one or, which amounts to the same thing, that service to Negroes was not in accord with local custom:
1. Bouie v. City of Columbia, post, p. 347.
Dr. Guy Malone, the manager of the Columbia branch of Eckerd Drugs of Florida, Inc., testified:
A Vice President of Shell's City, Inc., testified:
Mr. Claude M. Breeden, the manager of the McCrory branch in Raleigh, testified:
Mr. Albert C. Watts, the manager of the S. H. Kress & Co. outlet in Charleston, testified:
Mr. H. C. Whiteaker, the manager of McCrory's in Rock Hill, testified:
In Griffin v. Maryland, ante, p. 130, the president of the corporations which own and operate Glen Echo Amusement Park said he would admit Chinese, Filipinos, Indians and, generally, anyone but Negroes. He did not elaborate, beyond stating that a private property owner has the right to make such a choice.
In Barr v. City of Columbia, ante, p. 146, the co-owner and manager of the Taylor Street Pharmacy said Negroes could purchase in other departments of his store and that whether for business or personal reasons, he felt he had a right to refuse service to anyone.
In Williams v. North Carolina, post, p. 548, the president of Jones Drug Company said Negroes were not permitted to take seats at the lunch counter. He did say, however, that Negroes could purchase food and eat it on the premises so long as they stood some distance from the lunch counter, such as near the back door.
In Lupper v. Arkansas, 377 U.S. 989 , and Harris v. Virginia, post, p. 552, the record discloses only that the establishment did not serve Negroes.
1. Gus Blass & Co. Department Store.
Retail trade - Summary Statistics (1961).
Drugstores with fountain:
The dates are those in which the law was first enacted; the underlining means that the law is enforced by a commission. In addition to the above, the following cities in States without pertinent laws have enacted antidiscrimination ordinances: Albuquerque, N. Mex. (housing); Ann Arbor, Mich. (housing); Baltimore, Md. (employment); Beloit, Wis. (housing); Chicago, Ill. (housing); El Paso, Tex. (public accommodations); Ferguson, Mo. (public accommodations); Grand Rapids, Mich. (housing); Kansas City, Mo. (public accommodations); Louisville, Ky. (public accommodations); Madison, Wis. (housing); Oberlin, Ohio (housing); Omaha, Nebr. (employment); Peoria, Ill. (housing); St. Joseph, Mo. (public accommodations); St. Louis, Mo. (housing and public accommodations); Toledo, Ohio (housing); University City, Mo. (public accommodations); Yellow Springs, Ohio (housing); and Washington, D.C. (public accommodations and housing).
[For concurring opinion of GOLDBERG, J., see p. 286.]
[ Footnote 1a ] [378 U.S. 226, 264] The conventional claims of corporate management are stated in Ginzberg and Berg, Democratic Values and the Rights of Management (1963), pp. 153-154: "The founding fathers, despite some differences of opinion among them, were of one mind when it came to fundamentals - the best guarantee of freedom was the retention by the individual of the broadest possible scope for decision-making. And early in the nation's history, when the Supreme Court decided that the corporation possessed many of the same rights as individuals, continuity was maintained in basic structure; the corporate owner as well as the individual had wide scope for decision-making. In recent decades, another extension of this trend became manifest. The agents of owners - the managers - were able to subsume for themselves the authorities inherent in ownership. The historical record, then, is clear. The right to do what one likes with his property lies at the very foundation of our historical experience. This is a basis for management's growing concern with the restrictions and limitations which have increasingly come to characterize an arena where the widest scope for individual initiative previously prevailed."
[ Footnote 2a ] [378 U.S. 226, 265] "Fred Harvey, president of Harvey's Department Store in Nashville, says that when his store desegregated its lunch counters in 1960 only 13 charge accounts were closed out of 60,000. `The greatest surprise I ever had was the apparent "so-what" attitude of white customers,' says Mr. Harvey. "Even where business losses occur, they usually are only temporary. At the 120-room Peachtree Manor Hotel in Atlanta, owner Irving H. Goldstein says his business dropped off 15% when the hotel desegregated a year ago. `But now we are only slightly behind a year ago and we can see we are beginning to recapture the business we initially lost,' declares Mr. Goldstein. "William F. Davoren, owner of the Brownie Drug Co. in Huntsville, Ala., reports that though his business fell a bit for several weeks after [378 U.S. 226, 266] lunch counters were desegregated, he's now picked up all that he lost. Says he: `I could name a dozen people who regarded it as a personal affront when I started serving Negroes, but have come back as if nothing had happened.' "Even a segregation-minded businessman in Huntsville agrees that white customers frequently have short memories when it comes to the race question. W. T. Hutchens, general manager of three Walgreen stores there, says he held out when most lunch counter operators gave in to sit-in pressures last July. In one shopping center where his competition desegregated, Mr. Hutchens says his business shot up sharply and the store's lunch counter volume registered a 12% gain for the year. However, this year business has dropped back to pre-integration levels `because a lot of people have forgotten' the defiant role his stores played during the sit-ins, he adds. "Some Southern businessmen who have desegregated say they have picked up extra business as a result of the move. "At Raleigh, N.C., where Gino's Restaurant was desegregated this year, owner Jack Griffiths reports only eight whites have walked out after learning the establishment served Negroes, and he says, `we're getting plenty of customers to replace the hard-headed ones.' "In Dallas, integration of hotels and restaurants has `opened up an entirely new area of convention prospects,' according to Ray Bennison, convention manager of the Chamber of Commerce. `This year we've probably added $8 million to $10 million of future bookings because we're integrated,' Mr. Bennison says." Wall Street Journal, July 15, 1963, pp. 1, 12. As recently stated by John Perry: "The manager has become accustomed to seeing well-dressed Negroes in good restaurants, on planes and trains, in church, in hotel lobbies, at United Fund meetings, on television, at his university club. Only a few years ago, if he met a Negro at some civic or political meeting, he understood that the man was there because he was a Negro; he was a kind of exhibit. Today it is much more likely that the Negro is there because of his position or profession. It makes a difference that everyone feels. "The manager is aware that companies other than his are changing. He sees it happening. He reads about it. It is talked about, usually [378 U.S. 226, 267] off the record and informally, at business gatherings. So, in due course, questions are shaped in his mind: `How can we keep in step? How can we change, without making a big deal of it? Can we do it without a lot of uproar?'" Business - Next Target for Integration, March-April, 1963, Harvard Business Rev., pp. 104, 111.
[ Footnote 3a ] [378 U.S. 226, 269] The New York Times stated the idea editorially in an analogous situation on October 31, 1963. P. 32: "When it comes to speaking out on business matters, Roger Blough, chairman of the United States Steel Corporation, does not mince words. "Mr. Blough is a firm believer in freedom of action for corporate management, a position he made clear in his battle with the Administration last year. But he also has put some severe limits on the exercise of corporate responsibility, for he rejects the suggestion that U.S. Steel, the biggest employer in Birmingham, Ala., should use its economic influence to erase racial tensions. Mr. Blough feels that U.S. Steel has fulfilled its responsibilities by following a non-discriminatory hiring policy in Birmingham, and looks upon any other [378 U.S. 226, 270] measures as both `repugnant' and `quite beyond what a corporation should do' to improve conditions. "This hands-off strategy surely underestimates the potential influence of a corporation as big as U.S. Steel, particularly at the local level. It could, without affecting its profit margins adversely or getting itself directly involved in politics, actively work with those groups in Birmingham trying to better race relations. Steel is not sold on the retail level, so U.S. Steel has not been faced with the economic pressure used against the branches of national chain stores. "Many corporations have belatedly recognized that it is in their own self-interest to promote an improvement in Negro opportunities. As one of the nation's biggest corporations, U.S. Steel and its shareholders have as great a stake in eliminating the economic imbalances associated with racial discrimination as any company. Corporate responsibility is not easy to define or to measure, but in refusing to take a stand in Birmingham, Mr. Blough appears to have a rather narrow, limited concept of his influence."
[ Footnote 1b ] [378 U.S. 226, 278] The only "sit-in" cases not involving a corporation are Barr v. City of Columbia, ante, p. 146, and Daniels v. Virginia, 374 U.S. 500 . In Barr, the business establishment was the Taylor Street Pharmacy, which apparently is a partnership; in Daniels, it was the 403 Restaurant in Alexandria, Virginia, an individual proprietorship.
[ Footnote 2d ] [378 U.S. 226, 285] Hospitals are not enumerated in the law; however, a reasonable interpretation of the broad language contained in the public accommodations law could include various health facilities.
[ Footnote 4d ] [378 U.S. 226, 285] Hospitals where operations (surgical) are performed are required to render emergency or first aid to any applicant if the accident or injury complained of could cause death or severe injury.
[ Footnote 5d ] [378 U.S. 226, 285] In 1963, the Governor issued an executive order requiring all executive departments and agencies whose functions relate to the supervising or licensing of persons or organizations doing business to take all lawful action necessary to prevent racial or religious discrimination.
[ Footnote 1 ] See Appendix II.
[ Footnote 2 ] See Appendix I.
[ Footnote 3 ] For accounts of the Black Codes see Fleming, The Sequel of Appomattox (1919), pp. 94-98; Sen. Ex. Doc. No. 6, 39th Cong., 2d Sess.; I Oberholtzer, A History of the United States Since the Civil War (1917), pp. 126-127, 136-137, 175. They are summarized as follows by Morison and Commager, The Growth of the American Republic (1950), pp. 17-18: "These black codes provided for relationships between the whites and the blacks in harmony with realities - as the whites understood them - rather than with abstract theory. They conferred upon the [378 U.S. 226, 248] freedmen fairly extensive privileges, gave them the essential rights of citizens to contract, sue and be sued, own and inherit property, and testify in court, and made some provision for education. In no instance were the freedmen accorded the vote or made eligible for juries, and for the most part they were not permitted to testify against white men. Because of their alleged aversion to steady work they were required to have some steady occupation, and subjected to special penalties for violation of labor contracts. Vagrancy and apprenticeship laws were especially harsh, and lent themselves readily to the establishment of a system of peonage. The penal codes provided harsher and more arbitrary punishments for blacks than for whites, and some states permitted individual masters to administer corporal punishment to `refractory servants.' Negroes were not allowed to bear arms or to appear in all public places, and there were special laws governing the domestic relations of the blacks. In some states laws closing to the freedmen every occupation save domestic and agricultural service, betrayed a poor-white jealousy of the Negro artisan. Most codes, however, included special provisions to protect the Negro from undue exploitation and swindling. On the whole the black codes corresponded fairly closely to the essential fact that nearly four million ex-slaves needed special attention until they were ready to mingle in free society on more equal terms. But in such states as South Carolina and Mississippi there was clearly evident a desire to keep the freedmen in a permanent position of tutelage, if not of peonage."
[ Footnote 4 ] Other "relics of slavery" have recently come before this Court. In Hamilton v. Alabama, 376 U.S. 650 , we reversed a judgment of contempt imposed on a Negro witness under these circumstances: "Cross examination by Solicitor Rayburn: "Q. What is your name, please? "A. Miss Mary Hamilton. "Q. Mary, I believe - you were arrested - who were you arrested by? "A. My name is Miss Hamilton. Please address me correctly. "Q. Who were you arrested by, Mary? "A. I will not answer a question - [378 U.S. 226, 249] "By Attorney Amaker: The witness's name is Miss Hamilton. "A. - your question until I am addressed correctly. "The Court: Answer the question. "The Witness: I will not answer them unless I am addressed correctly. "The Court: You are in contempt of court - "Attorney Conley: Your Honor - your Honor - "The Court: You are in contempt of this court, and you are sentenced to five days in jail and a fifty dollar fine." Additional relics of slavery are mirrored in recent decisions: Brown v. Board of Education, 347 U.S. 483 (segregated schools); Johnson v. Virginia, 373 U.S. 61 (segregated courtroom); Peterson v. Greenville, 373 U.S. 244 , and Lombard v. Louisiana, 373 U.S. 267 (segregated restaurants); Wright v. Georgia, 373 U.S. 284 , and Watson v. Memphis, 373 U.S. 526 (segregated public parks).
MR. JUSTICE GOLDBERG, with whom THE CHIEF JUSTICE joins, and with whom MR. JUSTICE DOUGLAS joins as to Parts II-V, concurring.
I join in the opinion and the judgment of the Court and would therefore have no occasion under ordinary circumstances to express my views on the underlying constitutional issue. Since, however, the dissent at length discusses this constitutional issue and reaches a conclusion with which I profoundly disagree, I am impelled to state the reasons for my conviction that the Constitution guarantees to all Americans the right to be treated as equal members of the community with respect to public accommodations.
The Declaration of Independence states the American creed: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." This ideal was not fully achieved with the adoption of our Constitution because of the hard and tragic reality of Negro slavery. The Constitution of the new Nation, while heralding liberty, in effect declared all men to be free and equal - except black men who were to be neither free nor equal. This inconsistency reflected a fundamental departure from the American creed, a departure which it took a tragic civil war to set right. With the adoption, however, of the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution, freedom and equality were guaranteed expressly to all regardless "of race, color, or previous condition of servitude." 1 United States v. Reese, 92 U.S. 214, 218 . [378 U.S. 226, 287]
In light of this American commitment to equality and the history of that commitment, these Amendments must be read not as "legislative codes which are subject to continuous revision with the changing course of events, but as the revelation of the great purposes which were intended to be achieved by the Constitution as a continuing instrument of government." United States v. Classic, 313 U.S. 299, 316 . The cases following the 1896 decision in Plessy v. Ferguson, 163 U.S. 537 , too often tended to negate this great purpose. In 1954 in Brown v. Board of Education, 347 U.S. 483 , this Court unanimously concluded that the Fourteenth Amendment commands equality and that racial segregation by law is inequality. Since Brown the Court has consistently applied this constitutional standard to give real meaning to the Equal Protection Clause "as the revelation" of an enduring constitutional purpose. 2
The dissent argues that the Constitution permits American citizens to be denied access to places of public accommodation solely because of their race or color. Such a view does not do justice to a Constitution which [378 U.S. 226, 288] is color blind and to the Court's decision in Brown v. Board of Education, which affirmed the right of all Americans to public equality. We cannot blind ourselves to the consequences of a constitutional interpretation which would permit citizens to be turned away by all the restaurants, or by the only restaurant, in town. The denial of the constitutional right of Negroes to access to places of public accommodation would perpetuate a caste system in the United States.
The Thirteenth, Fourteenth and Fifteenth Amendments do not permit Negroes to be considered as second-class citizens in any aspect of our public life. Under our Constitution distinctions sanctioned by law between citizens because of race, ancestry, color or religion "are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality." Hirabayashi v. United States, 320 U.S. 81, 100 . We make no racial distinctions between citizens in exacting from them the discharge of public responsibilities: The heaviest duties of citizenship - military service, taxation, obedience to laws - are imposed evenhandedly upon black and white. States may and do impose the burdens of state citizenship upon Negroes and the States in many ways benefit from the equal imposition of the duties of federal citizenship. Our fundamental law which insures such an equality of public burdens, in my view, similarly insures an equality of public benefits. This Court has repeatedly recognized and applied this fundamental principle to many aspects of community life. 3
Of course our constitutional duty is "to construe, not to rewrite or amend, the Constitution." Post, at 342 (dissenting opinion of MR. JUSTICE BLACK). Our sworn duty to construe the Constitution requires, however, that [378 U.S. 226, 289] we read it to effectuate the intent and purposes of the Framers. We must, therefore, consider the history and circumstances indicating what the Civil War Amendments were in fact designed to achieve.
In 1873, in one of the earliest cases interpreting the Thirteenth and Fourteenth Amendments, this Court observed:
The historical evidence amply supports the conclusion of the Government, stated by the Solicitor General in this Court, that:
In Strauder v. West Virginia, supra, this Court had occasion to consider the concept of civil rights embodied in the Fourteenth Amendment:
In the debates that culminated in the acceptance of the Fourteenth Amendment, the theme of granting "civil," as distinguished from "social," rights constantly recurred. 13 Although it was commonly recognized that in some areas the civil-social distinction was misty, the critical fact is that it was generally understood that "civil rights" certainly included the right of access to places of public accommodation for these were most clearly places and areas of life where the relations of men were traditionally regulated by governments. 14 Indeed, the opponents both [378 U.S. 226, 295] of the Freedmen's Bureau bill and of the Civil Rights Act of 1866 frequently complained, without refutation or contradiction, that these measures would grant Negroes the right to equal treatment in places of public accommodation. Thus, for example, Senator Davis of Kentucky, in opposing the Freedmen's Bureau bill, protested that "commingling with [white persons] in hotels, theaters, steamboats, and other civil rights and privileges, were always forbid to free negroes, until . . ." recently granted by Massachusetts. 15
An 1873 decision of the Supreme Court of Iowa clearly reflects the contemporary understanding of the meaning of the Civil Rights Act of 1866. In Coger v. North West. Union Packet Co., 37 Iowa 145, a colored woman sought damages for assault and battery occurring when the officers of a Mississippi River steamboat ordered that she be removed from a dining table in accordance with a practice of segregation in the main dining room on the boat. In giving judgment for the plaintiff, the Iowa Supreme Court quoted the Civil Rights Act of 1866 and concluded that:
Underlying the congressional discussions, and at the heart of the Fourteenth Amendment's guarantee of equal protection, was the assumption that the State by statute or by "the good old common law" was obligated to guarantee all citizens access to places of public accommodation. This obligation was firmly rooted in ancient [378 U.S. 226, 297] Anglo-American tradition. In his work on bailments, Judge Story spoke of this tradition:
Thus a fundamental assumption of the Fourteenth Amendment was that the States would continue, as they had for ages, to enforce the right of citizens freely to enter public places. This assumption concerning the affirmative duty attaching to places of public accommodation was so rooted in the experience of the white citizenry that law and custom blended together indistinguishably. 22 Thus it seemed natural for the Supreme Court of Mississippi, considering a public accommodations provision in a civil rights statute, to refer to "those customs which we call the common law, that have come down to us from the remote past," Donnell v. State, 48 Miss., at 680, [378 U.S. 226, 305] and thus it seems significant that the various proposals for federal legislation often interchangeably referred to discriminatory acts done under "law" or under "custom." 23 In sum, then, it was understood that under the Fourteenth Amendment the duties of the proprietors of places of public accommodation would remain as they had long been and that the States would now be affirmatively obligated to insure that these rights ran to Negro as well as white citizens.
The Civil Rights Act of 1875, enacted seven years after the Fourteenth Amendment, specifically provided that all citizens must have "the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement . . ." 18 Stat. 335. The constitutionality of this federal legislation was reviewed by this Court in 1883 in the Civil Rights Cases, 109 U.S. 3 . The dissent in the present case purports to follow the "state action" concept articulated in that early decision. There the Court had declared that under the Fourteenth Amendment:
A State applying its statutory or common law 28 to deny rather than protect the right of access to public accommodations has clearly made the assumption of the opinion [378 U.S. 226, 309] in the Civil Rights Cases inapplicable and has, as the author of that opinion would himself have recognized, denied the constitutionally intended equal protection. Indeed, in light of the assumption so explicitly stated in the Civil Rights Cases, it is significant that Mr. Justice Bradley, who spoke for the Court, had earlier in correspondence with Circuit Judge Woods expressed the view that the Fourteenth Amendment "not only prohibits the making or enforcing of laws which shall abridge the privileges of the citizen; but prohibits the states from denying to all persons within its jurisdiction the equal protection of the laws." 29 In taking this position, which is consistent with his opinion and the assumption in the Civil Rights Cases, 30 he concluded that: "Denying includes inaction as well as action. And denying the equal protection of the laws includes the omission to protect, as well as the omission [378 U.S. 226, 310] to pass laws for protection." 31 These views are fully consonant with this Court's recognition that state conduct which might be described as "inaction" can nevertheless [378 U.S. 226, 311] constitute responsible "state action" within the meaning of the Fourteenth Amendment. See, e. g., Marsh v. Alabama, 326 U.S. 501 ; Shelley v. Kraemer, 334 U.S. 1 ; Terry v. Adams, 345 U.S. 461 ; Barrows v.Jackson, 346 U.S. 249 .
In the present case the responsibility of the judiciary in applying the principles of the Fourteenth Amendment is clear. The State of Maryland has failed to protect petitioners' constitutional right to public accommodations and is now prosecuting them for attempting to exercise that right. The decision of Maryland's highest court in sustaining these trespass convictions cannot be described as "neutral," for the decision is as affirmative in effect as if the State had enacted an unconstitutional law explicitly authorizing racial discrimination in places of public accommodation. A State, obligated under the Fourteenth Amendment to maintain a system of law in which Negroes are not denied protection in their claim to be treated as equal members of the community, may not use its criminal trespass laws to frustrate the constitutionally granted right. Nor, it should be added, may a State frustrate this right by legitimating a proprietor's attempt at self-help. To permit self-help would be to disregard the principle that "[t]oday, no less than 50 years ago, the solution to the problems growing out of race relations' cannot be promoted by depriving citizens of their constitutional rights and privileges,' Buchanan v. Warley . . . 245 U.S., at 80 -81." Watson v. City of Memphis, 358 U.S. 526, 539 . As declared in Cooper v. Aaron, 358 U.S. 1, 16 , "law and order are not . . . to be preserved by depriving the Negro . . . of [his] constitutional rights."
In spite of this, the dissent intimates that its view best comports with the needs of law and order. Thus it is said: "It would betray our whole plan for a tranquil and orderly society to say that a citizen, because of his personal [378 U.S. 226, 312] prejudices, habits, attitudes, or beliefs, is cast outside the law's protection and cannot call for the aid of officers sworn to uphold the law and preserve the peace." Post, at 327-328. This statement, to which all will readily agree, slides over the critical question: Whose conduct is entitled to the "law's protection"? Of course every member of this Court agrees that law and order must prevail; the question is whether the weight and protective strength of law and order will be cast in favor of the claims of the proprietors or in favor of the claims of petitioners. In my view the Fourteenth Amendment resolved this issue in favor of the right of petitioners to public accommodations and it follows that in the exercise of that constitutionally granted right they are entitled to the "law's protection." Today, as long ago, "[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws . . . ." Marbury v. Madison, 1 Cranch 137, 163.
My Brother DOUGLAS convincingly demonstrates that the dissent has constructed a straw man by suggesting that this case involves "a property owner's right to choose his social or business associates." Post, at 343. The restaurant involved in this case is concededly open to a large segment of the public. Restaurants such as this daily open their doors to millions of Americans. These establishments provide a public service as necessary today as the inns and carriers of Blackstone's time. It should be recognized that the claim asserted by the Negro petitioners concerns such public establishments and does not infringe upon the rights of property owners or personal associational interests.
Petitioners frankly state that the "extension of constitutional guarantees to the authentically private choices of man is wholly unacceptable, and any constitutional [378 U.S. 226, 313] theory leading to that result would have reduced itself to absurdity." Indeed, the constitutional protection extended to privacy and private association assures against the imposition of social equality. As noted before, the Congress that enacted the Fourteenth Amendment was particularly conscious that the "civil" rights of man should be distinguished from his "social" rights. 32 Prejudice and bigotry in any form are regrettable, but it is the constitutional right of every person to close his home or club to any person or to choose his social intimates and business partners solely on the basis of personal prejudices including race. These and other rights pertaining to privacy and private association are themselves constitutionally protected liberties.
We deal here, however, with a claim of equal access to public accommodations. This is not a claim which significantly impinges upon personal associational interests; nor is it a claim infringing upon the control of private property not dedicated to public use. A judicial ruling on this claim inevitably involves the liberties and freedoms [378 U.S. 226, 314] both of the restaurant proprietor and of the Negro citizen. The dissent would hold in effect that the restaurant proprietor's interest in choosing customers on the basis of race is to be preferred to the Negro's right to equal treatment by a business serving the public. The history and purposes of the Fourteenth Amendment indicate, however, that the Amendment resolves this apparent conflict of liberties in favor of the Negro's right to equal public accommodations. As the Court said in Marsh v. Alabama, 326 U.S. 501, 506 : "The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it." 33 The broad acceptance of the public in this and in other restaurants clearly demonstrates that the proprietor's interest in private or unrestricted association is slight. 34 The relationship between the modern innkeeper or restaurateur and the customer is relatively impersonal and evanescent. This is highlighted by cases such as Barr v. City of Columbia, ante, at 146, Bouie v. City of Columbia, post, at 347, and Robinson v. Florida, ante, at 153, in which Negroes are invited into all departments of the store but nonetheless ordered, in the name of private association or property rights, not to purchase and eat food, as other customers do, on the premises. As the history of the common law [378 U.S. 226, 315] and, indeed, of our own times graphically illustrates, the interests of proprietors of places of public accommodation have always been adapted to the citizen's felt need for public accommodations, a need which is basic and deeprooted. This history and the purposes of the Fourteenth Amendment compel the conclusion that the right to be served in places of public accommodation regardless of color cannot constitutionally be subordinated to the proprietor's interest in discriminatorily refusing service.
Of course, although the present case involves the right to service in a restaurant, the fundamental principles of the Fourteenth Amendment apply with equal force to other places of public accommodation and amusement. Claims so important as those presented here cannot be dismissed by asserting that the Fourteenth Amendment, while clearly addressed to inns and public conveyances, did not contemplate lunch counters and soda fountains. Institutions such as these serve essentially the same needs in modern life as did the innkeeper and the carrier at common law. 35 It was to guard against narrow conceptions that Chief Justice Marshall admonished the Court never to forget "that it is a constitution we are expounding . . . a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs." McCulloch v. Maryland, 4 Wheat. 316, 407, 415. Today, as throughout the history of the Court, we should remember that "in determining whether a provision of the Constitution applies to a new subject matter, it is of little significance that it is one with which the framers were not familiar. For in setting up an enduring framework of government they undertook to carry out for the indefinite future and in all the vicissitudes of the changing affairs of men, those fundamental purposes which the instrument itself discloses." United States v. Classic, 313 U.S. 299, 316 . [378 U.S. 226, 316]
In my view the historical evidence demonstrates that the traditional rights of access to places of public accommodation were quite familiar to Congressmen and to the general public who naturally assumed that the Fourteenth Amendment extended these traditional rights to Negroes. But even if the historical evidence were not as convincing as I believe it to be, the logic of Brown v. Board of Education, 347 U.S. 483 , based as it was on the fundamental principle of constitutional interpretation proclaimed by Chief Justice Marshall, 36 requires that petitioners' claim be sustained.
In Brown, after stating that the available history was "inconclusive" on the specific issue of segregated public schools, the Court went on to say:
It is, and should be, more true today than it was over a century ago that "[t]he great advantage of the Americans is that . . . they are born equal" 37 and that in the eyes of the law they "are all of the same estate." The [378 U.S. 226, 318] first Chief Justice of the United States, John Jay, spoke of the "free air" of American life. The great purpose of the Fourteenth Amendment is to keep it free and equal. Under the Constitution no American can, or should, be denied rights fundamental to freedom and citizenship. I therefore join in reversing these trespass convictions.
[ Footnote 1 ] See generally Flack, The Adoption of the Fourteenth Amendment (1908); Harris, The Quest for Equality (1960).
[ Footnote 2 ] E. g., Anderson v. Martin, 375 U.S. 399 ; Goss v. Board of Education, 373 U.S. 683 ; Watson v. City of Memphis, 373 U.S. 526 ; Lombard v. Louisiana, 373 U.S. 267 ; Peterson v. City of Greenville, 373 U.S. 244 ; Johnson v. Virginia, 373 U.S. 61 ; Turner v. City of Memphis, 369 U.S. 350 ; Burton v. Wilmington Parking Authority, 365 U.S. 715 ; Boynton v. Virginia, 364 U.S. 454 ; Gomillion v. Lightfoot, 364 U.S. 339 ; Cooper v. Aaron, 358 U.S. 1 . As Professor Freund has observed, Brown and the decisions that followed it "were not an abrupt departure in constitutional law or a novel interpretation of the guarantee of equal protection of the laws. The old doctrine of separate-but-equal, announced in 1896, had been steadily eroded for at least a generation before the school cases, in the way that precedents are whittled down until they finally collapse." Freund, The Supreme Court of the United States (1961), p. 173. See e. g., Missouri ex rel. Gaines v. Canada, 305 U.S. 337 ; Sweatt v. Painter, 339 U.S. 629 ; McLaurin v. Oklahoma State Regents, 339 U.S. 637 .
[ Footnote 3 ] See supra, note 2.
[ Footnote 4 ] See, e. g., Cong. Globe, 38th Cong., 1st Sess., 839; Cong. Globe, 38th Cong., 1st Sess., 1156-1157; Cong. Globe, 42d Cong., 2d Sess., 381-383; 2 Cong. Rec. 4081-4082. For the general attitude of post-Civil War Congresses toward discrimination in places of public accommodation, see Frank and Munro, The Original Understanding of "Equal Protection of the Laws," 50 Col. L. Rev. 131, 150-153 (1950).
[ Footnote 5 ] The Civil Rights Act of 1866, 14 Stat. 27, which was the precursor of the Fourteenth Amendment, did not specifically enumerate such rights but, like the Fourteenth Amendment, was nevertheless understood to open to Negroes places of public accommodation. See Flack, op. cit., supra, note 1, at 45 (opinion of the press); Frank and Munro, supra, note 4, at 150-153; Lewis, The Sit-In Cases: Great Expectations, 1963 Sup. Ct. Rev. 101, 145-146. See also Coger v. The North West. Union Packet Co., 37 Iowa 145; Ferguson v. Gies, 82 Mich. 358, 46 N. W. 718. The Government, in its brief in this Court, has agreed with these authorities: "[W]e may feel sure that any member of Congress would have answered affirmatively if he had been asked in 1868 whether the Civil Rights Act of 1866 and the Fourteenth Amendment would have the effect of securing Negroes the same right as other members of the public to use hotels, trains and public conveyances."
[ Footnote 6 ] Justice Simrall, a Kentuckian by birth, was a plantation owner and a prominent Mississippi lawyer and Mississippi State Legislator before the Civil War. Shortly before the war, he accepted a chair of law at the University of Louisville; he continued in that position until the beginning of the war when he returned to his plantation in Mississippi. He subsequently served for nine years on the Mississippi Supreme Court, the last three years serving as Chief Justice. He later lectured at the University of Mississippi and in 1890 was elected a member of the Constitutional Convention of Mississippi and served as chairman of the judiciary committee. 5 National Cyclopaedia of American Biography (1907), 456; 1 Rowland, Courts, Judges, and Lawyers of Mississippi 1798-1935 (1935), 98-99.
[ Footnote 7 ] Cong. Globe, 39th Cong., 1st Sess., at 2459, 2462, 2465, 2467, 2538; Flack, op. cit., supra, note 1, at 94; Harris, op. cit., supra, note 1, at 30-40; McKitrick, Andrew Johnson and Reconstruction (1960), 326-363; Gressman, The Unhappy History of Civil Rights Legislation, 50 Mich. L. Rev. 1323, 1328-1332 (1952). A majority of the courts that considered the Act of 1866 had accepted its constitutionality. United States v. Rhodes, 27 Fed. Cas. 785 (No. 16,151); In re Turner, 24 Fed. Cas. 337 (No. 14,247); Smith v. Moody, 26 Ind. 299; Hart v. Hoss & Elder, 26 La. Ann. 90. Contra, People v. Brady, 40 Cal. 198 (compare People v. Washington, 36 Cal. 658); Bowlin v. Commonwealth, 65 Ky. 5.
[ Footnote 8 ] As MR. JUSTICE BLACK pointed out in the Appendix to his dissent in Adamson v. California, 332 U.S. 46, 68 , 107-108: "Both proponents and opponents of 1 of the [Fourteenth] amendment spoke of its relation to the Civil Rights Bill which had been previously passed over the President's veto. Some considered that the amendment settled any doubts there might be as to the constitutionality of the Civil Rights Bill. Cong. Globe, [39th Cong., 1st Sess.,] 2511, 2896. Others maintained that the Civil Rights Bill would be unconstitutional unless and until the amendment was adopted. Cong. Globe, 2461, 2502, 2506, 2513, 2961. Some thought that amendment was nothing but the Civil Rights [Bill] `in another shape.' Cong. Globe, 2459, 2462, 2465, 2467, 2498, 2502."
[ Footnote 9 ] Cong. Globe, 39th Cong., 1st Sess., at 684 (Senator Summer).
[ Footnote 10 ] Id., at 322 (Senator Trumbull). The recurrent references to the right "to go and come at pleasure" as being "among the natural rights of free men" reflect the common understanding that the concepts of liberty and citizenship embraced the right to freedom of movement, the effective right to travel freely. See id., at 41-43, 111, 475. Blackstone had stated that the "personal liberty of individuals" embraced "the power of locomotion, of changing situation, or moving one's person [378 U.S. 226, 294] to whatsoever place one's own inclination may direct, without imprisonment or restraint, unless by due course of law." 1 Black-stone, Commentaries (Lewis ed. 1902), 134. This heritage was correctly described in Kent v. Dulles, 357 U.S. 116, 125 -127: "The right to travel is a part of the `liberty' of which the citizen cannot be deprived without due process of law under the Fifth [and Fourteenth Amendments]. . . . In Anglo-Saxon law that right was emerging at least as early as the Magna Carta. . . . Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad, like travel within the country, may be necessary for a livelihood. It may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values. See Crandall v. Nevada, 6 Wall. 35, 44; Williams v. Fears, 179 U.S. 270, 274 ; Edwards v. California, 314 U.S. 160 ." See also Aptheker v. Secretary of State, post, p. 500. This right to move freely has always been thought to be and is now more than ever inextricably linked with the right of the citizen to be accepted and to be treated equally in places of public accommodation. See the opinion of MR. JUSTICE DOUGLAS, ante, at 250-251.
[ Footnote 11 ] Cong. Globe, 39th Cong., 1st Sess., at 474 (Senator Trumbull).
[ Footnote 12 ] Id., at 111 (Senator Wilson). See infra, at note 17.
[ Footnote 13 ] E. g., id., at 476, 599, 606, 1117-1118, 1151, 1157, 1159, 1264.
[ Footnote 14 ] Frank and Munro, supra, note 4, at 148-149: "One central theme emerges from the talk of `social equality': there are two kinds of relations of men, those that are controlled by the law and those that are [378 U.S. 226, 295] controlled by purely personal choice. The former involves civil rights, the latter social rights. There are statements by proponents of the Amendment from which a different definition could be taken, but this seems to be the usual one." See infra, at notes 16, 32.
[ Footnote 15 ] Cong. Globe, 39th Cong., 1st Sess., 936. (Emphasis added.) See also id., at 541, 916, App. 70.
[ Footnote 16 ] The court continued: "Without doubting that social rights and privileges are not within the protection of the laws and constitutional provisions in question, we are satisfied that the rights and privileges which were denied plaintiff are not within that class. She was refused accommodations equal to those enjoyed by white passengers. . . . She was unobjectionable in deportment and character. . . . She complains not because she was deprived of the society of white persons. Certainly no one will claim that the passengers in the cabin of a steamboat are there in the character of members of what is called society. Their companionship as travelers is not esteemed by any class of our people to create social relations. . . . The plaintiff. . . claimed no social privilege, but substantial privileges pertaining to her property and the protection of her person. It cannot be doubted that she was excluded from the table and cabin . . . because of prejudice entertained against her race . . . . The object of the amendments of the federal constitution and of the statutes above referred to, is to relieve citizens of the black race from the effects of this prejudice, to protect them in person and property from its spirit. The Slaughter House Cases [16 Wall. 36]. We are disposed to construe these laws according to their very spirit and intent, so that equal rights and equal protection shall be secured to all regardless of color or nationality." Id., at 157-158. See also Ferguson v. Gies, 82 Mich. 358, 46 N. W. 718.
[ Footnote 17 ] The treatise defined an innkeeper as "the keeper of a common inn for the lodging and entertainment of travellers and passengers . . . ." Story, Commentaries on the Law of Bailments (Schouler, 9th ed., 1878), 475. 3 Blackstone, op. cit., supra, note 10, at 166, stated a more general rule: "[I]f an inn-keeper, or other victualler, hangs out a sign and opens his house for travelers, it is an implied engagement to entertain all persons who travel that way; and upon this universal assumpsit an action on the case will lie against him for damages if he, without good reason, refuses to admit a traveler." (Emphasis added.) In Tidswell, The Innkeeper's Legal Guide (1864), p. 22, a "victualling house" is defined as a place "where people are provided with food and liquors, but not with lodgings," and in 3 Stroud, Judicial Dictionary (1903), as "a house where persons are provided with victuals, but without lodging." Regardless, however, of the precise content of state common-law rules and the legal status of restaurants at the time of the adoption of the Fourteenth Amendment, the spirit of the common law was both familiar and apparent. In 1701 in Lane v. Cotton, 12 Mod. 472, 484-485, Holt, C. J., had declared: "[W]herever any subject takes upon himself a public trust for the benefit of the rest of his fellow-subjects, he is eo ipso bound to serve the subject in all the things that are within the reach and comprehension of such an office, under pain of an action against him . . . . If on the road a shoe fall off my horse, and I come to a smith to have one put on, and the smith refuse to do it, an action will lie against him, because he has made profession of a trade which [378 U.S. 226, 298] is for the public good, and has thereby exposed and vested an interest of himself in all the king's subjects that will employ him in the way of his trade. If an innkeeper refuse to entertain a guest where his house is not full, an action will lie against him, and so against a carrier, if his horses be not loaded, and he refuse to take a packet proper to be sent by a carrier . . . . If the inn be full, or the carrier's horses laden, the action would not lie for such refusal; but one that has made profession of a public employment, is bound to the utmost extent of that employment to serve the public." See Munn v. Illinois, 94 U.S. 113, 126 -130 (referring to the duties traditionally imposed on one who pursues a public employment and exercises "a sort of public office"). Furthermore, it should be pointed out that the Framers of the Fourteenth Amendment, and the men who debated the Civil Rights Acts of 1866 and 1875, were not thinking only in terms of existing common-law duties but were thinking more generally of the customary expectations of white citizens with respect to places which were considered public and which were in various ways regulated by laws. See infra, at 298-305. Finally, as the Court acknowledged in Strauder v. West Virginia, 100 U.S. 303, 310 , the "Fourteenth Amendment makes no attempt to enumerate the rights it designed to protect," for those who adopted it were conscious that a constitutional "principle to be vital must be capable of wider application than the mischief which gave it birth." Weems v. United States, 217 U.S. 349, 373 . See infra, at 315.
[ Footnote 18 ] Similarly, in 1874, Senator Pratt said: "No one reading the Constitution can deny that every colored man is a citizen, and as such, so far as legislation may go, entitled to equal rights and privileges with white people. Can it be doubted that for a denial of any of the privileges or accommodations enumerated in the bill [proposed supplement to the Civil Rights Act of 1866] he could maintain a suit at common law against the inn-keeper, the public carrier, or proprietor or lessee of the theater who withheld them? Suppose a colored man presents himself at a public inn, kept for the accommodation of the public, is decently clad and behaves himself well and is ready to pay the customary charges for rest and refreshment, and is either refused admittance or treated as an inferior guest - placed at the second table and consigned to the garret, or compelled to make his couch upon the floor - does any one doubt that upon an appeal to the courts, the law if justly administered would pronounce the inn-keeper responsible to him in damages for the unjust discrimination? I suppose not. Prejudice in the jury-box might deny him substantial damages; but about the law in the matter there can be no two opinions. The same is true of public carriers on land or water. Their engagement with the public is to carry all persons who seek conveyance on their cars or boats to the extent of their facilities for certain established fares, and all persons who behave themselves and are not afflicted with any contagious disease are entitled to equal accommodations where they pay equal fares. "But it is asked, if the law be as you lay it down, where the necessity for this legislation, since the courts are open to all? My answer is, that the remedy is inadequate and too expensive, and involves too much loss of time and patience to pursue it. When a man is traveling, and far from home, it does not pay to sue every inn-keeper who, or railroad company which, insults him by unjust discrimination. Practically the remedy is worthless." 2 Cong. Rec. 4081-4082.
[ Footnote 19 ] The statute specifically referred to "the full and equal accommodations, advantages, facilities, and privileges of inns, restaurants, eating-houses, barber-shops, public conveyances on land and water, theaters, and all other places of public accommodation and amusement, subject only to the conditions and limitations established by law, and applicable alike to all citizens." 82 Mich. 358, 364, 46 N. W. 718, 720.
[ Footnote 20 ] The court also emphasized that the right under consideration was clearly a "civil" as distinguished from a "social" right. See 82 Mich., at 363, 367-368, 46 N. W., at 720-721; see also supra, at notes 13-14, 16 and infra, at note 32.
[ Footnote 21 ] After the Civil War, Southern States enacted the so-called "Black Codes" imposing disabilities reducing the emancipated Negroes to the status of "slaves of society," even though they were no longer the chattels of individual masters. See Cong. Globe, 39th Cong., 1st Sess., 39, 516-517; opinion of MR. JUSTICE DOUGLAS, ante, at 247, n. 3. For the substance of these codes, see 1 Fleming, Documentary History of Reconstruction (1906), 273-312; McPherson, The Political History of the United States During the Period of Reconstruction (1871), 29-44.
[ Footnote 22 ] See Lewis, supra, note 5, at 146: "It was assumed by more than a few members of Congress that theaters and places of amusement would be or could be opened to all as a result either of the Equal Protection Clause or the Privileges and Immunities Clause. Why would the framers believe this? Some mentioned the law's regulation of such enterprises, but this is not enough. Some other standard must delineate between the regulated who must offer equal treatment and those who need not. Whites did not have a legal right to demand admittance to [such] enterprises, but they were admitted. Perhaps this observed conduct was confused with required conduct, just as the observed status of the citizens of all free governments - the governments that Washington, J., could observe - was mistaken for inherent rights to the status. The important point is that the framers, or some of them, believed the Amendment would open places of public accommodation, and study of the debates reveals this belief to be the observed expectations of the majority, tantamount in practice to legal rights. . . ."
[ Footnote 23 ] E. g., The Supplementary Freedmen's Bureau Act, Cong. Globe, 39th Cong., 1st Sess., 318; The Civil Rights Act of 1866, 14 Stat. 27; The Enforcement Act of 1870, 16 Stat. 140; The Civil Rights Act of April 20, 1871, 17 Stat. 13; 42 U.S.C. 1983. See also the language of the Civil Rights Cases, 109 U.S. 3, 17 (quoted infra, at note 25).
[ Footnote 24 ] Of the five cases involved in the Civil Rights Cases, two concerned theaters, two concerned inns or hotels and one concerned a common carrier. In United States v. Nichols (involving a Missouri inn or hotel) the Solicitor General said: "I premise that upon the subject of inns the common law is in force in Missouri . . . ." Brief for the United States, Nos. 1, 2, 4, 460, October Term, 1882, p. 8. In United States v. Ryan (a California theatre) and in United States v. Stanley (a Kansas inn or hotel), it seems that common-law duties applied as well as state antidiscrimination laws. Calif. Laws 1897, p. 137; Kan. Laws 1874, p. 82. In United States v. Singleton (New York opera house) a state statute barred racial discrimination by "theaters, or other places of amusement." N. Y. Laws 1873, p. 303; Laws 1881, p. 541. In Robinson v. Memphis (a Tennessee railroad parlor car), the legal duties were less clear. The events occurred in 1879 and the trial was held in 1880. The common-law duty of carriers had existed in Tennessee and, from what appears in the record, was assumed by the trial judge, in charging the jury, to exist at the time of trial. However, in 1875 Tennessee had repealed the common-law rule, Laws 1875, p. 216, and in 1881 the State amended the law [378 U.S. 226, 307] to require a carrier to furnish separate but equal first-class accommodations, Laws 1881, p. 211.
[ Footnote 25 ] Reasoning from this same basic assumption, the Court said that Congress lacked the power, to enact such legislation: "[U]ntil some State law has been passed, or some State action through its officers or agents has been taken, adverse to the rights of citizens sought to be protected by the Fourteenth Amendment, no legislation of the United States under said amendment, nor any proceeding under such legislation, can be called into activity: for the prohibitions of the amendment are against State laws and acts done under State authority." 109 U.S., at 13 . And again: "[I]t is proper to state that civil rights, such as are guaranteed by the Constitution against State aggression, cannot be impaired by the wrongful acts of individuals, unsupported by State authority in the shape of laws, customs, or judicial or executive proceedings. The wrongful act of an individuals, unsupported by any such authority, is simply a private wrong, or a crime of that individual; an invasion of the rights of the injured party, it is true . . .; but if not sanctioned in some way by the State . . . his rights remain in full force, and may presumably be vindicated by resort to the laws of the State for redress." Id., at 17. (Emphasis added.) The argument of the Attorney General of Mississippi in Donnell v. State, 48 Miss. 661, explicitly related the State's new public accommodations law to the Thirteenth and Fourteenth Amendments. He stated that the Amendments conferred a national "power to enforce, `by appropriate legislation,' these rights, privileges and immunities of citizenship upon the newly enfranchised class . . ."; he then concluded that "the legislature of this state has sought, by this [anti-discrimination] act, to render any interference by congress unnecessary." Id., at 668. This view seems to accord with the assumption underlying the Civil Rights Cases.
[ Footnote 26 ] Woodward, The Strange Career of Jim Crow (1955), 15-26, points out that segregation in its modern and pervasive form is a relatively recent phenomenon. Although the speed of the movement varied, it was not until 1904, for example, that Maryland, the respondent in this case, extended Jim Crow legislation to railroad coaches and other common carriers. Md. Laws 1904, c. 110, p. 188; Md. Laws 1908, c. 248, p. 88. In the 1870's Negroes in Baltimore, Maryland, successfully challenged attempts to segregate transit facilities. See Fields v. Baltimore City Passenger R. Co., reported in Baltimore American, Nov. 14, 1871, p. 4, col. 3; Baltimore Sun, Nov. 13, 1871, p. 4, col. 2.
[ Footnote 27 ] Not until 1887 did Florida, the appellee in Robinson v. Florida, ante, at 153, enact a statute requiring separate railroad passenger facilities for the two races. Fla. Laws 1887, c. 3743, p. 116. The State, in following a pattern that was not unique, had not immediately repealed its reconstruction antidiscrimination statute. Fla. Digest 1881, c. 19, pp. 171-172; see Fla. Laws 1891, c. 4055, p. 92; Fla. Rev. Stat. 1892, p. viii.
[ Footnote 28 ] This Court has frequently held that rights and liberties protected by the Fourteenth Amendment prevail over state common-law, as well as statutory, rules. "The fact that [a State's] policy is expressed by the judicial organ . . . rather than by the legislature we have repeatedly ruled to be immaterial. . . . `[R]ights under [the Fourteenth] amendment turn on the power of the State, no matter by what organ it acts.' Missouri v. Dockery, 191 U.S. 165, 170 -71." Hughes v. Superior Court, 339 U.S. 460, 466 -467. See also Ex parte Virginia, 100 U.S. 339, 346 -347; American Federation of Labor v. Swing, 312 U.S. 321 ; New York Times Co. v. Sullivan, 376 U.S. 254, 265 .
[ Footnote 29 ] Letter from Justice Bradley to Circuit Judge (later Justice) William B. Woods (unpublished draft), Mar. 12, 1871, in the Bradley Papers on file, The New Jersey Historical Society, Newark, New Jersey; Supplemental Brief for the United States as Amicus Curiae, Nos. 6, 9, 10, 12 and 60, October Term, 1963, pp. 75-76. For a convenient source of excerpts, see Roche, Civil Liberty in the Age of Enterprise, 31 U. of Chi. L. Rev. 103, 108-110 (1963). See notes 30-31, infra.
[ Footnote 30 ] A comparison of the 1871 Bradley-Woods correspondence (and the opinion that Judge Woods later wrote, see note 31, infra) with Justice Bradley's 1883 opinion in the Civil Rights Cases indicates that in some respects the Justice modified his views. Attached to a draft of a letter to Judge Woods was a note, apparently written subsequently, by Justice Bradley stating that: "The views expressed in the foregoing letters were much modified by subsequent reflection, so far as relates to the power of Congress to pass laws for enforcing social equality between the races." The careful wording of this note, limiting itself to "the power of Congress to pass laws," supports the conclusion that Justice Bradley had only modified, not abandoned, his fundamental views and that the Civil Rights Cases should be read, as they were written, to rest on an explicit assumption as to the legal rights which the States were affirmatively protecting.
[ Footnote 31 ] The background of this correspondence and the subsequent opinion of Judge Woods in United States v. Hall, 26 Fed. Cas. 79 (Cas. No. 15,282), are significant. The correspondence on the subject apparently began in December 1870 when Judge Woods wrote Justice Bradley concerning the constitutional questions raised by an indictment filed by the United States under the Enforcement Act of 1870, 16 Stat. 140. The indictment charged that the defendants "did unlawfully and feloniously band and conspire together, with intent to injure, oppress, threaten and intimidate," certain citizens in their exercise of their "right of freedom of speech" and in "their free exercise and enjoyment of the right and privilege to peaceably assemble." The prosecution was instituted in a federal court in Alabama against private individuals whose conduct had in no way involved or been sanctioned by state action. In May of 1871, after corresponding with Justice Bradley, Judge Woods delivered an opinion upholding the federal statute and the indictment. The judge declared that the rights allegedly infringed were protected under the Privileges and Immunities Clause of the Fourteenth Amendment: "We think . . . that the right of freedom of speech, and the other rights enumerated in the first eight articles of amendment to the constitution of the United States, are the privileges and immunities of citizens of the United States, that they are secured by the constitution . . . ." 26 Fed. Cas., at 82. This position is similar to that of Justice Bradley two years later dissenting in the Slaughter-House Cases, 16 Wall. 36, 111, 118-119. More important for present purposes, however, is the fact that in analyzing the problem of "private" (nonstate) action, Judge Woods' reasoning and language follow that of Justice Bradley's letters. The judge concluded that under the Fourteenth Amendment Congress could adopt legislation: "to protect the fundamental rights of citizens of the United States against unfriendly or insufficient state legislation, for the fourteenth amendment not only prohibits the making or enforcing of laws which shall abridge the privileges of the citizen, but prohibits the states from denying to all persons within its jurisdiction the equal protection of the laws. Denying includes inaction as well as action, and denying the equal protection of the laws includes the omission to protect, as well as the omission to pass laws for protection." 26 Fed. Cas., at 81.
[ Footnote 32 ] The approach is reflected in the reasoning stated by the Supreme Court of Michigan in 1890: "Socially people may do as they please within the law, and whites may associate together, as may blacks, and exclude whom they please from their dwellings and private grounds; but there can be no separation in public places between people on account of their color alone which the law will sanction. . . . . . "The man who goes either by himself or with his family to a public place must expect to meet and mingle with all classes of people. He cannot ask, to suit his caprice or prejudice or social views, that this or that man shall be excluded because he does not wish to associate with them. He may draw his social line as closely as he chooses at home, or in other private places, but he cannot [sic] in a public place carry the privacy of his home with him, or ask that people not as good or great as he is shall step aside when he appears." Ferguson v. Gies, 82 Mich., at 363, 367-368, 46 N. W., at 720, 721. See supra, at notes 13-14.
[ Footnote 33 ] Cf. Munn v. Illinois, 94 U.S. 113, 125 -126: "Looking, then, to the common law, from whence came the [property] right which the Constitution protects, we find that when private property is `affected with a public interest, it ceases to be juris privati only.' This was said by Lord Chief Justice Hale more than two hundred years ago, in his treatise De Portibus Maris, 1 Harg. Law Tracts, 78, and has been accepted without objection as an essential element in the law of property ever since. Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large."
[ Footnote 34 ] See Lewis, supra, note 5, at 148.
[ Footnote 35 ] See supra, at note 17.
[ Footnote 36 ] See Bickel, The Original Understanding and the Segregation Decision, 69 Harv. L. Rev. 1 (1955).
[ Footnote 37 ] 2 De Tocqueville, Democracy in America (Bradley ed. 1948), 101.
MR. JUSTICE BLACK, with whom MR. JUSTICE HARLAN and MR. JUSTICE WHITE join, dissenting.
This case does not involve the constitutionality of any existing or proposed state or federal legislation requiring restaurant owners to serve people without regard to color. The crucial issue which the case does present but which the Court does not decide is whether the Fourteenth Amendment, of itself, forbids a State to enforce its trespass laws to convict a person who comes into a privately owned restaurant, is told that because of his color he will not be served, and over the owner's protest refuses to leave. We dissent from the Court's refusal to decide that question. For reasons stated, we think that the question should be decided and that the Fourteenth Amendment does not forbid this application of a State's trespass laws.
The petitioners were convicted in a Maryland state court on a charge that they "unlawfully did enter upon and cross over the land, premises and private property" of the Hooper Food Co., Inc., "after having been duly notified by Albert Warfel, who was then and there the servant and agent for Hooper Food Co.," not to do so, in violation of Maryland's criminal trespass statute. 1 The [378 U.S. 226, 319] conviction was based on a record showing in summary that:
On the same day that petitioners filed the petition for certiorari in this case, Baltimore enacted an ordinance forbidding privately owned restaurants to refuse to serve Negroes because of their color. 5 Nearly a year later Maryland, without repealing the state trespass law petitioners violated, passed a law applicable to Baltimore and some other localities making such discrimination by restaurant [378 U.S. 226, 321] owners unlawful. 6 We agree that the general judicial rule or practice in Maryland and elsewhere, as pointed out in the Court's opinion, is that a new statute repealing an old criminal law will, in the absence of a general or special saving clause, be interpreted as barring pending prosecutions under the old law. Although Maryland long has had a general saving clause clearly declaring that prosecutions brought under a subsequently repealed statute shall not be barred, the Court advances many arguments why the Maryland Court of Appeals could and perhaps would, so the Court says, hold that the new ordinance and statute nevertheless bar these prosecutions. On the premise that the Maryland court might hold this way and because we could thereby avoid passing upon the constitutionality of the State's trespass laws, the Court, without deciding the crucial constitutional questions which brought this case here, instead sends the case back to the state court to consider the effect of the new ordinance and statute.
We agree that this Court has power, with or without deciding the constitutional questions, to remand the case for the Maryland Court of Appeals to decide the state question as to whether the convictions should be set aside and the prosecutions abated because of the new laws. But as the cases cited by the Court recognize, our question is not one of power to take this action but of whether we should. And the Maryland court would be equally free to give petitioners the benefit of any rights they have growing out of the new law whether we upheld the trespass statute and affirmed, or refused to pass upon its validity at this time. For of course our affirmance of the state court's holding that the Maryland trespass [378 U.S. 226, 322] statute is constitutional as applied would in no way hamper or bar decision of further state questions which the Maryland court might deem relevant to protect the rights of the petitioners in accord with Maryland law. Recognition of this power of state courts after we affirm their holdings on federal questions is a commonplace occurrence. See, e. g., Piza Hermanos v. Caldentey, 231 U.S. 690, 692 (1914); Fidelity Ins. Trust & Safe Deposit Co. v. McClain, 178 U.S. 113, 114 (1900).
Nor do we agree that because of the new state question we should vacate the judgment in order to avoid deciding the constitutionality of the trespass statute as applied. We fully recognize the salutary general judicial practice of not unnecessarily reaching out to decide constitutional questions. But this is neither a constitutional nor a statutory requirement. Nor does the principle properly understood and applied impose a rigid, arbitrary, and inexorable command that courts should never decide a constitutional question in any single case if subtle ingenuity can think up any conceivable technique that might, if utilized, offer a distant possibility of avoiding decision. Here we believe the constitutionality of this trespass statute should be decided.
This case is but one of five involving the same kind of sit-in trespass problems we selected out of a large and growing group of pending cases to decide this very question. We have today granted certiorari in two more of this group of cases. 7 We know that many similar cases are now on the way and that many others are bound to follow. We [378 U.S. 226, 323] know, as do all others, that the conditions and feelings that brought on these demonstrations still exist and that rights of private property owners on the one hand and demonstrators on the other largely depend at this time on whether state trespass laws can constitutionally be applied under these circumstances. Since this question is, as we have pointed out, squarely presented in this very case and is involved in other cases pending here and others bound to come, we think it is wholly unfair to demonstrators and property owners alike as well as against the public interest not to decide it now. Since Marbury v. Madison, 1 Cranch 137 (1803), it has been this Court's recognized responsibility and duty to decide constitutional questions properly and necessarily before it. That case and others have stressed the duty of judges to act with the greatest caution before frustrating legislation by striking it down as unconstitutional. We should feel constrained to decide this question even if we thought the state law invalid. In this case, however, we believe that the state law is a valid exercise of state legislative power, that the question is properly before us, and that the national interest imperatively calls for an authoritative decision of the question by this Court. Under these circumstances we think that it would be an unjustified abdication of our duty to leave the question undiscussed. This we are not willing to do. So we proceed to state our views on the merits of the constitutional challenges to the Maryland law.
Although the question was neither raised nor decided in the courts below, petitioners contend that the Maryland statute is void for vagueness under the Due Process Clause of the Fourteenth Amendment because its language gave no fair warning that "sit-ins" staged over a restaurant owner's protest were prohibited by the statute. [378 U.S. 226, 324] The challenged statutory language makes it an offense for any person to "enter upon or cross over the land, premises or private property of any person or persons in this State after having been duly notified by the owner or his agent not to do so . . . ." Petitioners say that this language plainly means that an entry upon another's property is an offense only if the owner's notice has been given before the intruder is physically on the property; that the notice to petitioners that they were not wanted was given only after they had stepped from the street into the restaurant; and that the statute as applied to them was void either because (1) there was no evidence to support the charge of entry after notice not to do so, or because (2) the statute failed to warn that it could be violated by remaining on property after having been told to leave. As to (1), in view of the evidence and petitioners' statements at the trial it is hard to take seriously a contention that petitioners were not fully aware, before they ever entered the restaurant, that it was the restaurant owner's firmly established policy and practice not to serve Negroes. The whole purpose of the "sit-in" was to protest that policy. (2) Be that as it may, the Court of Appeals of Maryland held that "the statutory references to `entry upon or crossing over,' cover the case of remaining upon land after notice to leave," and the trial court found, with very strong evidentiary support, that after unequivocal notice to petitioners that they would not be seated or served they "persisted in their demands and, brushing by the hostess, took seats at various tables on the main floor and at the counter in the basement." We are unable to say that holding this conduct barred by the Maryland statute was an unreasonable interpretation of the statute or one which could have deceived or even surprised petitioners or others who [378 U.S. 226, 325] wanted to understand and obey it. It would certainly be stretching the rule against ambiguous statutes very far indeed to hold that the statutory language misled these petitioners as to the Act's meaning, in the face of evidence showing a prior series of demonstrations by Negroes, including some of petitioners, and in view of the fact that the group which included petitioners came prepared to picket Hooper and actually courted arrest, the better to protest his refusal to serve colored people.
We reject the contention that the statute as construed is void for vagueness. In doing so, we do not overlook or disregard the view expressed in other cases that statutes which, in regulating conduct, may indirectly touch the areas of freedom of expression should be construed narrowly where necessary to protect that freedom. 8 And we do not doubt that one purpose of these "sit-ins" was to express a vigorous protest against Hooper's policy of not serving Negroes. 9 But it is wholly clear that the Maryland statute here is directed not against what petitioners said but against what they did - remaining on the premises of another after having been warned to leave, conduct which States have traditionally prohibited in this country. 10 And none of our prior cases has held that a person's right to freedom of expression carries with it a right to force a private property owner to furnish his property as a platform to criticize the property owner's use of that property. Cf. Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949). We believe that the statute as construed and applied is not void for vagueness. [378 U.S. 226, 326]
Section 1 of the Fourteenth Amendment provides in part:
Petitioners, but not the Solicitor General, contend that their conviction for trespass under the state statute was by itself the kind of discriminatory state action forbidden by the Fourteenth Amendment. This contention, on its face, has plausibility when considered along with general statements to the effect that under the Amendment forbidden "state action" may be that of the Judicial as well as of the Legislative or Executive Branch of Government. But a mechanical application of the Fourteenth Amendment to this case cannot survive analysis. The Amendment does not forbid a State to prosecute for crimes committed against a person or his property, however prejudiced or narrow the victim's views may be. Nor can whatever prejudice and bigotry the victim of a crime may have be automatically attributed to the State that prosecutes. Such a doctrine would not only be based on a fiction; it would also severely handicap a State's efforts to maintain a peaceful and orderly society. Our society has put its trust in a system of criminal laws to punish lawless conduct. To avert personal feuds and violent brawls it has led its people to believe and expect that wrongs against them will be vindicated in the courts. Instead of attempting to take the law into their own hands, people have been taught to call for police protection to protect their rights wherever possible. 15 It would [378 U.S. 226, 328] betray our whole plan for a tranquil and orderly society to say that a citizen, because of his personal prejudices, habits, attitudes, or beliefs, is cast outside the law's protection and cannot call for the aid of officers sworn to uphold the law and preserve the peace. The worst citizen no less than the best is entitled to equal protection of the laws of his State and of his Nation. None of our past cases justifies reading the Fourteenth Amendment in a way that might well penalize citizens who are law-abiding enough to call upon the law and its officers for protection instead of using their own physical strength or dangerous weapons to preserve their rights.
In contending that the State's prosecution of petitioners for trespass is state action forbidden by the Fourteenth Amendment, petitioners rely chiefly on Shelley v. Kraemer, supra. That reliance is misplaced. Shelley held that the Fourteenth Amendment was violated by a State's enforcement of restrictive covenants providing that certain pieces of real estate should not be used or occupied by Negroes, Orientals, or any other non-Caucasians, either as owners or tenants, and that in case of use or occupancy by such proscribed classes, the title of any person so using or occupying it should be divested. Many briefs were filed in that case by the parties and by amici curiae. To support the holding that state [378 U.S. 226, 329] enforcement of the agreements constituted prohibited state action even though the agreements were made by private persons to whom, if they act alone, the Amendment does not apply, two chief grounds were urged: (1) This type of agreement constituted a restraint on alienation of property, sometimes in perpetuity, which, if valid, was in reality the equivalent of and had the effect of state and municipal zoning laws, accomplishing the same kind of racial discrimination as if the State had passed a statute instead of leaving this objective to be accomplished by a system of private contracts, enforced by the State. See Marsh v. Alabama, 326 U.S. 501 (1946); Terry v. Adams, 345 U.S. 461 (1953); cf. Yick Wo v. Hopkins, 118 U.S. 356 (1886); Nashville, C. & St. L. R. Co. v. Browning, 310 U.S. 362 (1940). 16 (2) Nearly all the briefs in Shelley which asked invalidation of the restrictive covenants iterated and reiterated that judicial enforcement of this system of covenants was forbidden state action because the right of a citizen to own, use, enjoy, occupy, and dispose of property is a federal right protected by the Civil Rights Acts of 1866 and 1870, validly passed pursuant to congressional power authorized by section 5 of the Fourteenth Amendment. 17 This [378 U.S. 226, 330] argument was buttressed by citation of many cases, some of which are referred to in this Court's opinion in Buchanan v. Warley, 245 U.S. 60 (1917). In that case this Court, acting under the Fourteenth Amendment and the Civil Rights Acts of 1866 and 1870, struck down a city ordinance which zoned property on the basis of race, stating, 245 U.S., at 81 , "The right which the ordinance annulled was the civil right of a white man to dispose of his property if he saw fit to do so to a person of color and of a colored person to make such disposition to a white person." Buchanan v. Warley was heavily relied on by this Court in Shelley v. Kraemer, supra, where this statement from Buchanan was quoted: "The Fourteenth Amendment and these statutes [of 1866 and 1870] enacted in furtherance of its purpose operate to qualify and entitle a colored man to acquire property without state legislation discriminating against him solely because of color." 334 U.S., at 11 -12. And the Court in Shelley went on to cite with approval two later decisions of this Court which, relying on Buchanan v. Warley, had invalidated other city ordinances. 18
It seems pretty clear that the reason judicial enforcement of the restrictive covenants in Shelley was deemed state action was not merely the fact that a state court had acted, but rather that it had acted "to deny to petitioners, on the grounds of race or color, the enjoyment of property rights in premises which petitioners are willing and financially able to acquire and which the grantors are willing to sell." 334 U.S., at 19 . In other words, this Court held that state enforcement of the covenants had the effect of denying to the parties their federally guaranteed right to own, occupy, enjoy, and use their property without regard to race or color. Thus, the line of cases from Buchanan through Shelley establishes these [378 U.S. 226, 331] propositions: (1) When an owner of property is willing to sell and a would-be purchaser is willing to buy, then the Civil Rights Act of 1866, which gives all persons the same right to "inherit, purchase, lease, sell, hold, and convey" property, prohibits a State, whether through its legislature, executive, or judiciary, from preventing the sale on the grounds of the race or color of one of the parties. Shelley v. Kraemer, supra, 334 U.S., at 19 . (2) Once a person has become a property owner, then he acquires all the rights that go with ownership: "the free use, enjoyment, and disposal of a person's acquisitions without control or diminution save by the law of the land." Buchanan v. Warley, supra, 245 U.S., at 74 . This means that the property owner may, in the absence of a valid statute forbidding it, sell his property to whom he pleases and admit to that property whom he will; so long as both parties are willing parties, then the principles stated in Buchanan and Shelley protect this right. But equally, when one party is unwilling, as when the property owner chooses not to sell to a particular person or not to admit that person, then, as this Court emphasized in Buchanan, he is entitled to rely on the guarantee of due process of law, that is, "law of the land," to protect his free use and enjoyment of property and to know that only by valid legislation, passed pursuant to some constitutional grant of power, can anyone disturb this free use. But petitioners here would have us hold that, despite the absence of any valid statute restricting the use of his property, the owner of Hooper's restaurant in Baltimore must not be accorded the same federally guaranteed right to occupy, enjoy, and use property given to the parties in Buchanan and Shelley; instead, petitioners would have us say that Hooper's federal right must be cut down and he must be compelled - though no statute said he must - to allow people to force their way into his restaurant and remain there over his protest. We cannot subscribe to [378 U.S. 226, 332] such a mutilating, one-sided interpretation of federal guarantees the very heart of which is equal treatment under law to all. We must never forget that the Fourteenth Amendment protects "life, liberty, or property" of all people generally, not just some people's "life," some people's "liberty," and some kinds of "property."
In concluding that mere judicial enforcement of the trespass law is not sufficient to impute to Maryland Hooper's refusal to serve Negroes, we are in accord with the Solicitor General's views as we understand them. He takes it for granted
Neither the parties nor the Solicitor General, at least with respect to Maryland, has been able to find the present existence of any state law or local ordinance, any state court or administrative ruling, or any other official state conduct which could possibly have had any coercive influence on Hooper's racial practices. Yet despite a complete absence of any sort of proof or even respectable [378 U.S. 226, 334] speculation that Maryland in any way instigated or encouraged Hooper's refusal to serve Negroes, it is argued at length that Hooper's practice should be classified as "state action." This contention rests on a long narrative of historical events, both before and since the Civil War, to show that in Maryland, and indeed in the whole South, state laws and state actions have been a part of a pattern of racial segregation in the conduct of business, social, religious, and other activities. This pattern of segregation hardly needs historical references to prove it. The argument is made that the trespass conviction should be labeled "state action" because the "momentum" of Maryland's "past legislation" is still substantial in the realm of public accommodations. To that extent, the Solicitor General argues, "a State which has drawn a color line may not suddenly assert that it is color blind." We cannot accept such an ex post facto argument to hold the application here of Maryland's trespass law unconstitutional. Nor can we appreciate the fairness or justice of holding the present generation of Marylanders responsible for what their ancestors did in other days 21 - even if we had the right to substitute our own ideas of what the Fourteenth Amendment ought to be for what it was written and adopted to achieve.
There is another objection to accepting this argument. If it were accepted, we would have one Fourteenth Amendment for the South and quite a different and more lenient one for the other parts of the country. Present "state action" in this area of constitutional rights would [378 U.S. 226, 335] be governed by past history in the South - by present conduct in the North and West. Our Constitution was not written to be read that way, and we will not do it.
Our Brother GOLDBERG in his opinion argues that the Fourteenth Amendment, of its own force and without the need of congressional legislation, prohibits privately owned restaurants from discriminating on account of color or race. His argument runs something like this: (1) Congress understood the "Anglo-American" common law, as it then existed in the several States, to prohibit owners of inns and other establishments open to the public from discriminating on account of race; (2) in passing the Civil Rights Act of 1866 and other civil rights legislation, Congress meant access to such establishments to be among the "civil rights" protected; (3) finally, those who framed and passed the Fourteenth Amendment intended it, of its own force, to assure persons of all races equal access to privately owned inns and other accommodations. In making this argument, the opinion refers us to three state supreme court cases and to congressional debates on various post-Civil War civil rights bills. However, not only does the very material cited furnish scant, and often contradictory, support for the first two propositions (about the common law and the Reconstruction era statutes), but, even more important, the material furnishes absolutely none for the third proposition, which is the issue in this case.
In the first place, there was considerable doubt and argument concerning what the common law in the 1860's required even of carriers and innkeepers and still more concerning what it required of owners of other establishments. For example, in Senate debates in 1864 on a proposal to amend the charter of the street railway company in the District of Columbia to prohibit it from excluding [378 U.S. 226, 336] any person from its cars on account of color - a debate cited in MR. JUSTICE GOLDBERG'S opinion - one Senator thought that the common law would give a remedy to any Negro excluded from a street car, 22 while another argued that "it was universally conceded that railroad companies, steamboat proprietors, coach lines, had the right to make this regulation" requiring Negroes to ride in separate cars. 23 Senator Sumner of Massachusetts, one of the chief proponents of legislation of this type, admitted that there was "doubt" both as to what the street railway's existing charter required and as to what the common law required; therefore he proposed that, since the common law had "fallen into disuse" or "become disputable," Congress should act: "[L]et the rights of colored persons be placed under the protection of positive statute . . . ." 24
Second, it is not at all clear that in the statutes relied on - the Civil Rights Act of 1866 and the Supplementary Freedmen's Bureau Act - Congress meant for those statutes to guarantee Negroes access to establishments [378 U.S. 226, 337] otherwise open to the general public. 25 For example, in the House debates on the Civil Rights bill of 1866 cited, not one of the speakers mentioned privately owned accommodations. 26 Neither the text of the bill, 27 [378 U.S. 226, 338] nor, for example, the enumeration by a leading supporter of the bill of what "civil rights" the bill would protect, 28 even mentioned inns or other such facilities. Hence we are pointed to nothing in the legislative history which gives rise to an inference that the proponents of the Civil Rights Act of 1866 meant to include as a "civil right" a right to demand service at a privately owned restaurant or other privately owned establishment. And, if the 1866 Act did impose a statutory duty on innkeepers and others, then it is strange indeed that Senator Sumner in 1872 thought that an Act of Congress was necessary to require hotels, carriers, theatres, and other places to receive all races, 29 and even more strange that Congress felt obliged in 1875 to pass the Civil Rights Act of that year explicitly prohibiting discrimination by inns, conveyances, theatres, and other places of public amusement. 30
Finally, and controlling here, there is nothing whatever in the material cited to support the proposition that the Fourteenth Amendment, without congressional legislation, prohibits owners of restaurants and other places to refuse service to Negroes. We are cited, only in passing, to general statements made in the House of Representatives to the effect that the Fourteenth Amendment was meant to incorporate the "principles" of the Civil Rights Act of 1866. 31 Whether "principles" are the same thing as "provisions," we are not told. But we have noted the serious doubt that the Civil Rights Act of 1866 even dealt with access to privately owned facilities. And it is revealing that in not one of the passages cited from the debates on the Fourteenth Amendment did any speaker suggest that the Amendment was designed, [378 U.S. 226, 339] of itself, to assure all races equal treatment at inns and other privately owned establishments.
Apart from the one passing reference just mentioned above to the debates on the Fourteenth Amendment, a reference which we have shown had no relevance whatever to whom restaurants should serve, every one of the passages cited deals entirely with proposed legislation - not with the Amendment. 32 It should be obvious that what may have been proposed in connection with passage of one statute or another is altogether irrelevant to the question of what the Fourteenth Amendment does in the absence of legislation. It is interesting to note that in 1872, some years after the passage of the Fourteenth Amendment, Senator Sumner, always an indefatigable proponent of statutes of this kind, proposed in a debate to which we are cited a bill to give all citizens, regardless of color, equal enjoyment of carriers, hotels, theatres, and certain other places. He submitted that, as to hotels and carriers (but not as to theatres and places of amusement), the bill "simply reenforce[d]" the common law; 33 it is [378 U.S. 226, 340] significant that he did not argue that the bill would enforce a right already protected by the Fourteenth Amendment itself - the stronger argument, had it been available to him. Similarly, in an 1874 debate on a bill to give all citizens, regardless of color, equal enjoyment of inns, public conveyances, theatres, places of public amusement, common schools, and cemeteries (a debate also cited), Senator Pratt argued that the bill gave the same rights as the common law but would be a more effective remedy. 34 Again, it is significant that, like Sumner in the 1872 debates, Pratt suggested as precedent for the bill only his belief that the common law required equal treatment; he never intimated that the Fourteenth Amendment laid down such a requirement.
We have confined ourselves entirely to those debates cited in Brother GOLDBERG'S opinion the better to show how, even on its own evidence, the opinion's argument that the Fourteenth Amendment without more prohibits discrimination by restaurants and other such places rests on a wholly inadequate historical foundation. When read and analyzed, the argument is shown to rest entirely on what speakers are said to have believed bills and statutes of the time were meant to do. Such proof fails entirely when the question is, not what statutes did, but rather what the Constitution does. Nor are the three state cases 35 relied on any better evidence, for all three [378 U.S. 226, 341] dealt with state antidiscrimination statutes; not one purported to interpret the Fourteenth Amendment. 36 And, if we are to speak of cases decided at that time, we should recall that this Court, composed of Justices appointed by Presidents Lincoln, Grant, Hayes, Garfield, and Arthur, held in a series of constitutional interpretations beginning with the Slaughter-House Cases, 16 Wall. 36 (1873), that the Amendment of itself was directed at state action only and that it did not displace the power of the state and federal legislative bodies to regulate the affairs of privately owned businesses. 37
We are admonished that in deciding this case we should remember that "it is a constitution we are expounding." 38 [378 U.S. 226, 342] We conclude as we do because we remember that it is a Constitution and that it is our duty "to bow with respectful submission to its provisions." 39 And in recalling that it is a Constitution "intended to endure for ages to come," 40 we also remember that the Founders wisely provided the means for that endurance: changes in the Constitution, when thought necessary, are to be proposed by Congress or conventions and ratified by the States. The Founders gave no such amending power to this Court. Cf. Ex parte Virginia, 100 U.S. 339, 345 -346 (1880). Our duty is simply to interpret the Constitution, and in doing so the test of constitutionality is not whether a law is offensive to our conscience or to the "good old common law," 41 but whether it is offensive to the Constitution. Confining ourselves to our constitutional duty to construe, not to rewrite or amend, the Constitution, we believe that Section 1 of the Fourteenth Amendment does not bar Maryland from enforcing its trespass laws so long as it does so with impartiality.
This Court has done much in carrying out its solemn duty to protect people from unlawful discrimination. And it will, of course, continue to carry out this duty in the future as it has in the past. 42 But the Fourteenth [378 U.S. 226, 343] Amendment of itself does not compel either a black man or a white man running his own private business to trade with anyone else against his will. We do not believe that Section 1 of the Fourteenth Amendment was written or designed to interfere with a storekeeper's right to choose his customers or with a property owner's right to choose his social or business associates, so long as he does not run counter to valid state 43 or federal regulation. The case before us does not involve the power of the Congress to pass a law compelling privately owned business to refrain from discrimination on the basis of race and to trade with all if they trade with any. We express no views as to the power of Congress, acting under one or another provision of the Constitution, to prevent racial discrimination in the operation of privately owned businesses, nor upon any particular form of legislation to that end. Our sole conclusion is that Section 1 of the Fourteenth Amendment, standing alone, does not prohibit privately owned restaurants from choosing their own customers. It does not destroy what has until very recently been universally recognized in this country as the unchallenged right of a man who owns a business to run the business in his own way so long as some valid regulatory statute does not tell him to do otherwise. 44 [378 U.S. 226, 344]
Petitioners, but not the Solicitor General, contend that their convictions for trespass deny them the right of freedom of expression guaranteed by the Constitution. They argue that their
A great purpose of freedom of speech and press is to provide a forum for settlement of acrimonious disputes peaceably, without resort to intimidation, force, or violence. The experience of ages points to the inexorable fact that people are frequently stirred to violence when property which the law recognizes as theirs is forcibly invaded or occupied by others. Trespass laws are born of this experience. They have been, and doubtless still are, important features of any government dedicated, as this country is, to a rule of law. Whatever power it may allow the States or grant to the Congress to regulate the use of private property, the Constitution does not confer upon any group the right to substitute rule by force for rule by law. Force leads to violence, violence to mob conflicts, and these to rule by the strongest groups with control of the most deadly weapons. Our Constitution, noble work of wise men, was designed - all of it - to chart a quite different course: to "establish Justice, insure domestic Tranquility . . . and secure the Blessings of Liberty to ourselves and our Posterity." At times the rule of law seems too slow to some for the settlement of their grievances. But it is the plan our Nation has chosen to preserve both "Liberty" and equality for all. On that plan we have put our trust and staked our future. This constitutional rule of law has served us well. Maryland's trespass law does not depart from it. Nor shall we.
We would affirm.
[ Footnote 1 ] "Any person or persons who shall enter upon or cross over the land, premises or private property of any person or persons in this State after having been duly notified by the owner or his agent not to do so shall be deemed guilty of a misdemeanor . . . ." Md. Code, Art. 27, 577.
[ Footnote 2 ] Mr. Hooper testified this as to his reasons for adopting his policy: "I set at the table with him and two other people and reasoned and talked to him why my policy was not yet one of integration and told him that I had two hundred employees and half of them were colored. I thought as much of them as I did the white employees. I invited them back in my kitchen if they'd like to go back and talk to them. I wanted to prove to them it wasn't my policy, my personal prejudice, we were not, that I had valuable colored employees and I thought just as much of them. I tried to reason with these leaders, told them that as long as my customers were deciding who they wanted to eat with, I'm at the mercy of my customers. I'm trying to do what they want. If they fail to come in, these people are not paying my expenses, and my bills. They didn't want to go back and talk to my colored employees because every one of them are in sympathy with me and that is we're in sympathy with what their objectives are, with what they are trying to abolish . . . ."
[ Footnote 3 ] 227 Md. 302, 176 A. 2d 771 (1962).
[ Footnote 4 ] 374 U.S. 804, 805 (1963). Probable jurisdiction was noted in Robinson v. Florida, 374 U.S. 803 (1963), rev'd, ante, p. 153. Certiorari had already been granted in Griffin v. Maryland, 370 U.S. 935 (1962), rev'd, ante, p. 130.
[ Footnote 5 ] Ordinance No. 1249, June 8, 1962, adding 10A to Art. 14A, Baltimore City Code (1950 ed.).
[ Footnote 6 ] Md. Acts 1963, c. 227, Art. 49B Md. Code 11 (enacted March 29, 1963, effective June 1, 1963). A later accommodations law, of statewide coverage, was enacted, Md. Acts 1964, Sp. Sess., c. 29 1, but will not take effect unless approved by referendum.
[ Footnote 7 ] Hamm v. City of Rock Hill, 377 U.S. 988 ; Lupper v. Arkansas, 377 U.S. 989 . The same question was presented but is not decided in seven other cases which the Court today disposes of in various ways. See Drews v. Maryland, post, p. 587; Williams v. North Carolina, post, p. 548; Fox v. North Carolina, post, p. 587; Mitchell v. City of Charleston, post, p. 551; Ford v. Tennessee, 377 U.S. 994 ; Green v. Virginia, post, p. 550; Harris v. Virginia, post, p. 552.
[ Footnote 11 ] E. g., 5: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."
[ Footnote 15 ] The use in this country of trespass laws, both civil and criminal, to allow people to substitute the processes of the law for force and [378 U.S. 226, 328] violence has an ancient origin in England. Land law was once bound up with the notion of "seisin," a term connoting "peace and quiet." 2 Pollock and Maitland, The History of English Law Before the Time of Edward I (2d ed. 1909), 29, 30. As Coke put it, "he who is in possession may sit down in rest and quiet . . . ." 6 Co. Rep. 57b. To vindicate this right to undisturbed use and enjoyment of one's property, the law of trespass came into being. The leading historians of the early English law have observed the constant interplay between "our law of possession and trespass" and have concluded that since "to allow men to make forcible entries on land . . . is to invite violence," the trespass laws' protection of possession "is a prohibition of self-help in the interest of public order." 2 Pollock and Maitland, supra, at 31, 41.
[ Footnote 16 ] On this subject the Solicitor General in his brief says: "The series of covenants becomes in effect a local zoning ordinance binding those in the area subject to the restriction without their consent. Cf. Buchanan v. Warley, 245 U.S. 60 . Where the State has delegated to private persons a power so similar to law-making authority, its exercise may fairly be held subject to constitutional restrictions."
[ Footnote 17 ] 42 U.S.C. 1982, deriving from 14 Stat. 27, 1 (1866), provides: "All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property." 42 U.S.C. 1981, deriving from 16 Stat. 144, 16 (1870), provides: "All persons within the jurisdiction of the United States shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens . . . ." The constitutionality of these statutes was recognized in Virginia v. Rives, 100 U.S. 313, 317 -318 (1880), and in Buchanan v. Warley, 245 U.S. 60, 79 -80 (1917).
[ Footnote 21 ] In fact, as pointed out in Part I of this opinion, Maryland has recently passed a law prohibiting racial discrimination in restaurants in Baltimore and some other parts of the State, and Baltimore has enacted a similar ordinance. Still another Maryland antidiscrimination law, of statewide application, has been enacted but is subject to referendum. See note 6, supra.
[ Footnote 22 ] Cong. Globe, 38th Cong., 1st Sess., 1159 (1864) (Senator Morrill).
[ Footnote 23 ] Id., at 1157-1158 (Senator Saulsbury).
[ Footnote 24 ] Id., at 1158. In response to a question put by Senator Carlile of Virginia, Sumner stated that it had taken a statute to assure Negroes equal treatment in Massachusetts: "That whole question, after much discussion in Massachusetts, has been settled by Legislation, and the rights of every colored person are placed on an equality with those of white persons. They have the same right with white persons to ride in every public conveyance in the Commonwealth. It was done by positive legislation twenty-one years ago." Ibid. (Emphasis supplied.) A few minutes later, Senator Davis of Kentucky asked Sumner directly if it was not true that what treatment was extended to colored people by "public hotels" incorporated by the Commonwealth of Massachusetts was left to "the judgment and discretion of the proprietors and managers of the hotels." Sumner, who had answered immediately preceding statements by Davis, left this one unchallenged. Id., at 1161.
[ Footnote 25 ] A number of the remarks quoted as having been made in relation to Negroes' access to privately owned accommodations in fact dealt with other questions altogether. For example, Senator Trumbull of Illinois is quoted, ante, p. 293, as having said that the Negro should have the right "to go where he pleases." It is implied that such remarks cast light on the question of access to privately owned accommodations. In fact, the statement, made in the course of a debate on a bill (S. 60) to enlarge the powers of the Freedmen's Bureau, related solely to Black Laws that had been enacted in some of the Southern States. Trumbull attacked the "slave codes" which "prevented the colored man going from home," and he urged that Congress nullify all laws which would not permit the colored man "to go where he pleases." Cong. Globe, 39th Cong., 1st Sess., 322 (1866). Similarly, in another debate, on a bill (S. 9) for the protection of freedmen, Senator Wilson of Massachusetts had just told the Senate about such laws as that of Mississippi which provided that any freedman who quit his job "without good cause" during the term of his employment should, upon affidavit of the employer, be arrested and carried back to the employer. Speaking of such relics of slavery, Wilson said that freedmen were "as free as I am, to work when they please, to play when they please, to go where they please . . . ." Id., at 41. Senator Trumbull then joined the debate, wondering if S. 9 went far enough and saying that to prevent States "from enslaving, under any pretense," the freedmen, he might introduce his own bill to ensure the right of freedmen to "go and come when they please." Id., at 43. It was to the Black Laws - and not anything remotely to do with accommodations - that Wilson, Trumbull, and others addressed their statements. Moreover, in the debate on S. 9, Senator Trumbull expressly referred to the Thirteenth Amendment as the constitutional basis both for the pending bill and for his own bill, ibid., showing that the Senate's concern was with state laws restricting the movement of, and in effect re-enslaving, colored people.
[ Footnote 26 ] Cong. Globe, 39th Cong., 1st Sess., 474-476 (1866) (Trumbull of Illinois), 599 (Trumbull), 606 (Trumbull), 1117 (Wilson of Iowa), 1151 (Thayer of Pennsylvania), 1154 (Thayer), 1157 (Thornton of Minnesota), 1159 (Windom of Minnesota).
[ Footnote 27 ] See id., at 211-212.
[ Footnote 28 ] Id., at 1151 (Thayer).
[ Footnote 29 ] Cong. Globe, 42d Cong., 2d Sess., 381-383 (1872).
[ Footnote 30 ] 18 Stat. 335.
[ Footnote 31 ] Cong. Globe, 39th Cong., 1st Sess., 2459, 2462, 2465, 2467, 2538 (1866).
[ Footnote 32 ] Cong. Globe, 38th Cong., 1st Sess., 839 (1864) (debate on bill to repeal law prohibiting colored persons from carrying the mail); Cong. Globe, 38th Cong., 1st Sess., 1156-1157 (1864) (debate on amending the charter of the Metropolitan Railroad Co.); Cong. Globe, 39th Cong., 1st Sess., 322, 541, 916, 936 (1866) (debate on bill to amend the Freedmen's Bureau Act, S. 60); Cong. Globe, 39th Cong., 1st Sess., 474-476, 599, 606, 1117-1118, 1151, 1154, 1157, 1159, 1263 (1866) (debate on the Civil Rights Act of 1866, S. 61); Cong. Globe, 39th Cong., 1st Sess., 41, 111 (1866) (debate on bill for the protection of freedmen from Black Codes, S. 9); Cong. Globe, 42d Cong., 2d Sess., 381-383 (1872) (debate on Sumner's amendment to bill removing political and civil disabilities on ex-Confederates, H. R. 380); 2 Cong. Rec. 4081-4082 (1874) (debate on bill to give all citizens equal enjoyment of inns, etc., S. 1). One cited passage, Cong. Globe, 39th Cong., 1st Sess., 684 (1866), consists of remarks made in debate on a proposed constitutional amendment having to do with apportionment of representation, H. R. 51.
[ Footnote 33 ] Cong. Globe, 42d Cong., 2d Sess., 383 (1872).
[ Footnote 34 ] 2 Cong. Rec. 4081 (1874).
[ Footnote 35 ] Donnell v. State, 48 Miss. 661 (1873); Coger v. North West. Packet Co., 37 Iowa 145 (1873); Ferguson v. Gies, 82 Mich. 358, 46 N. W. 718 (1890). The Mississippi case does contain this observation pertinent to a court's duty to confine itself to deciding cases and interpreting constitutions and statutes and to leave the legislating to legislatures: "Events of such vast magnitude and influence now and hereafter, have gone into history within the last ten years, that the public mind is not yet quite prepared to consider them calmly and dispas[s]ionately. To the judiciary, which ought at all times to be calm, deliberate [378 U.S. 226, 341] and firm, especially so when the public thought and sentiment are at all excited beyond the normal tone, is committed the high trust of declaring what are the rules of conduct and propriety prescribed by the supreme authority, and what are the rights of individuals under them. As to the policy of legislation, the judiciary have nothing to do. That is wisely left with the law-making department of the government." 48 Miss., at 675.
[ Footnote 36 ] The Attorney General of Mississippi is quoted as having argued in Donnell v. State, 48 Miss. 661 (1873), that the Mississippi Legislature had "sought, by this [antidiscrimination] act, to render any interference by congress unnecessary." Ante, p. 307, n. 25. This very statement shows that the Mississippi Attorney General thought in 1873, as we believe today, that the Fourteenth Amendment did not of itself guarantee access to privately owned facilities and that it took legislation, such as that of Mississippi, to guarantee such access.
[ Footnote 37 ] Brother GOLDBERG'S opinion in this case relies on Munn v. Illinois, 94 U.S. 113 (1877), which discussed the common-law rule that "when private property is devoted to a public use, it is subject to public regulation." Id., at 130. This statement in Munn related, of course, to the extent to which a legislature constitutionally can regulate private property. Munn therefore is not remotely relevant here, for in this case the problem is, not what legislatures can do, but rather what the Constitution itself does. And in fact this Court some years ago rejected the notion that a State must depend upon some rationalization such as "affected with a public interest" in order for legislatures to regulate private businesses. See Nebbia v. New York, 291 U.S. 502 (1934).
[ Footnote 38 ] McCulloch v. Maryland, 4 Wheat. 316, 407 (1819). (Emphasis in original.)
[ Footnote 39 ] Cohens v. Virginia, 6 Wheat. 264, 377 (1821).
[ Footnote 40 ] McCulloch v. Maryland, 4 Wheat. 316, 415 (1819).
[ Footnote 41 ] That the English common law was not thought altogether "good" in this country is suggested by the complaints of the Declaration of Independence, by the Virginia and Kentucky Resolutions, and by observations of Thomas Jefferson. The Jeffersonian Cyclopedia 163 (Foley ed. 1900).
[ Footnote 42 ] It is said that our holding "does not do justice" to a Constitution which is color blind and to this Court's decision in Brown v. Board of Education, 347 U.S. 483 (1954). Ante, pp. 287-288. We agree, of course, that the Fourteenth Amendment is "color blind," in the sense that it outlaws all state laws which discriminate merely on [378 U.S. 226, 343] account of color. This was the basis upon which the Court struck down state laws requiring school segregation in Brown v. Board of Education, supra. But there was no possible intimation in Brown or in any other of our past decisions that this Court would construe the Fourteenth Amendment as requiring restaurant owners to serve all races. Nor has there been any intimation that the Court should or would expand the Fourteenth Amendment because of a belief that it does not in our judgment go far enough.
[ Footnote 44 ] The opinion of our Brother GOLDBERG characterizes our argument as being that the Constitution "permits" Negroes to be denied access to restaurants on account of their color. We fear that this statement [378 U.S. 226, 344] might mislead some readers. Precisely put, our position is that the Constitution of itself does not prohibit discrimination by those who sell goods and services. There is of course a crucial difference between the argument - which we do make - that the Constitution itself does not prohibit private sellers of goods or services from choosing their own customers, and the argument - which we do not make - that the Constitution affirmatively creates a right to discriminate which neither state nor federal legislation could impair. [378 U.S. 226, 347]