earn one's living in all legal ways and to make lawful contracts in
reference thereto is a vital point of freedom established by the
Constitution. Section 5508 had been upheld in _Ex Parte
Yarborough_,[74] and in the case of _Logan_ v. the _United States_[75]
the court referred to this section as having been upheld in _Ex Parte
Yarborough_. In _United States_ v. _Reese_, moreover,[76] Justice
Waite said in 1875, speaking for the court, "The rights and immunities
created by or dependent upon the Constitution of the United States can
be protected by Congress. The form and the manner of the protection
may be such as Congress in the legitimate exercise of its legislative
discretion shall provide. This may be varied to meet the necessities
of the particular right to be protected."

"The whole scope and effect of this series of decisions," continued
the court, "was that, while certain fundamental rights recognized and
declared but not granted or created, in some of the amendments to the
Constitution are thereby guaranteed only against violation or
abridgement by the United States, or by the States, as the case may
be, and cannot, therefore, be affirmatively enforced by Congress
against unlawful causes of individuals; yet that every right created
by, arising under, or dependent upon the Constitution of the United
States may be protected and enforced by Congress by such means and in
such manner as Congress in the exercise of the correlative duty of
protection, or of the legislative powers conferred upon it by the
Constitution, may in its discretion deem most eligible and best
adopted to attain the object." This doctrine was sustained also by the
decision in the case of _United States_ v. _Waddell_,[77] and _Motes_
v. _United States_.[78] Here it was emphatically stated that Congress
might pass any law necessary or proper for carrying out any power
conferred upon it by the Constitution.

The court here, however, evaded the real question as before, dodging
behind the doctrine that while a State or the United States could not
abridge the privileges and immunities of citizens, individuals or
groups of individuals may do so and Congress has no power to interfere
in such matters since these come within the police power of the State.
In other words, the government cannot discriminate against the Negro
itself, but it can establish agencies with power to do it. It is not
surprising that Justice Harlan dissented, feeling as he had on fo