XIIIth and XIVth[1] Amendments to prevent private persons from making the discriminations mentioned. Bradley, J., speaking for the court, said that clearly no power could be derived from the XIVth Amendment. That amendment provides that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." "This," he said, "does not authorize Congress to create a code of municipal law for the regulation of private rights; but to provide modes of redress against State laws, and the action of State officers, executive or judicial, when these are subversive of the fundamental rights specified in the agreement. . . . Such legislation must necessarily be predicated upon such supposed State laws or State proceedings, and be directed to the correction of their operation and effect." Speaking of the operation of the XIIIth Amendment, which abolished slavery, he said that this amendment, as distinguished from the XIVth, was " not a mere prohibition of State laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States." Therefore, neither an individual nor a State can impose slavery, or a badge of slavery, upon any one; but it cannot be said that the discriminations in the Civil Rights Act constitute either slavery or badges of slavery.
Thus it appears that the United States can do little to preserve the social equality of the negro from individual attack. Yet it should be remembered that Congress, in the exercise of some express power, may incidentally reach this matter. Under the power to regulate commerce, for instance, carriers may be required to afford equal accommodations to whites and blacks.[2] But aside from such instances it seems that, in general, no social discrimination whatever against the negro race, not amounting to slavery or a badge of slavery, if made by individuals, can constitutionally be reached by federal legislation.
Of course, such discrimination is often prohibited by the States themselves. Common carriers, innkeepers, and proprietors of
