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Justice Harlan dissented in the Civil Rights Cases because he believed that the 13th and 14th Amendments allowed laws like the Civil Rights Act of 1875. He argued that the private actions that discriminated against black people were not truly private. Instead, they affected the public interests of African Americans.
For example, Harlan discussed discrimination by railroads. He noted first of all that railroads are public things and the government therefore has the right to regulate them. He also noted that discrimination in such places affected African Americans’ right to travel. He said that the right to travel freely was a fundamental right and that taking it away was, in some ways, similar to enslaving African Americans.
Harlan also said that the Court was subverting the meaning of the 14th Amendment. He did not think that there was anything in that amendment to say that Congress could not prevent individuals from discriminating against blacks. Finally, he foresaw that the Court’s decision would create a special class of citizens (African Americans) who would in some ways be tyrannized by the other class. For these reasons, he held that the Civil Rights Act of 1875 was constitutional.
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