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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.
The Civil Rights cases were a group of five cases in 1883 that were consolidated and presented to the Supreme Court, which ruled that the Civil Rights Act of 1875 was unconstitutional because under the 14th Amendment, the federal government did not have the right to regulate discriminatory acts carried out by individuals, rather than states. Justice Harlan dissented from the majority opinion because, as his wrote, their judgement was "too narrow and artificial."
Harlan believed that the Civil Rights Act was constitutional because the 13th Amendment invests Congress with the right to "regulate the entire body of the civil rights which citizens enjoy, or may enjoy, in the several states." Harlan believed that under the 13th Amendment, the federal government had the authority to protect African-Americans from infringements of their rights carried out by states or by individuals and corporations who yield authority under the state. Harlan stated that individuals and corporations such as railroads and inn keepers operated under the authority of the state. For example, railroads were public highways and inn keepers were public servants. Therefore, he believed that the Civil Rights Act protected African-American people from discriminatory acts carried out by individuals.
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