Duties to the public
Some more on the conceptual issues involved in ideas such as equality, equal treatment, civil rights, public accommodation, and so on. Some comments by a dissenting justice in the Civil Rights Cases decision of 1883, in which the court killed the Civil Rights Act of 1875, an act by which Congress attempted to elaborate on and enforce the Fourteenth Amendment – Section 1 of which turned the US world upside down:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.
Room for conceptual questions there, of course (even apart from the baffling fact that the late 19th century Supreme Court chose to define corporations as ‘persons’, contrary to the intent of Congress in passing the amendment and to the normal meaning of the word); what is meant by privileges or immunities? What is meant by equal protection? Not much, was the answer of the Court in 1883. But Justice John Marshall Harlan dissented.
Congress had intended [in the Fourteenth Amendment], Harlan noted, to wipe out all discrimination against blacks and ‘to secure and protect rights belonging to them as freemen and citizens; nothing more. He took aim at [Justice] Bradley’s formalistic distinction between ‘state action’ and private discrimination. ‘In every material sense applicable to the practical enforcement of the Fourteenth Amendment,’ he wrote, ‘railroad corporations, keepers of inns, and managers of places of public amusement are charged with duties to the public, and are amenable, in respect of their duties and functions, to governmental regulation.’ On that issue, Harlan relied on the common law principle that ‘when private property is devoted to a public use, it is subject to public regulation.’ [Irons, People’s History of the SC, p 214]
That’s one view, and on that court at that time it was a minority view; but it is a view. It’s a little unnerving to see Anglican archbishops siding with the court majority that killed off the Civil Rights Act and left blacks without redress against the most brutal kinds of treatment* until the Brown decision overturned Plessy in 1954. I wonder if they completely grasp the kind of thinking they’re messing with.
*read Worse Than Slavery for detail on this