epugnant to its fifth section, conferring upon
Congress power, by appropriate legislation, to enforce not merely the
provisions containing prohibitions upon the States, but all of the
provisions of the amendment, including the provisions, express and
implied, in the first clause of the first section of the article
granting citizenship." The prohibition of the State laws could have
been negatived by judicial interpretation without the Fourteenth
Amendment on the ground that they would have conflicted with the
Constitution.

The court said the Fourteenth Amendment was not intended to enact a
municipal code for the States. No one will gainsay this. This
Amendment, moreover, is not altogether for the benefit of the Negro.
It simply interferes with the local laws when they operate so as to
discriminate against persons or permit agents of the States to
discriminate against persons of any race on account of color or
previous condition of servitude. Of what benefit was it if it did not
do this? The constitutions of the several States had already secured
all persons against deprivation of life, liberty or property otherwise
than by due process of law, and in some form recognized the right of
all persons to the equal protection of the laws. If this be the
correct interpretation even, it does not follow that privileges which
have been granted by the nation, may not be protected by primary
legislation upon the part of Congress. Justice Harlan pointed out that
it is for Congress not the judiciary, to say that legislation is
appropriate, for that would be sheer usurpation of the functions of a
coordinate department. Why should these rules of interpretation be
abandoned in the case of maintaining the rights of the Negro
guaranteed by the Constitution?

The Civil Rights Act of 1875 could have been maintained on the ground
that it regulated interstate passenger traffic, as one of the cases,
_Robinson and Wife_ v. _Memphis and Charleston Railroad Company_,
showed that Robinson a citizen of Mississippi had purchased a ticket
entitling him to be carried from Grand Junction, Tennessee, to
Lynchburg, Virginia. This case substantially presented the question of
interstate commerce but the court reserved the question whether
Congress in the exercise of its power to regulate commerce among the
several States, might or might not pass a law regulating rights in
public conveyances passing from one State to another. The court
undertook to hide be