Bell v. Maryland/Opinion of the Court

Petitioners, 12 Negro students, were convicted in a Maryland state court as a result of their participation in a 'sit-in' demonstration at Hooper's restaurant in the City of Baltimore in 1960. The convictions were based on a record showing in summary that a group of 15 to 20 Negro students, including petitioners, went to Hooper's restaurant to engage in what their counsel describes as a 'sit-in protest' because the restaurant would not serve Negroes. The 'hostess,' on orders of Mr. Hooper, the president of the corporation owning the restaurant, told them, 'solely on the basis of their color,' that they would not be served. Petitioners did not leave when requested to by the hostess and the manager; instead they went to tables, took seats, and refused to leave, insisting that they be served. On orders of Mr. Hooper the police were called, but they advised that a warrant ould be necessary before they could arrest petitioners. Mr. Hooper then went to the police station and swore out warrants, and petitioners were accordingly arrested.

The statute under which the convictions were obtained was the Maryland criminal trespass law, § 577 of Art. 27 of the Maryland Code, 1957 edition, under which it is a misdemeanor to 'enter upon or cross over the land, premises or private property of any person or persons in this State after having been duly notified by the owner or his agent not to do so.' The convictions were affirmed by the Maryland Court of Appeals, 227 Md. 302, 176 A.2d 771 (1962), and we granted certiorari. 374 U.S. 805, 83 S.Ct.1691, 10 L.Ed.2d 1030.

We do not reach the questions that have been argued under the Equal Protection and Due Process Clauses of the Fourteenth Amendment. It appears that a significant change has taken place in the applicable law of Maryland since these convictions were affirmed by the Court of Appeals. Under this Court's settled practice in such circumstances, the judgments must consequently be vacated and reversed and the case remanded so that the state court may consider the effect of the supervening change in state law.

Petitioners' convictions were affirmed by the Maryland Court of Appeals on January 9, 1962. Since that date, Maryland has enacted laws that abolish the crime of which petitioners were convicted. These laws accord petitioners a right to be served in Hooper's restaurant, and make unlawful conduct like that of Hooper's president and hostess in refusing them service because of their race. On June 8, 1962, the City of Baltimore enacted its Ordinance No. 1249, adding § 10A to Art. 14A of the Baltimore City Code (1950 ed.). The ordinance, which by its terms took effect from the date of its enactment, prohibits owners and operators of Baltimore places of public accommodation, including restaurants, from denying their services or facilities to any person because of his race. A similar 'public accommodations law,' applicable to Baltimore City and Baltimore County though not to some of the State's other counties, was adopted by the State Legislature on March 29, 1963. Art. 49B Md. Code § 11 (1963 Supp.). This statute went into effect on June 1, 1963, as provided by § 4 of the Act, Acts 1963, c. 227. The statute provides that:

'It is unlawful for an owner or operator of a place of public     accommodation or an agent or employee of said owner or      operator, because of the race, creed, color, or national      origin of any person, to refuse, with-hold from, or deny to      such person any of the accommodations, advantages, facilities      and privileges of such place of public accommodation. For the     purpose of this subtitle, a place of public accommodation      means any hotel, restaurant, inn, motel or an establishment      commonly known or recognized as regularly engaged in the      business of providing sleeping accommodations, or serving      food, or both, for a consideration, and which is open to the      general public *  * .'

It is clear from these enactments that petitioners' conduct in entering or crossing over the premises of Hooper's restaurant after being notified not to do so because of their race would not be a crime today; on the contrary, the law of Baltimore and of Maryland now vindicates their conduct and recognizes it as the exercise of a right, directi g the law's prohibition not at them but at the restaurant owner or manager who seeks to deny them service because of their race.

An examination of Maryland decisions indicates that under the common law of Maryland, the supervening enactment of these statutes abolishing the crime for which petitioners were convicted would cause the Maryland Court of Appeals at this time to reverse the convictions and order the indictments dismissed. For Maryland follows the universal common-law rule that when the legislature repeals a criminal statute or otherwise removes the State's condemnation from conduct that was formerly deemed criminal, this action requires the dismissal of a pending criminal proceeding charging such conduct. The rule applies to any such proceeding which, at the time of the supervening legislation, has not yet reached final disposition in the highest court authorized to review it. Thus, in Keller v. State, 12 Md. 322 (1858), the statute under which the appellant had been indicted and convicted was repealed by the legislature after the case had been argued on appeal in the Court of Appeals but before that court's decision, although the repeal was not brought to the notice of the court until after the judgment of affirmance had been announced. The appellant's subsequent motion to correct the judgment was granted, and the judgment was reversed. The court explained, id., at 325 327:

'It is well settled, that a party cannot be convicted, after     the law under which he may be prosecuted has been repealed,      although the offence may have been committed before the repeal. * *  * The same principle applies      where the law is repealed, or expires pending an appeal on a      writ of error from the judgment of an inferior court. * *  *      The judgment in a criminal cause cannot be considered as      final and conclusive to every intent, notwithstanding the      removal of the record to a superior court. If this were so,     there would be no use in taking the appeal or suing out a      writ of error. * *  * And so if the law be repealed, pending      the appeal or writ of error, the judgment will be reversed,      because the decision must be in accordance with the law at      the time of final judgment.'

The rule has since been reaffirmed by the Maryland court on a number of occasions. Beard v. State, 74 Md. 130, 135, 21 A. 700, 702 (1891); Smith v. State, 45 Md. 49 (1876); State v. Gambrill, 115 Md. 506, 513, 81 A. 10, 12 (1911); State v. Clifton, 177 Md. 572, 574, 10 A.2d 703, 704 (1940).

It is true that the present case is factually distinguishable, since here the legislative abolition of the crime for which petitioners were convicted occurred after rather than before the decision of the Maryland Court of Appeals. But that fact would seem irrelevant. F r the purpose of applying the rule of the Maryland common law, it appears that the only question is whether the legislature acts before the affirmance of the conviction becomes final. In the present case the judgment is not yet final, for it is on direct review in this Court. This would thus seem to be a case where, as in Keller, the change of law has occurred 'pending an appeal on a writ of error from the judgment of an inferior court,' and hence where the Maryland Court of Appeals upon remand from this Court would render its decision 'in accordance with the law at the time of final judgment.' It thus seems that the Maryland Court of Appeals would take account of the supervening enactment of the city and state public accommodations laws and, applying the principle that a statutory offense which has 'ceased to exist is no longer punishable at all,' Beard v. State, supra, 74 Md. 130, 135, 21 A. 700, 702 (1891), would now reverse petitioners' convictions and order their indictments dismissed.

The Maryland common law is not, however, the only Maryland law that is relevant to the question of the effect of the supervening enactments upon these convictions. Maryland has a general saving clause statute which in certain circumstances 'saves' state convictions from the common-law effect of supervening enactments. It is thus necessary to consider the impact of that clause upon the present situation. The clause, Art. 1 Md. Code § 3 (1957), reads as follows:

'The repeal, or the repeal and reenactment, or the revision,     amendment or consolidation of any statute, or of any section      or part of a section of any statute, civil or criminal, shall not have the effect to release,      extinguish, alter, modify or change, in whole or in part, any      penalty, forfeiture or liability, either civil or criminal,      which shall have been incurred under such statute, section or      part thereof, unless the repealing, repealing and      re-enacting, revising, amending or consolidating act shall      expressly so provide; and such statute, section or part      thereof, so repealed, repealed and re- enacted, revised,      amended or consolidated, shall be treated and held as still      remaining in force for the purpose of sustaining any and all      proper actions, suits, proceedings or prosecutions, civil or      criminal, for the enforcement of such penalty, forfeiture or      liability, as well as for the purpose of sustaining any      judgment, decree or order which can or may be rendered,      entered or made in such actions, suits, proceedings or      prosecutions imposing, inflicting or declaring such penalty,      forfeiture or liability.'

Upon examination of this clause and of the relevant state case law and policy considerations, we are far from persuaded that the Maryland Court of Appeals would hold the clause to be applicable to save these convictions. By its terms, the clause does not appear to be applicable at all to the present situation. It applies only to the 'repeal,' 'repeal and re-enactment,' 'revision,' 'amendment,' or 'consolidation' of any statute or part thereof. The effect wrought upon the criminal trespass statute by the supervening public accommodations laws would seem to be properly described by none of these terms. The only two that could even arguably apply are 'repeal' and 'amendment.' But neither the city nor the state public accommodations enactment gives the slightest indication that the legislature considered itself to be 'repealing' or 'amending' the trespass law. Neither enactment refers in any way to the trespass law, as is character-istically done when a prior statute is being repealed or amended. This fact alone raises a substantial possibility that the saving clause would be held inapplicable, for the clause might be narrowly construed-especially since it is in derogation of the common law and since this is a criminal case-as requiring that a 'repeal' or 'amendment' be designated as such in the supervening statute itself.

The absence of such terms from the public accommodations laws becomes more significant when it is recognized that the effect of these enactments upon the trespass statute was quite different from that of an 'amendment' or even a 'repeal' in the usual sense. These enactments do not-in the manner of an ordinary 'repeal,' even one that is substantive rather than only formal or technical-merely erase the criminal liability that had formerly attached to persons who entered or crossed over the premises of a restaurant after being notified not to because of their race; they go further and confer upon such persons an affirmative right to carry on such conduct, making it unlawful for the restaurant owner or proprietor to notify them to leave because of their race. Such a substitution of a right for a crime, and vice versa, is a possibly unique phenomenon in legislation; it thus might well be construed as falling outside the routine categories of 'amendment' and 'repeal.'

Cogent state policy considerations would seem to support such a view. The legislative policy embodied in the supervening enactments here would appear to be much more strongly opposed to that embodied in the old enactment than is usually true in the case of an 'amendment' or 'repeal.' It would consequently seem unlikely that the legislature intended the saving clause to apply in this situation, where the result of its application would be the conviction and punishment of persons whose 'crime' has been not only erased from the statute books but officially vindicated by the new enactments. A legislature that passed a public accommodations law making it unlawful to deny service on account of race probably did not desire that persons should still be prosecuted and punished for the 'crime' of seeking service from a place of public accommodations which denies it on account of race. Since the language of the saving clause raises no barrier to a ruling in accordance with these policy considerations, we should hesitate long indeed before concluding that the Maryland Court of Appeals would definitely hold the saving clause applicable to save these convictions.

Moreover, even if the word 'repeal' or 'amendment' were deemed to make the savi g clause prima facie applicable, that would not be the end of the matter. There would remain a substantial possibility that the public accommodations laws would be construed as falling within the clause's exception: 'unless the repealing * *  * act shall expressly so provide.' Not only do the policy considerations noted above support such an interpretation, but the operative language of the state public accommodations enactment affords a solid basis for a finding that it does 'expressly so provide' within the terms of the saving clause. Whereas most criminal statutes speak in the future tense-see, for example, the trespass statute here involved, Art. 27 Md. Code § 577: 'Any person or persons who shall enter upon or cross over * *  * '-the state enactment here speaks in the present tense, providing that '(i)t is unlawful for an owner or operator *  *  * .' In this very context, the Maryland Court of Appeals has given effect to the difference between the future and present tense. In Beard v. State, supra, 74 Md. 130, 21 A. 700, the court, in holding that a supervening statute did not implicitly repeal the former law and thus did not require dismissal of the defendant's conviction under that law, relied on the fact that the new statute used the word 'shall' rather than the word 'is.' From this the court concluded that 'The obvious intention of the legislature in passing it was not to interfere with past offences, but merely to fix a penalty for future ones.' 74 Md., at 133, 21 A., at 701. Conversely here, the use of the present instead of the more usual future tense may very possibly be held by the Court of Appeals, especially in view of the policy considerations involved, to constitute an 'express provision' by the legislature, within the terms of the saving clause, that it did intend its new enactment to apply to past as well as future conduct-that it did not intend the saving clause to be applied, in derogation of the common-law rule, so as to permit the continued prosecution and punishment of persons accused of a 'crime' which the legislature has now declared to be a right.

As a matter of Maryland law, then, the arguments supporting a conclusion that the saving clause would not apply to save these convictions seem quite substantial. It is not for us, however, to decide this question of Maryland law, or to reach a conclusion as to how the Maryland Court of Appeals would decide it. Such a course would be inconsistent with our tradition of deference to state courts on questions of state law. Now is it for us to ignore the supervening change in state law and proceed to decide the federal constitutional questions presented by this case. To do so would be to decide questions which, because of the possibility that the state court would now reverse the convictions, are not necessarily presented for decision. Such a course would be inconsistent with our constitutional inability to render advisory opinions, and with our consequent policy of refusing to decide a federal question in a case that might be controlled by a state ground of decision. See Murdock v. Memphis, 20 Wall. 590, 634-636, 22 L.Ed. 429. To avoid these pitfalls-to let issues of state law be decided by state courts and to preserve our policy of avoiding gratuitous decisions of federal questions-we have long followed a uniform practice where a supervening event raises a question of state law pertaining to a case pending on review here. That practice is to vacate and reverse the judgment and remand the case to the state court, so that it may reconsider it in the light of the supervening change in state law.

The rule was authoritatively stated and applied in Missouri ex rel. Wabash R. Co. v. Public Service Comm'n, 273 U.S. 126, 47 S.Ct. 311, 71 L.Ed. 575, a case where the supervening event was-as it is here-enactment of new state legislation asserted to change the law under which the case had been decided by the highest state court. Speaking for the Court, Mr. Justice Stone said:

'Ordinarily this court on writ of error to  state court      considers only federal questions and does not review      questions of state law. But where questions of state law     arising after the decision below are presented here, our      appellate powers are not thus restricted. Either because new     facts have supervened since the judgment below, or because of      a change in the law, this Court, in the exercise of its      appellate jurisdiction, may consider the state questions thus      arising and either decide them or remand the cause for      appropriate action by the state courts. The meaning and     effect of the state statute now in question are primarily for      the determination of the state court. While this court may     decide these questions, it is not obliged to do so, and, in      view of their nature, we deem it appropriate to refer the      determination to the state court. In order that the state     court may be free to consider the question and make proper      disposition of it, the judgment below should be set aside,      since a dismissal of this appeal might leave the judgment to      be enforced as rendered. The judgment is accordingly reversed     and the cause remanded for further proceedings.' (Citations      omitted.) 273 U.S., at 131, 47 S.Ct., at 313.

Similarly, in Patterson v. Alabama, 294 U.S. 600, 55 S.Ct. 575, 79 L.Ed. 1082, Mr. Chief Justice Hughes stated the rule as follows:

'We have frequently held that in the exercise of our     appellate jurisdiction we have power not only to correct      error in the judgment under review but to make such      disposition of the case as justice requires. And in     determining what justice does require, the Court is bound to      consider any change, either in fact or in law, which has supervened since the judgment was      entered. We may recognize such a change, which may affect the     result, by setting aside the judgment and remanding the case      so that the state court may be free to act. We have said that     to do this is not to review, in any proper sense of the term,      the decision of the state court upon a nonfederal question,      but only to deal appropriately with a matter arising since      its judgment and having a bearing upon the right disposition      of the case.' 294 U.S., at 607, 55 S.Ct., at 578.

For other cases applying the rule, see Gulf, C. & S.F.R. Co. v. Dennis, 224 U.S. 503, 505-507, 32 S.Ct. 542, 543, 56 L.Ed. 860; Dorchy v. Kansas, 264 U.S. 286, 289, 44 S.Ct. 323, 324, 68 L.Ed. 686; Ashcraft v. Tennessee, 322 U.S. 143, 155-156, 64 S.Ct. 921, 927, 88 L.Ed. 1192.

The question of Maryland law raised here by the supervening enactment of the city and state public accommodations laws clearly falls within the rule requiring us to vacate and reverse the judgment and remand the case to the Maryland Court of Appeals. Indeed, we have followed this course in other situations involving a state saving clause or similar provision, where it was considerably more probable than it is here that the State would desire its judgment to stand despite the supervening change of law. In Roth v. Delano, 338 U.S. 226, 70 S.Ct. 22, 94 L.Ed. 13, the Court vacated and remanded the judgment in light of the State's supervening repeal of the applicable statute despite the presence in the repealer of a saving clause which, unlike the one here, was clearly applicable in terms. In Dorchy v. Kansas, supra, 264 U.S. 286, 44 S.Ct. 323, the supervening event was a holding by this Court that another portion of the same state statute was unconstitutional, and the question was whether Dorchy's conviction could stand nevertheless. The state statute had a severability provision which seemingly answered the question conclusivel, providing that 'If any section or provision of this act shall be found invalid by any court, it shall be conclusively presumed that this act would have been passed by the legislature without such invalid section or provision * *  * .' Nevertheless, a unanimous Court vacated and reversed the judgment and remanded the case, so that the question could be decided by the state court. Mr. Justice Brandeis said, 264 U.S., at 290-291, 44 S.Ct., at 324:

'Whether section 19 (the criminal provision under which     Dorchy stood convicted) is so interwoven with the system held      invalid that the section cannot stand alone, is a question of      interpretation and of legislative intent. * *  * Section 28 of      the act (the severability clause) *  *  * provides a rule of      construction which may sometimes aid in determining that      intent. But it is an aid merely; not an inexorable command.

'The task of determining the intention of the state     legislature in this respect, like the usual function of      interpreting a state statute, rests primarily upon the state      court. Its decision as to the severability of a provision is     conclusive upon this Court. * *  * In cases coming from the      state courts, this Court, in the absence of a controlling      state decision, may, in passing upon the claim under the      federal law, decide, also, the question of severability. But     it is not obliged to do so. The situation may be such as to     make it appropriate to leave the determination of the      question to the state court. We think that course should be     followed in this case.

' * *  * In order that the state court may pass upon this      question, its judgment in this case, which was rendered before our decision in (the other case), should be      vacated. * * To this end the judgment is

'Reversed.'

Except for the immaterial fact that a severability clause rather than a saving clause was involved, the holding and the operative language of the Dorchy case are precisely in point here. Indeed, the need to set aside the judgment and remand the case is even more compelling here, since the Maryland saving clause is not literally applicable to the public accommodations laws and since state policy considerations strengthen the inference that it will be held inapplicable. Here, as in Dorchy, the applicability of the clause to save the conviction 'is a question of interpretation and of legislative intent,' and hence it is 'appropriate to leave the determination of the question to the state court.' Even if the Maryland saving clause were literally applicable, the fact would remain that, as in Dorchy, the clause 'provides a rule of construction which may sometimes aid in determining that intent. But it is an aid merely; not an inexorable command.' The Maryland Court of Appeals has § tated that the Mayland saving clause is likewise 'merely an aid to interpretation.' State v. Kennerly, note 4, supra, 204 Md., at 417, 104 A.2d, at 634.

In short, this case involves not only a question of state law but an open and arguable one. This Court thus has a 'duty to recognize the changed situation,' Gulf, C. & S.F.R. Co. v. Dennis, supra, 224 U.S., at 507, 32 S.Ct., at 543, and, by vacating and reversing the judgment and remanding the case, to give effect to the principle that '(t)he meaning and effect of the state statute now in question are primarily for the determination of the state court.' Missouri ex rel. Wabash R. Co. v. Public Service Comm'n, supra, 273 U.S., at 131, 47 S.Ct., at 313.

Accordingly, the judgment of the Maryland Court of Appeals should be vacated and the case remanded to that court, and to this end the judgment is

Reversed and remanded.

Mr. Justice DOUGLAS, with whom Mr. Justice GOLDBERG concurs as respects Parts II-V, for reversing and directing dismissal of the indictment.

I reach the merits of this controversy. The issue is ripe for decision and petitioners, who have been convicted of asking for service in Hooper's restaurant, are entitled to an answer to their complaint here and now.

On this the last day of the Term, we studio sly avoid decision of the basic issue of the right of public accommodation under the Fourteenth Amendment, remanding the case to the state court for reconsideration in light of an issue of state law.

This case was argued October 14 and 15, 1963-over eight months ago. The record of the case is simple, the constitutional guidelines well marked, the precedents marshalled. Though the Court is divided, the preparation of opinions laying bare the differences does not require even two months, let alone eight. Moreover, a majority reach the merits of the issue. Why then should a minority prevent a resolution of the differing views?

The laws relied on for vacating and remanding were enacted June 8, 1962, and March 29, 1963-long before oral argument. We did indeed not grant certiorari until June 10, 1963. Hence if we were really concerned with this state law question, we would have vacated and remanded for reconsideration in light of those laws on June 10, 1963. By now we would have had an answer and been able to put our decision into the mainstream of the law at this critical hour. If the parties had been concerned they too might have asked that we follow that course. Maryland adverted to the new law merely to show why certiorari should not be granted. At the argument and at our conferences we were not concerned with that question, the issue being deemed frivolous. Now it is resurrected to avoid facing the constitutional question.

The whole Nation has to face the issue; Congress is conscientiously considering it; some municipalities have had to make it their first order of concern; law enforcement officials are deeply implicated, North as well as South; the question is at the root of demonstrations, unrest, riots, and violence in various areas. The issue in other words consumes the public attention. Yet we stand mute, avoiding decision of the basic issue by an obvious pretense.

The clash between Negro customers and white restaurant owners is clear; each group claims protection by the Constitution and tenders the Fourteenth Amendment as justification for its action. Yet we leave resolution of the conflict to others, when, if our voice were heard, the issues for the Congress and for the public would become clear and precise. The Court was created to sit in troubled times as well as in peaceful days.

There is a school of thought that our adjudication of a constitutional issue should be delayed and postponed as long as possible. That school has had many stout defenders and ingenious means have at times been used to avoid constitutional pronouncements. Yet judge-made rules, fashioned to avoid decision of constitutional questions, largely forget what Chief Justice Marshall wrote in Fletcher v. Peck, 6 Cranch 87, 137-138, 3 L.Ed. 162:

'Whatever respect might have been felt for the state     sovereignties, it is not to be disguised that the framers of      the constitution viewed, with some apprehension, the violent      acts which might grow out of the feelings of the moment; and      that the people of the United States, in adopting that instrument, have manifested a      determination to shield themselves and their property from      the effects of those sudden and strong passions to which men      are exposed. The restrictions on the legislative power of the     states are obviously founded in this sentiment; and the      constitution of the United States contains what may be deemed      a bill of rights for the people of each state.'

Much of our history has shown that what Marshall said of the encroachment of legislative power on the rights of the people is true also of the encroachment of the judicial branch, as where state courts use unconstitutional procedures to convict people or make criminal what is beyond the reach of the States. I think our approach here should be that of Marshall in Marbury v. Madison, 1 Cranch 137, 177-178, 2 L.Ed. 60, where the Court spoke with authority though there was an obviously easy way to avoid saying anything:

'It is emphatically the province and duty of the judicial     department to say what the law is. Those who apply the rule     to particular cases, must of necessity expound and interpret      that rule. If two laws conflict with each other, the courts     must decide on the operation of each.

'So if a law be in opposition to the constitution; if both     the law and the constitution apply to a particular case, so      that the court must either decide that case conformably to      the law, disregarding the constitution; or conformably to the      constitution, disregarding the law; the court must determine      which of these conflicting rules governs the case. This is of     the very essence of judicial duty.'

We have in this case a question that is basic to our way of life and fundamental in our constitutional scheme. No question preoccupies the country more than this one; it is plainly justiciable; it presses for a decision one way or another; we should resolve it. The people should know that when filbusters occupy other forums, when oppressions are great, when the clash of authority between the individual and the State is severe, they can still get justice in the courts. When we default, as we do today, the prestige of law in the life of the Nation is weakened.

For these reasons I reach the merits; and I vote to reverse the judgments of conviction outright.

The issue in this case, according to those who would affirm, is whether a person's 'personal prejudices' may dictate the way in which he uses his property and whether he can enlist the aid of the State to enforce those 'personal prejudices.' With all respect, that is not the real issue. The corporation that owns this restaurant did not refuse service to these Negroes because 'it' did not like Negroes. The reason 'it' refused service was because 'it' thought 'it' could make more money by running a segregated restaurant.

In the instant case, G. Carroll Hooper, president of the corporate chain owning the restaurant here involved, testified concerning the episode that gave rise to these convictions. The reasons were wholly commercial ones:

'I set at the table with him and two other people and     reasoned and talked to him why my policy was not yet one of      integration and told him that I had two hundred employees and      half of them were colored. I thought as much of them as I did     the white employees. I invited them back in my kitchen if     they'd like to go back and talk to them. I wanted to prove to     them it wasn't my policy, my personal prejudice, we were not,      that I had valuable colored employees and I thought just as      much of them. I tried to reason with these leaders, told them that as long as     my customers were the deciding who they want to eat with, I'm      at the mercy of my customers. I'm trying to do what they     want. If they fail to come in, these people are not paying my     expenses, and my bills. They didn't want to go back and talk     to my colored employees because every one of them are in      sympathy with me and that is we're in sympathy with what      their objectives are, with what they are trying to abolish *      *  * .' (Italics added.)

Here, as in most of the sit-in cases before us, the refusal of service did not reflect 'personal prejudices' but business reasons. Were we today to hold that segregated restaurants, whose racial policies were enforced by a State, violated the Equal Protection Clause, all restaurants would be on an equal footing and the reasons given in this and most of the companion cases for refusing service to Negroes would evaporate. Moreover, when corporate restaurateurs are involved, whose 'personal prejudices' are being protected? The stockholders'? The directors'? The officers'? The managers'? The truth is, I think, that the corporate interest is in making money, not in protecting 'personal prejudices.'

I leave those questions to another part of this opinion and turn to an even more basic issue.

I now assume that the issue is the one stated by those who would affirm. The case in that posture deals with a relic of slavery-an institution that has ast a long shadow across the land, resulting today in a second-class citizenship in this area of public accommodations.

The Thirteenth, Fourteenth, and Fifteenth Amendments had 'one pervading purpose * *  * we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newlymade freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.' Slaughter-House Cases, 16 Wall. 36, 71, 21 L.Ed. 394.

Prior to those Amendments, Negroes were segregated and disallowed the use of public accommodations except and unless the owners chose to serve them. To affirm these judgments would remit those Negroes to their old status and allow the States to keep them there by the force of their police and their judiciary.

We deal here with public accommodations-with the right of people to eat and travel as they like and to use facilities whose only claim to existence is serving the public. What the President said in his State of the Union Message on January 8, 1964, states the constitutional right of all Americans, regardless of race or color, to be treated equally by all branches of government:

'Today Americans of all races stand side by side in Berlin     and in Vietnam.

'They died side by side in Korea.

'Surely they can work and eat and travel side by side in     their own country.'

The Black Codes were a substitute for slavery; segregation was a substitute for the Black Codes; the discrimination in these sit-in cases is a relic of slavery.

The Fourteenth Amendment says 'No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.' The Fourteenth Amendment also makes every person who is born here a citizen; and there is no second or third or fourth class of citizenship. See, e.g., Schneider v. Rusk, 377 U.S. 163, 168, 84 S.Ct. 1187, 1190.

We deal here with incidents of national citizenship. As stated in the Slaughter-House Cases, 16 Wall. 36, 71-72, 21 L.Ed. 394, concerning the federal rights resting on the Thirteenth, Fourteenth, and Fifteenth Amendments:

' * *  * no one can fail to be impressed with the one pervading      purpose found in them all, lying at the foundation of each,      and without which none of them would have been even      suggested; we mean the freedom of the slave race, the      security and firm establishment of that freedom, and the      protection of the newly-made freeman and citizen from the      oppressions of those who had formerly exercised unlimited      dominion over him. It is true that only the fifteenth     amendment, in terms, mentions the negro by speaking of his      color and his slavery. But it is just as true that each of     the other articles was addressed to the grievances of that      race, and designed to remedy them as the fifteenth.' When we deal with Amendments touching the liberation of people from slavery, we deal with rights 'which owe their existence to the Federal government, its National character, its Constitution, or its laws.' Id., 16 Wall. at 79. We are not in the field of exclusive municipal regulation where federal intrusion might 'fetter and degrade the State governments by subjecting them to the control of Congress, in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character.' Id., 16 Wall. at 78.

There has been a judicial reluctance to expand the content of national citizenship beyond racial discrimination, voting rights, the right to travel, safe custody in the hands of a federal marshal, diplomatic protection abroad, and the like. See Slaughter-House Cases, supra; Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429; United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368; Edwards v. California, 314 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119; Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204. The reluctance has been due to a fear of creating constitutional refuges for a host of rights historically subject to regulation. See Madden v. Kentucky, 309 U.S. 83, 60 S.Ct. 406, 84 L.Ed. 590, overruling Colgate v. Harvey, 296 U.S. 404, 56 S.Ct. 252, 80 L.Ed. 299. But those fears have no relevance here, where we deal with Amendments whose dominant purpose was to guarantee the freedom of the slave race and establish a regime where national citizenship has only one class.

The manner in which the right to be served in places of public accommodations is an incident of national citizenship and of the right to travel is summarized in H.R.Rep. No. 914, Pt. 2, 88th Cong., 1st Sess., pp. 7-8:

'An official of the National Association for the Advancement     of Colored People, testified before the Senate Commerce      Subcommittee as follows:

"For millions of Americans this is vacation time. Swarms of     families load their automobiles and trek across country. I      invite the members of this committee to imagine themselves darker in color and to plan an      auto trip from Norfolk, Va., to the gulf coast of      Mississippi, say, to Biloxi. Or one from Terre Haute, Ind.,      to Charleston, S.C.., or from Jacksonville, Fla., to Tyler,      Tex.

"How far do you drive each day? Where and under what     conditions can you and your family eat? Where can they use a      rest room? Can you stop driving after a reasonable day behind      the wheel or must you drive until you reach a city where      relatives or friends will accommodate you and yours for the      night? Will your children be denied a soft dring or an ice      cream cone because they are not white?'

'In response to Senator Pastore's question as to what the     Negro must do, there was the reply:

"Where you travel through what we might call hostile     territory you take your chances. You drive and you drive and      you drive. You don't stop where there is a vacancy sign out      at a motel at 4 o'clock in the afternoon and rest yourself;      you keep on driving until the next city or the next town      where you know somebody or they know somebody who knows      somebody who can take care of you.

"This is the way you plan it.

"Some of them don't go.'

'Daily we permit citizens of our Nation to be humiliated and     subjected to hardship and abuse solely because of their      color.'

As stated in the first part of the same Report, p. 18:

'Today, more than 100 years after their formal emancipation,     Negroes, who make up over 10 percent of our population, are      by virtue of one or another type of discrimination not      accorded the rights, privileges, and opportunities which are      considered to be, and must be, the birthright of all      citizens.' When one citizen because of his race, creed, or color is denied the privilege of being treated as any other citizen in places of public accommodation, we have classes of citizenship, one being more degrading than the other. That is at war with the one class of citizenship created by the Thirteenth, Fourteenth, and Fifteenth Amendments.

As stated in Ex parte Virginia, 100 U.S. 339, 344-345, 25 L.Ed. 676, where a federal indictment against a state judge for discriminating against Negroes in the selection of jurors was upheld:

'One great purpose of these amendments was to raise the     colored race from that condition of inferiority and servitude      in which most of them had previously stood, into perfect      equality of civil rights with all other persons within the      jurisdiction of the States. They were intended to take away     all possibility of oppression by law because of race or      color. They were intended to be, what they really are,     limitations of the power of the States and enlargements of      the power of Congress.'

The problem in this case, and in the other sit-in cases before us, is presented as though it involved the situation of 'a private operator conducting his own business on his own premises and exercising his own judgment' as to whom he will admit to the premises.

The property involved is not, however, a man's home or his yard or even his fields. Private property is involved, but it is property that is serving the public. As my Brother GOLDBERG says, it is a 'civil' right, not a 'social' right, with which we deal. Here it is a restaurant refusing service to a Negro. But so far as principle and law are concerned it might just as well be a hospital refusing admission to a sick or injured Negro (cf. Simkins v Moses H. Cone Memorial Hospital, 4 Cir., 323 F.2d 959), or a drugstore refusing antibiotics to a Negro, or a bus denying transportation to a Negro, or a telephone company refusing to install a telephone in a Negro's home.

The problem with which we deal has no relation to opening or closing the door of one's home. The home of course is the essence of privacy, in no way dedicated to public use, in no way extending an invitation to the public. Some businesses, like the classical country store where the owner lives overhead or in the rear, make the store an extension, so to speak, of the home. But such is not this case. The facts of these sit-in cases have little resemblance to any institution of property which we customarily associate with privacy.

Joseph H. Choate, who argued the Income Tax Cases (Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429, 534, 15 S.Ct. 673, 39 L.Ed. 759), said:

'I have thought that one of the fundamental objects of all     civilized government was the preservation of the rights of      private property. I have thought that it was the very     keystone of the arch upon which all civilized government      rests, and that this once abandoned, everything was at stake      and in danger. That is what Mr. Webster said in 1820, at     Plymouth, and I supposed that all educated, civilized men      believed in that.'

Charles A. Beard had the theory that the Constitution was 'an economic document drawn with superb skill by men whose property interests were immediately at stake.' An Economic Interpretation of the Constitution of the United States (1939), p. 188. That school of thought would receive new impetus from an affirmance of these judgments. Seldom have modern cases (cf. the ill-starred Dred Scott decision, 19 How. 393, 15 L.Ed. 691) so exalted property in suppression of individual rights. We would reverse the modern trend were we to hold that property voluntarily serving the public can receive state protection when the owner refuses to serve some solely because they are colored.

There is no specific provision in the Constitution which protects rights of privacy and enables restaurant owners to refuse service to Negroes. The word 'property' is, indeed, not often used in the Constitution, though as a matter of experience and practice we are committed to free enterprise. The Fifth Amendment makes it possible to take 'private property' for public use only on payment of 'just compensation.' The ban on quartering soldiers in any home in time of peace, laid down by the Third Amendment, is one aspect of the right of privacy. The Fourth Amendment in its restrictions on searches and seizures also sets an aura of privacy around private interests. And the Due Process Clauses of the Fifth and Fourteenth Amendments lay down the command that no person shall be deprived 'of life, liberty, or property, without due process of law.' (Italics added.) From these provisions those who would affirm find emanations that lead them to the conclusion that the private owner of a restaurant serving the public can pick and choose whom he will serve and restrict his dining room to whites only.

Apartheid, however, is barred by the common law as respects innkeepers and common carriers. There were, to be sure, criminal statutes that regulated the common callings. But the civil remedies were made by judges who had no written constitution. We, on the other hand, live under a constitution that proclaims equal protection under the law. Why then, even in the absence of a statute, should apartheid be given constitutional sanction in the restaurant field? That was the question I asked in Lombard v. Louisiana, 373 U.S. 267, 83 S.Ct. 1122. I repeat it here. Constitutionally speaking, why should Hooper Food Co., Inc., or Peoples Drug Stores-or any other establishment that dispenses food or medicines-stand on a higher, more sanctified level than Greyhound Bus when it comes to a constitutional right to pick and choose its customers?

The debates on the Fourteenth Amendment show, as my Brother GOLDBERG points out, tha one of its purposes was to grant the Negro 'the rights and guarantees of the good old common law.' Post, at 294. The duty of common carriers to carry all, regardless of race, creed, or color, was in part the product of the inventive genius of judges. See Lombard v. Louisiana, 373 U.S., at 275-277, 83 S.Ct. at 1126-1127. We should make that body of law the common law of the Thirteenth and Fourteenth Amendments so to speak. Restaurants in the modern setting are as essential to travelers as inns and carriers.

Are they not as much affected with a public interest? Is the right of a person to eat less basic than his right to travel, which we protected in Edwards v. California, 314 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119? Does not a right to travel in modern times shrink in value materially when there is no accompanying right to eat in public places?

The right of any person to travel interstate irrespective of race, creed, or color is protected by the Constitution. Edwards v. California, supra. Certainly his right to travel intrastate is as basic. Certainly his right to eat at public restaurants is as important in the modern setting as the right of mobility. In these times that right is, indeed, practically indispensable to travel either interstate or intrastate.

The requirement of equal protection, like the guarantee of privileges and immunities of citizenship, is a constitutional command directed to each State.

State judicial action is as clearly 'state' action as state administrative action. Indeed, we held in Shelley v. Kraemer, 334 U.S. 1, 20, 68 S.Ct. 836, 845, 92 L.Ed. 1161, that 'State action, as that phrase is understood for the purposes of the Fourteenth Amendment, refers to exertions of state power in all forms.'

That case involved suits in state courts to enforce restrictive covenants in deeds of residential property whereby the owner agreed that it should not be used or occupied by any person except a Caucasian. There was no state statute regulating the matter. That is, the State had not authorized by legislative enactment the use of restrictive covenants in residential property transactions; nor was there any administrative regulation of the matter. Only the courts of the State were involved. We held without dissent in an opinion written by Chief Justice Vinson that there was nonetheless state action within the meaning of the Fourteenth Amendment:

'The short of the matter is that from the time of the     adoption of the Fourteenth Amendment until the present, it      has been the consistent ruling of this Court that the action      of the States to which the Amendment has reference, includes      action of state courts and state judicial officials. Although, in construing the terms of the Fourteenth     Amendment, differences have from time to time been expressed      as to whether particular types of state action may be said to      offend the Amendment's prohibitory provisions, it has never      been suggested that state court action is immunized from the      operation of those provisions simply because the act is that      of the judicial branch of the state government.' Id., 334      U.S. at 18, 68 S.Ct. at 844.

At the time of the Shelley case there was to be sure a Congressional Civil Rights Act that guaranteed all citizens the same right to purchase and sell property 'as is enjoyed by white citizens.' Id., 334 U.S. at 11, 68 S.Ct. at 841. But the existence of that statutory right, like the existence of a right under the Constitution, is no criterion for determining what is or what is not 'state' action within the meaning of the Fourteenth Amendment. The conception of 'state' action has been considered in light of the degree to which a State has participated in depriving a person of a right. 'Judicial' action alone has been considered ample in hundreds of cases. Thus, 'state action' took place only by judicial action in cases involving the use of coerced confessions (e.g., Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716), the denial to indigents of equal protection in judicial proc edings (e.g., Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891), and the action of state courts in punishing for contempt by publication (e.g., Bridges v. California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192).

Maryland's action against these Negroes was as authoritative as any case where the State in one way or another puts its full force behind a policy. The policy here was segregation in places of public accommodation; and Maryland enforced that policy with her police, her prosecutors, and her courts.

The owners of the residential property in Shelley v. Kraemer were concerned, as was the corporate owner of this Maryland restaurant, over a possible decrease in the value of the property if Negroes were allowed to enter. It was testified in Shelley v. Kraemer that white purchasers got better bank loans than Negro purchasers:

'A. Well, I bought 1238 north Obert, a 4-family flat, about a     year ago through a straw party, and I was enabled to secure a      much larger first deed of trust than I would have been able      to do at the present home on Garfield.

'The Court: I understand what you mean: it's easier to     finance?

'A. Yes, easier to finance through white. That's common     knowledge.

'Q. You mean if property is owned by a white person its     easier to finance it?

'A. White can secure larger loans, better loans. I have a 5%     loan.'

In McGhee v. Sipes, a companion case to Shelley v. Kraemer, a realtor testified:

'I have seen the result of influx of colored people moving     into a white neighborhood. There is a depression of values to     start with, general run down of the neighborhood within a      short time afterwards. I have, however, seen one exception. The colored people on Scotten, south of Tireman have kept up     their property pretty good and enjoyed them. As a result of     this particular family moving in the people in the section      are rather panic-stricken and they are willing to sell-the      only thing that is keeping them from throwing their stuff on      the market and giving it away is the fact that they think      they can get one or two colored people in there out of there. My own sales have been affected by this family. * *  *

'I am familiar with the property at 4626 Seebaldt, and the     value of it with a colored family in it is fifty-two hundred,      and if there was no colored family in it I would say      sixty-eight hundred. I would say seven thousand is a fair     price for that property.'

While the purpose of the restrictive covenant is in part to protect the commercial values in a 'closed' community (see Hundley v. Gorewitz, 77 U.S.App.D.C. 48, 132 F.2d 23, 24), it at times involves more. The sale to a Negro may bring a higher price than a sale to a white. See Swain v. Maxwell, 355 Mo. 448, 454, 196 S.W.2d 780, 785. Yet the resistance to having a Negro as a neighbor is often strong. All-white or all-Caucasian residential communities are often preferred by the owners.

An occupant of a 'white' area testified in Hurd v. Hodge, 334 U.S. 24, 68 S.Ct. 847, 92 L.Ed. 1187, another companion case to Shelley v. Kraemer:

' * *  * we feel bitter towards you for coming in and breaking      up our block. We were very peaceful and harmonious there and     we feel that you bought that property just to transact it      over to colored people and we don't like it, and naturally we      feel bitter towards you *  *  * .'

'A. The complexion of the person doesn't mean anything.

'Q. The complexion does not?

'A. It is a fact that he is a negro.

'Q. I see, so no matter how brown a negro may be, no matter     how white they are, you object to them?

'A. I would say yes, Mr. Houston. * *  * I want to live with      my own color people.'

The preferences involved in Shelley v. Kraemer and its companion cases were far more personal than the motivations of the corporate managers in the present case when they declined service to Negroes. Why should we refuse to let state courts enforce apartheid in residential areas of our cities but let state courts enforce apartheid in restaurants? If a court de ree is state action in one case, it is in the other. Property rights, so heavily underscored, are equally involved in each case.

The customer in a restaurant is transitory; he comes and may never return. The colored family who buys the house next door is there for keeps-night and day. If 'personal prejudices' are not to be the criterion in one case they should not be in the other. We should put these restaurant cases in line with Shelley v. Kraemer, holding that what the Fourteenth Amendment requires in restrictive covenant cases it also requires from restaurants.

Segregation of Negroes in the restaurants and lunch counters of parts of America is a relic of slavery. It is a badge of second-class citizenship. It is a denial of a privilege and immunity of national citizenship and of the equal protection guaranteed by the Fourteenth Amendment against abridgment by the States. When the state police, the state prosecutor, and the state courts unite to convict Negroes for renouncing that relic of slavery, the 'State' violates the Fourteenth Amendment.

I would reverse these judgments of conviction outright, as these Negroes in asking for service in Hooper's restaurant were only demanding what was their constitutional right.

APPENDIX I TO OPINION OF MR. JUSTICE DOUGLAS.

In the sit-in cases involving eating places last Term and this Term, practically all restaurant or lunch counter owners whose constitutional rights were vindicated below are corporations. Only two out of the 20 before us are noncorporate, as Appendix III shows. Some of these corporations are small, privately owned affairs. Others are large, national or regional businesses with many stockholders:

S. H. Kress & Co., operating 272 stores in 30 States, its stock being listed on the New York Stock Exchange; McCrory Corporation, with 1,307 stores, its stock being listed on the New York Stock Exchange; J. J. Newberry Co., with 567 stores of which 371 serve food, its stock being listed on the New York Stock Exchange; F. W. Woolworth Co., with 2,130 stores, its stock also being listed on the New York Stock Exchange; Eckerd Drugs, having 17 stores with its stock traded over-the-counter. F. W. Woolworth has over 90,000 stockholders; J. J. Newberry about 8,000; McCrory over 24,000; S. H. Kress over 8,000; Eckerd Drugs about 1,000.

At the national level most 'eating places,' as Appendix IV shows, are individual proprietorships or partnerships. But a substantial number are corporate in form; and even though in numbers they are perhaps an eighth of the others, in business done they make up a much larger percentage of the total.

Those living in the Washington, D.C., metropolitan area know that it is true in that area-the hotels are incorporated; Howard Johnson Co., listed on the New York Stock Exchange, has 650 restaurants and over 15,000 stockholders; Hot Shoppes, Inc., has 4,900 stockholders; Thompson Co. (involved in District of Columbia v. John R. Thompson Co., 346 U.S. 100, 73 S.Ct. 1007, 97 L.Ed. 1480) has 50 restaurants in this country with over 1,000 stockholders and its stock is listed on the New York Stock Exchange; Peoples Drug Stores, with a New York Stock Exchange listing, has nearly 5,000 stockholders. See Moody's Industrial Manual (1963 ed.).

All the sit-in cases involve a contest in a criminal trial between Negroes who sought service and state prosecutors and state judges who enforced trespass laws against them. The corporate beneficiaries of these convictions, those whose constitutional rights were vindicated by these convictions, are not parties to these suits. The beneficiary in the present case was Hooper Food Co., Inc., a Maryland corporation; and as seen in Appendix IV, 'eating places' in Maryland owned by corporations, though not a fourth in number of those owned by individuals or partnerships, do nearly as much business as the other two combined.

So far as the corporate owner is concerned, what constitutional right is vindicated? It is said that ownership of property carries the right t use it in association with such people as the owner chooses. The corporate owners in these cases the stockholders-are unidentified members of the public at large, who probably never saw these petitioners, who may never have frequented these restaurants. What personal rights of theirs would be vindicated by affirmance? Why should a stockholder in Kress, Woolworth, Howard Johnson, or any other corporate owner in the restaurant field have standing to say that any associational rights personal to him are involved? Why should his interests-his associational rights-make it possible to send these Negroes to jail?

Who, in this situation, is the corporation? Whose racial prejudices are reflected in 'its' decision to refuse service to Negroes? The racial prejudices of the manager? Of the stockholders? Of the board of directors?

The Court in Santa Clara County v. Southern Pacific R. Co., 118 U.S. 394, 6 S.Ct. 1132, 30 L.Ed. 118, interrupted counsel on oral argument to say, 'The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of opinion that it does.' 118 U.S., at 396, 6 S.Ct. 1132. Later the Court held that corporations are 'persons' within the meaning of the Due Process Clause of the Fourteenth Amendment. Minneapolis & St. L.R. Co. v. Beckwith, 129 U.S. 26, 28, 9 S.Ct. 207, 32 L.Ed. 585. While that view is the law today, it prevailed only over dissenting opinions. See the dissent of Mr. Justice BLACK in Connecticut General Co. v. Johnson, 303 U.S. 77, 85, 58 S.Ct. 436, 440, 82 L.Ed. 673; and my dissent in Wheeling Steel Corp. v. Glander, 337 U.S. 562, 576, 69 S.Ct. 1291, 1299, 93 L.Ed. 1544. Mr. Justice BLACK said of that doctrine and its influence:

' * *  * of the cases in this Court in which the Fourteenth      Amendment was applied during the first fifty years after its      adoption, less than one-half of one per cent. invoked it in     protection of the negro race, and more than 50 per cent. asked that its benefits be extended to corporations.'     Connecticut General Co. v. Johnson, 303 U.S., at 90, 58 S.Ct. at 442.

A corporation, like any other 'client,' is entitled to the attorney-client privilege. See Radiant Burners, Inc., v. American Gas Ass'n., 7 Cir., 320 F.2d 314. A corporation is protected as a publisher by the Freedom of the Press Clause of the First Amendment. Grosjean v. American Press Co., 297 U.S. 233, 244, 56 S.Ct. 444, 446, 80 L.Ed. 660: New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686. A corporation, over the dissent of the first Mr. Justice Harlan, was held entitled to protection against unreasonable searches and seizures by reason of the Fourth Amendment. Hale v. Henkel, 201 U.S. 43, 76-77, 26 S.Ct. 370, 379-380, 50 L.Ed. 652. On the other hand the privilege of self-incrimination guaranteed by the Fifth Amendment cannot be utilized by a corporation. United States v. White, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542. 'The constitutional privilege against self-incrimination is essentially a personal one, applying only to natural individuals.' Id., 322 U.S. at 698, 64 S.Ct. at 1251.

We deal here, we are told, with personal rights-the rights pertaining to property. One need not share his home with one he dislikes. One need not allow another to put his foot upon his private domain for any reason he desires-whether bigoted or enlightened. In the simple agricultural economy that Jefferson extolled, the conflicts posed were highly personal. But how is a 'personal' right infringed when a corporate chain store, for example, is forced to open its lunch counters to people of all races? How can that so-called right be elevated to a constitutional level? How is that corporate right more 'personal' than the right against self-incrimination?

The revolutionary change effected by an affirmance in these sit-in cases would be much more damaging o an open and free society than what the Court did when it gave the corporation the sword and the shield of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Affirmance finds in the Constitution a corporate right to refuse service to anyone 'it' chooses and to get the State to put people in jail who defy 'its' will.

More precisely, affirmance would give corporate management vast dimensions for social planning.

Affirmance would make corporate management the arbiter of one of the deepest conflicts in our society: corporate management could then enlist the aid of state police, state prosecutors, and state courts to force apartheid on the community they served, if apartheid best suited the corporate need; or, if its profits would be better served by lowering the barriers of segregation, it could do so.

Veblen, while not writing directly about corporate management and the racial issue, saw the danger of leaving fundamental, governmental decisions to the managers or absentee owners of our corporate enterprises:

'Absentee ownership and absentee management on this grand     scale is immune from neighborly personalities and from      sentimental considerations and scruples.

'It takes effect through the colorless and impersonal     channels of corporation management, at the hands of businesslike officials whose discretion and      responsibility extend no farther than the procuring of a      reasonably large-that is to say the largest obtainable-net      gain in terms of price. The absentee owners are removed out     of all touch with the working personnel or with the      industrial work in hand, except such remote, neutral and      dispassionate contact by proxy as may be implied in the      continued receipt of a free income; and very much the same is      true for the business agents of the absentee owners, the      investment-bankers and the staff of responsible corporation      officials. Their relation to what is going on, and to the     manpower by use of which it is going on, is a fiscal      relation. As industry, as a process of workmanship and a     production of the means of life, the work in hand has no      meaning for the absentee owners sitting in the fiscal      background of these vested interests. Personalities and     tangible consequences are eliminated and the business of      governing the rate and volume of the output goes forward in      terms of funds, prices, and percentages.' Absentee Ownership      (1923), pp. 215-216.

The point is that corporate motives in the retail field relate to corporate profits, corporate prestige, and corporate public relations. Corporate motives have no tinge of an individual's choice to associate only with one class of customers, to keep members of one race from his 'property,' to erect a wall of privacy around a business in the manner that one is erected around the home.

At times a corporation has standing to assert the constitutional rights of its members, as otherwise the rights peculiar to the members as individuals might be lost or impaired. Thus in NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488, the question was whether the N.A.A.C.P., a membership corporation, could assert on behalf of its members a right personal to them to be protected from compelled disclosure by the State of their affiliation with it. In that context we said the N.A.A.C.P. was 'the appropriate party to assert these rights, because it and its members are in every practical sense identical.' Id., 357 U.S. at 459, 78 S.Ct. at 117. We felt, moreover, that to deny the N.A.A.C.P. standing to raise the question and to require it to be claimed by the members themselves 'would result in nullification of the right at the very moment of its assertion.' Ibid. Those were the important reasons governing our decision, the adverse effect of disclosure on the N.A.A.C.P. itself being only a make-weight. Id., 357 U.S. at 459-460, 78 S.Ct. at 1170.

The corporate owners of a restaurant, like the corporate owners of streetcars, buses, telephones, and electric light and gas facilities, are interested in balance sheets and in profit and loss statements. 'It' does not stand at the door turning Negroes aside because of 'its' feelings of antipathy to black-skinned people. 'It' does not have any associational rights comparable to the classic individual store owner at a country crossroads whose store, in the dichotomy of an Adam Smith, was indeed no different from his home. 'It' has been greatly transformed, as Berle and Means, The Modern Corporation and Private Property (1932), made clear a generation ago; and 'it' has also transformed our economy. Separation of power or control from beneficial ownership was part of the phenomenon of change:

'This dissolution of the atom of property destroys the very     foundation on which the economic order of the past three      centuries has rested. Private enterprise, which has molded     economic life since the close of the middle ages, has been      rooted in the institution of private property. Under the     feudal system, its predecessor, economic organization grew      out of mutual obligations and privileges derived by various      individuals from their relation to property which no one of      them owned. Private enterprise, on the other hand, has     assumed an owner of the instruments of production with      complete property rights over those instruments. Whereas the     organization of feudal economic life rested upon an elaborate      system of binding customs, the organization under the system      of private enterprise has rested upon the self-interest of      the property owner-a self-interest held in check only by      competition and the conditions of supply and demand. Such     self-interest has long been regarded as the best guarantee of      economic efficiency. It has been assumed that, if the     individual is protected in the right both to use his own      property as he sees fit and to receive the full fruits of its      use, his desire for personal gain, for profits, can be relied      upon as an effective incentive to his efficient use of any      industrial property he may possess.

'In the quasi-public corporation, such an assumption no     longer holds. * *  * it is no longer the individual himself      who uses his wealth. Those in control of that wealth, and     therefore in a position to secure industrial efficiency and      produce profits, are no longer, as owners, entitled to the      bulk of such profits. Those who control the destinies of the     typical modern corporation own so insignificant a fraction of the      company's stock that the returns from running the corporation      profitably accrue to them in only a very minor degree. The     stockholders, on the other hand, to whom the profits of the      coporation go, cannot be motivated by those profits to a more      efficient use of the property, since they have surrendered      all disposition of it to those in control of the enterprise. The explosion of the atom of property destroys the basis of     the old assumption that the quest for profits will spur the      owner of industrial property to its effective use. It     consequently challenges the fundamental economic principle of      individual initiative in industrial enterprise.' Id., at 8-9.

By like token the separation of the atom of 'property' into one unit of 'management' and into another of 'absentee ownership' has in other ways basically changed the relationship of that 'property' to the public.

A corporation may exclude Negroes if 'it' thinks 'it' can make more money doing so. 'It' may go along with community prejudices when the profit and loss statement will benefit; 'it' is unlikely to go again t the current of community prejudice when profits are endangered.

Veblen stated somewhat the same idea in Absentee Ownership (1923), p. 107:

' * *  * the arts of business are arts of bargaining,      effrontery, salesmanship, make-believe, and are directed to      the gain of the business man at the cost of the community, at      large and in detail. Neither tangible performance nor the     common good is a business proposition. Any material use which     his traffic may serve is quite beside the business man's      purpose, except indirectly, in so far as it may serve to      influence his clientele to his advantage.'

By this standard the bus company could refuse service to Negroes if 'it' felt 'its' profits would increase once apartheid were allowed in the transportation field.

In the instant case, G. Carroll Hooper, president of the corporate chain owning the restaurant here involved, testified concerning the episode that gave rise to these convictions. His reasons were wholly commercial ones, as we have already seen.

There are occasions when the corporation is little more than a veil for man and wife or brother and brother; and disregarding the corporate entity often is the instrument for achieving a just result. But the relegation of a Negro customer to second-class citizenship is not just. Nor is fastening apartheid on America a worthy occasion for tearing aside the corporate veil.

APPENDIX II TO OPINION OF MR. JUSTICE DOUGLAS.

A. In Green v. Virginia, 378 U.S. 550, 84 S.Ct. 1910, the purpose or reason for not serving Negroes was ruled to be immaterial to the issues in the case.

B. In the following cases, the testimony of corporate officers shows that the reason was either a commercial one or, which amounts to the same thing, that service to Negroes was not in accord with local custom:

1. Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697.

Dr. Guy Malone, the manager of the Columbia branch of Eckerd Drugs of Florida, Inc., testified:

'Q. Mr. Malone, is the public generally invited to do     business with Eckerd's?

'A. Yes, I would say so.

'Q. Does that mean all of the public of all races?

'A. Yes.

'Q. Are Neg oes welcome to do business with Eckerd's?

'A. Yes.

'Q. Are Negroes welcome to do business at the lunch counter     at Eckerd's?

'A. Well, we have never served Negroes at the lunch counter     department.

'Q. According to the present pollicy of Eckerd's, the lunch     counter is closed to members of the Negro public?

'A. I would say yes.

'Q. And all other departments of Eckerd's are open to members     of the Negro public, as well as to other members of the      public generally?

'A. Yes.

'Q. Mr. Malone, on the occasion of the arrest of these young     men, what were they doing in your store, if you know?

'A. Well, it was four of them came in. Two of them went back     and sat down at the first booth and started reading books,      and they sat there for about fifteen minutes. Of course, we     had had a group about a week prior to that, of about fifty,      who came into the store.

'Mr. Perry: Your Honor, I ask, of course, that the prior     incident be stricken from the record. That is not responsive     to the question which has been asked, and is not pertinent to      the matter of the guilt or innocence of these young men.

'The Court: All right, strike it.

'Mr. Sholenberger: Your Honor, this is their own witness.

'Mr. Perry: We announced at the outset that Mr. Malone would,     in a sense, be a hostile witness.

'Q. And so, when a person comes into Eckerd's and seats     himself at a place where food is ordinarily served, what is      the practice of your employees in that regard?

'A. Well, it's to take their order.

'Q. Did anyone seek to take the orders of these young men?

'A. No, they did not.

'Q. Why did they not do so?

'A. Because we didn't want to serve them.

'Q. Why did you not want to serve them?

'A. I don't think I have to answer that.

'Q. Did you refuse to serve them because they were Negroes? 'A. No.

'Q. You did say, however, that Eckerd's has the policy of not     serving Negroes in the lunch counter section?

'A. I would say that all stores do the same thing.

'Q. We're speaking specifically of Eckerd's?

'A. Yes.

'Q. Did you or any or your employees, Mr. Malone, approach     these defendants and take their order for food?

'A. No.'

2. Robinson v. Florida, 378 U.S. 153, 84 S.Ct. 1693.

A Vice President of Shell's City, Inc., testified:

'Q. Why did you refuse to serve these defendants?

'A. Because I feel, definitely, it is very detrimental to our     business to do so.

'Q. What do you mean 'detrimental'?

'A. Detrimental because it would mean a loss of business to     us to serve mixed groups.'

Another Vice President of Shell's City, Inc., testified:

'Q. You have several departments in your store, do you not?

'A. Yes. Nineteen, I believe. Maybe twenty.

'Q. Negroes are invited to participate and make purchases in     eighteen of these departments?

'A. Yes, sir.

'Q. Can you distinguish between your feeling that it is not     detrimental to have them served in eighteen departments and      it is detrimental to have them served in the nineteenth      department, namely, the lunch counter?

'A. Well, it goes back to what is the custom, that is, the     tradition of what is basically observed in Dade County would      be the bottom of it. We have-

'Q. Would you tell me what this custom is, that you are     making reference to, that would prevent you from serving      Negroes at your lunch counter? 'A. I believe I already answered that, that it is the customs     and traditions and practice in this county-not only in this      county but in this part of the state and elsewhere, not to      serve whites and colored people seated in the same      restaurant. That's my answer.

'Q. Was that the sole reason, the sole basis, for your     feeling that this was detrimental to your business?

'A. Well, that is the foundation of it, yes, but we feel that     at this time if we went into a thing of trying to break that      barrier, we might have racial trouble, which we don't want. We have lots of good friends among colored people and will     have when this case is over.

'Q. Are you familiar with the fact that the Woolworth Stores     in this community have eliminated this practice?

'Mr. Goshgarian: To which the State objects. It is irrelevant     and immaterial.

'The Court: The objection is sustained.'

3. Fox v. North Carolina, 378 U.S. 587, 84 S.Ct. 1901.

Mr. Claude M. Breeden, the manager of the McCrory branch in Raleigh, testified:

'I just don't serve colored. I don't have the facilities for     serving colored. Explaining why I don't serve colored. I     don't have the facilities for serving colored. I have the     standard short order lunch, but I don't serve colored. I     don't serve colored because I don't have the facilities for      serving colored.

'COUNSEL FOR DEFENDANT: What facilities would be necessary     for serving colored?

'SOLICITOR FOR STATE: Objection.

'THE COURT: Sustained.

'WITNESS CONTINUES: It is not the policy of my store to     discriminate and not serve Negroes. We have no policy against     discrimination. I do not discriminate and it is not the     custom in the Raleigh Store to discriminate. I do not have     the facilities for serving colored and that is why I don't      serve colored.' 4. Mitchell v. City of Charleston, 378 U.S. 551, 84 S.Ct. 1901.

Mr. Albert C. Watts, the manager of the S. H. Kress & Co. outlet in Charleston, testified:

'Q. * *  * What type of business is Kress's?

'A. Five and Ten Cent variety store.

'Q. Could you tell us briefly something about what     commodities it sells-does it sell just about every type of      commodity that one might find in this type establishment?

'A. Strictly variety store merchandise-no appliances or     anything like that.

'Q. I see. Kress, I believe it invites members of the public     generally into its premises to do business, does it not?

'A. Yes.

'Q. It invites Negroes in to do business, also?

'A. Right.

'Q. Are Negroes served in all of the departments of Kress's     except your lunch counter?

'A. We observe local custom.

'Q. In Charleston, South Carolina, the store that you manage,     sir, does Kress's serve Negroes at the lunch counter?

'A. No. It is not a local custom.

'Q. To your knowledge, does the other like businesses serve     Negroes at their lunch counters? What might happen at     Woolworth's or some of the others?

'A. They observe local custom-I say they wouldn't.

'Q. Then you know of your own knowledge that they do not     serve Negroes? Are you speaking of other business such as     your business?

'A. I can only speak in our field, yes.

'Q. In your field, so that the other stores in your field do     not serve Negroes at their lunch counters?

'A. Yes, sir.' 5. Hamm v. City of Rock Hill, 377 U.S. 988, 84 S.Ct. 1902.

Mr. H. C. Whiteaker, the manager of McCrory's in Rock Hill, testified:

'Q. All rght. Now, how many departments do you have in your     store?

'A. Around twenty.

'Q. Around twenty departments?

'A. Yes, sir.

'Q. All right, sir, is one of these departments considered a     lunch counter or establishment where food is served?

'A. Yes, sir. That is a separate department.

'Q. Now, I believe, is it true that you invite members of the     public to come into your store?

'A. Yes, it is for the public.

'Q. And is it true, too, that the public to you means     everybody, various races, religions, nationalities?

'A. Yes, sir.

'Q. The policy of your store as manager is not to exclude     anybody from coming in and buying these three thousand items      on account of race, nationality or religion, is that right?

'A. The only place where there has been exception, where     there is an exception, is at our lunch counter.

'Q. Oh, I see. Is that a written policy you get from     headquarters in New York?

'A. No, sir.

'Q. It is not. You don't have any memorandum in your store     that says that is a policy?

'A. No, sir.

'Q. Is it true, then, that if, that well, even if a man was     quiet enough, and a Communist, that he could sit at your      lunch counter and eat, according to the policy of your store      right now? Whether you knew he was a Commu ist or not, so his political beliefs would not have     anything to do with it, is that right?

'A. No.

'Q. Now, sir, you said that there was a policy there as to     Negroes sitting. Am I to understand that you do serve Negroes     or Americans who are Negroes, standing up?

'A. To take out, at the end of the counter, we serve     take-outs, yes, sir.

'Q. In other words, you have a lunch counter at the end of     your store?

'A. No, I said at the end, they can wait and get a package or     a meal or order a coke or hamburger and take it out.

'Q. Oh, to take out. They don't normally eat it on the     premises?

'A. They might, but usually it is to take out.

'Q. Of course, you probably have some Negro employees in your     store, in some capacity, don't you?

'A. Yes, sir.

'Q. They eat on the premises, is that right?

'A. Yes, sir.

'Q. But not at the lunch counter?

'A. No, sir.

'Q. Oh, I see, but generally speaking, you consider the     American Negro as part of the general public, is that right,      just generally speaking?

'A. Yes, sir.

'Q. You don't have any objections for him spending any amount     of money he wants to on these 3,000 items, do you?

'A. That's up to him to spend if he wants to spend.

'Q. This is a custom, as I understand it, this is a custom     instead of a law that causes you not to want him to ask for      service at the lunch counter? 'A. There is no law to my knowledge, it is merely a custom in     this community.'

C. The testimony in the following cases is less definitive with respect to why Negroes were refused service.

In Griffin v. Maryland, 378 U.S. 130, 84 S.Ct. 1769, the president of the corporations which own and operate Glen Echo Amusement Park said he would admit Chinese, Filipinos, Indians and, generally, anyone but Negroes. He did not elaborate, beyond stating that a private property owner has the right to make such a choice.

In Barr v. City of Columbia, 378 U.S. 146, 84 S.Ct. 1734, the co-owner and manager of the Taylor Street Pharmacy said Negroes could purchase in other departments of his store and that whether for business or personal reasons, he felt he had a right to refuse service to anyone.

In Williams v. North Carolina, 378 U.S. 548, 84 S.Ct. 1900, the president of Jones Drug Company said Negroes were not permitted to take seats at the lunch counter. He did say, however, that Negroes could purchase food and eat it on the premises so long as they stood some distance from the lunch counter, such as near the back door.

In Lupper v. Arkansas, 377 U.S. 989, 84 S.Ct. 1906, and Harris v. Virginia, 378 U.S. 552, 84 S.Ct. 1923, the record discloses only that the establishment did not serve Negroes.

APPENDIX III TO OPINION OF MR. JUSTICE DOUGLAS.

Corporate Business Establishments Involved In The 'Sit-in' Cases Before This Court During The 1962 Term And The 1963 Term. Reference (other than the record in each case): Moody's Industrial Manual (1963 ed.).

1. Gus Blass & Co. Department Store.

Case: Lupper v. Arkansas, 377 U.S. 989, 84 S.Ct. 1906.

Location: Little Rock, Arkansas.

Ownership: Privately owned corporation.

2. Eckerd Drugs of Florida, Inc.

Case: Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697.

Location: 17 retail drugstores throughout Southern States.

Ownership: Publicly owned corporation.

Number of shareholders: 1,000.

Stock traded: Over-the-counter market.

3. George's Drug Stores, Inc.

Case: Harris v. Virginia, 378 U.S. 552, 84 S.Ct. 1923.

Location: Hopewell, Virginia.

Ownership: Privately owned corporation.

4. Gwynn Oak Park, Inc.

Case: Drews v. Maryland, 378 U.S. 547, 84 S.Ct. 1900.

Location: Baltimore, Maryland.

Ownership: Privately owned corporation.

5. Hooper Food Company, Inc.

Case: Bell v. Maryland, 378 U.S. 226, 84 S.Ct. 1814.

Location: Several restaurants in Baltimore, Maryland.

Ownership: Privately owned corporation.

6. Howard Johnson Co.

Case: Henry v. Virginia, 374 U.S. 98, 83 S.Ct. 1685, 10     L.Ed.2d 1025.

Location: 650 restaurants in 25 States.

Ownership: Publicly owned corporation.

Number of shareholders: 15,203.

Stock traded: New York Stock Exchange.

7. Jones Drug Company, Inc.

Case: Williams v. North Carolina, 378 U.S. 548, 84 S.Ct. 1900.

Location: Monroe, North Carolina.

Ownership: Privately owned corporation.

8. Kebar, Inc. (lessee from Rakad, Inc.).

Case: Griffin v. Maryland, 378 U.S. 130, 84 S.Ct. 1770.

Location: Glen Echo Amusement Park, Maryland.

Ownership: Privately owned corporation.

9. S. H. Kress & Company.

Cases: Mitchell v. City of Charleston, 378 U.S. 551, 84 S.Ct. 1901; Avent v. North Carolina, 373 U.S. 375, 83 S.Ct. 1311,     10 L.Ed.2d 420; Gober v. City of Birmingham, 373 U.S. 374, 83      S.Ct. 1311, 10 L.Ed.2d 419; Peterson v. City of Greenville,     373 U.S. 244, 83 S.Ct. 1133, 10 L.Ed.2d 323.

Location: 272 stores in 30 States.

Ownership: Publicly owned corporation.

Number of shareholders: 8,767.

Stock traded: New York Stock Exchange.

10. Loveman's Department Store (food concession operated by     Price Candy Company of Kansas City).

Case: Gober v. City of Birmingham, supra.

Location: Birmingham, Alabama.

Ownership: Privately owned corporation.

11. McCrory Corporation.

Cases: Fox v. North Carolina, 378 U.S. 587, 84 S.Ct. 1901;     Hamm v. City of Rock Hill, 377 U.S. 988, 84 S.Ct. 1902;     Lombard v. Louisiana, 373 U.S. 267, 83 S.Ct. 1122.

Location: 1,307 stores throughout the United States.

Ownership: Publicly owned corporation.

Number of shareholders: 24,117.

Stock traded: New York Stock Exchange.

12. National White Tower System, Incorporated.

Case: Green v. Virginia, 378 U.S. 550, 84 S.Ct. 1910.

Location: Richmond, Virginia, and other cities (number     unknown).

Ownership: Apparently a privately owned corporation.

13. J. J. Newberry Co.

Case: Gober v. City of Birmingham, supra.

Location: 567 variety stores in 46 States; soda fountains,     lunch bars, cafeterias and restaurants in 371 stores.

Ownership: Publicly owned corporation.

Number of shareholders: 7,909.

Stock traded: New York Stock Exchange.

14. Patterson Drug Co.

Cases: Thompson v. Virginia, 374 U.S. 99, 83 S.Ct. 1686, 10     L.Ed.2d 1025; Wood v. Virginia, 374 U.S. 100, 83 S.Ct. 1686,     10 L.Ed.2d 1025.

Location: Lynchburg, Virginia.

Ownership: Privately owned corporation.

15. Pizitz's Department Store.

Case: Gober v. City of Birmingham, supra.

Location: Birmingham, Alabama.

Ownership: Privately owned corporation.

16. Shell's City, Inc.

Case: Robinson v. Florida, 378 U.S. 153, 84 S.Ct. 1693.

Location: Miami, Florida.

Ownership: Privately owned corporation.

17. Thalhimer Bros., Inc., Department Store.

Case: Randolph v. Virginia, 374 U.S. 97, 83 S.Ct. 1685, 10     L.Ed.2d 1025.

Location: Richmond, Virginia.

Ownership: Privately owned corporation.

18. F. W. Woolworth Company.

Case: Gober v. City of Birmingham, supra.

Location: 2,130 stores (primarily variety stores) throughout     the United States.

Ownership: Publicly owned corporation.

Number of shareholders: 90,435.

Stock traded: New York Stock Exchange.

-

APPENDIX IV TO OPINION OF MR. JUSTICE DOUGLAS.

Legal form of organization—by kind of business.

References: United States Census of Business, 1958, Vol. I.

Retail trade—Summary Statistics (1961).

A. UNITED STATES.

Individual proprietorships. 166,003. 5,202,

Individual proprietorships. 13,549. 1,294,

Cooperatives................. 9. (withheld)

Other legal forms........... 27.Do.

Partnerships............... 446. (withheld)

Cooperatives.............. .

Other legal forms............ 2. (withheld)

Individual proprietorships.. 19. (withheld)

Corporations............. 3,073. 13,245,

Cooperatives................. 1. (withheld)

Other legal forms......... .

Partnerships................ 139. (withheld)

Other legal forms............. 4. (withheld)

Individual proprietorships...

Partnerships.................

Other legal forms.......... .

[For Appendix V to opinion of DOUGLAS, J., see p. 284.]

APPENDIX V TO OPINION OF MR. JUSTICE DOUGLAS.

STATE ANTIDISCRIMINATION LAWS.

(Prepared by the United States Commission on Civil Rights.)

State accommodations employment housing schools hospitals

Colorado. 1885. 1957 1959  -

Delaware. 1963. 1960

Hawaii.. .1963

Idaho... 1961. 1961

Iowa.... 1884. 1963

Kansas.. 1874. 1961

Kentucky ..

Maryland .1963.

Massachusetts. 1865 1946  1959  1949

Michigan .1885. 1955

Missouri. .1961

Montana. 1955.

Nebraska. 1885.

North Dakota. 1961

South Dakota. 1963

Wisconsin. 1895. 1957

[Footnotes to Appendix V are on p. 285.] Appendix V to Opinion of DOUGLAS, J.

The dates are those in which the law was first enacted; the underlining means that the law is enforced by a commission. In addition to the above, the following cities in States without pertinent laws have enacted antidiscrimination ordinances: Albuquerque, N. Mex. (housing); Ann Arbor, Mich. (housing); Baltimore, Md. (employment); Beloit, Wis. (housing); Chicago, Ill. (housing); El Paso, Tex. (public accommodations); Ferguson, Mo. (public accommodations); Grand Rapids, Mich. (housing); Kansas City, Mo. (public accommodations); Louisville, Ky. (public accommodations); Madison, Wis. (housing); Oberlin, Ohio (housing); Omaha, Nebr. (employment); Peoria, Ill. (housing); St. Joseph, Mo. (public accommodations); St. Louis, Mo. (housing and public accommodations); Toledo, Ohio (housing); University City, Mo. (public accommodations); Yellow Springs, Ohio (housing); and Washington, D.C. (public accommodations and housing).

Mr. Justice GOLDBERG, with whom THE CHIEF JUSTICE joins, and with whom Mr. Justice DOUGLAS joins as to Parts IV-V, concurring.

I join in the opinion and the judgment of the Court and would therefore have no occasion under ordinary circumstances to express my views on the underlying constitutional issue. Since, however, the dissent at length discusses this constitutional issue and reaches a conclusion with which I profoundly disagree, I am impelled to state the reasons for my conviction that the Constitution guarantees to all Americans the right to be treated as equal members of the community with respect to public accommodations.

The Declaration of Independence states the American creed: 'We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.' This ideal was not fully achieved with the adoption of our Constitution because of the hard and tragic reality of Negro slavery. The Constitution of the new Nation, while heralding liberty, in effect declared all men to be free and equal-except black men who were to be neither free nor equal. This inconsistency reflected a fundamental departure from the American creed, a departure which it took a tragic civil war to set right. With the adoption, however, of the hirteenth, Fourteenth, and Fifteenth Amendments to the Constitution, freedom and equality were guaranteed expressly to all regardless 'of race, color, or previous condition of servitude.' United States v. Reese, 92 U.S. 214, 218, 23 L.Ed. 563.

The light of this American commitment to equality and the history of that commitment, these Amendments must be read not as 'legislative codes which are subject to continuous revision with the changing course of events, but as the revelation of the great purposes which were intended to be achieved by the Constitution as a continuing instrument of government.' United States v. Classic, 313 U.S. 299, 316, 61 S.Ct. 1031, 1038, 85 L.Ed. 1368. The cases following the 1896 decision in Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256, too often tended to negate this great purpose. In 1954 in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, this Court unanimously concluded that the Fourteenth Amendment commands equality and that racial segregation by law is inequality. Since Brown the Court has consistently applied this constitutional standard to give real meaning to the Equal Protection Clause 'as the revelation' of an enduring constitutional purpose.

The dissent argues that the Constitution permits American citizens to be denied access to places of public accommodation solely because of their race or color. Such a few does not do justice to a Constitution which is color blind and to the Court's decision in Brown v. Board of Education, which affirmed the right of all Americans to public equality. We cannot blind ourselves to the consequences of a constitutional interpretation which would permit citizens to be turned away by all the restaurants, or by the only restaurant, in town. The denial of the constitutional right of Negroes to access to places of public accommodation would perpetuate a caste system in the United States.

The Thirteenth, Fourteenth and Fifteenth Amendments do not permit Negroes to be considered as second-class citizens in any aspect of our public life. Under our Constitution distinctions sanctioned by law between citizens because of race, ancestry, color or religion 'are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.' Hirabayashi v. United States, 320 U.S. 81, 100, 63 S.Ct. 1375, 1385, 87 L.Ed. 1774. We make no racial distinctions between citizens in exact ng from them the discharge of public responsibilities: The heaviest duties of citizenship-military service, taxation, obedience to laws-are imposed even-handedly upon black and white. States may and do impose the burdens of state citizenship upon Negroes and the States in many ways benefit from the equal imposition of the duties of federal citizenship. Our fundamental law which insures such an equality of public burdens, in my view, similarly insures an equality of public benefits. This Court has repeatedly recognized and applied this fundamental principle to many aspects of community life.

Of course our constitutional duty is 'to construe, not to rewrite or amend, the Constitution.' Post, at 342 (dissenting opinion of Mr. Justice BLACK). Our sworn duty to construe the Constitution requires, however, that we read it to effectuate the intent and purposes of the Framers. We must, therefore, consider the history and circumstances indicating what the Civil War Amendments were in fact designed to achieve.

In 1873, in one of the earliest cases interpreting the Thirteenth and Fourteenth Amendments, this Court observed:

'(N)o one can fail to be impressed with the one pervading     purpose found in *  *  * all (these Amendments), lying at the      foundation of each, and without which none of them would have      been even suggested; we mean the freedom of the slave race,      the security and firm establishment of that freedom, and the      protection of the newly-made freeman and citizen from the      oppressions of those who had formerly exercised unlimited      dominion over him. * *  * ' Slaughter-House Cases, 16 Wall. 36,     71, 21 L.Ed. 394.

A few years later, in 1880, the Court had occasion to observe that these Amendments were written and adopted 'to raise the colored race from that condition of inferiority and servitude in which most of them had previously stood, into perfect equality of civil rights with all other persons within the jurisdiction of the States.' Ex parte Virginia, 100 U.S. 339, 344-345, 25 L.Ed. 676. In that same Term, the Court in Strauder v. West Virginia, 100 U.S. 303, 307, 25 L.Ed. 664, stated that the recently adopted Fourteenth Amendment must 'be construed liberally, to carry out the purposes of its framers.' Such opinions immediately following the adoption of the Amendments clearly reflect the contemporary understanding that they were 'to secure to the colored race, thereby invested with the rights, privileges, and responsibilities of citizenship, the enjoyment of all the civil rights that, under the law, are enjoyed by white persons * *  * .' Neal v. Delaware, 103 U.S. 370, 386, 26 L.Ed. 567.

The historical evidence amply supports the conclusion of the Government, stated by the Solicitor General in this Court, that:

'it is an inescapable inference that Congress, in     recommending the Fourteenth Amendment, expected to remove the      disabilities barring Negroes from the public conveyances and      places of public accommodation with which they were familiar,      and thus to assure Negroes an equal right to enjoy these      aspects of the public life of the community.'

The subject of segregation in public conveyances and accommodations was quite familiar to the Framers of the Fourteenth Amendment. Moreover, it appears that the contemporary understanding of the general public was that freedom from discrimination in places of public accommodation was part of the Fourteenth Amendment's promise of equal protection. This view was readily accepted by the Supreme Court of Mississippi in 1873 in Donnell v. State, 48 Miss. 661. The Mississippi Supreme Court there considered and upheld the equal accommodations provisions of Mississippi's 'civil rights' bill as applied to a Negro theater patron. Justice Simrall, speaking for the court, noted that the '13th, 14th and 15th amendments of the constitution of the United States, are the logical results of the late civil war,' id., at 675, and concluded that the 'fundamental idea and principle pervading these amendments, is an impartial equality of rights and privileges, civil and political, to all 'citizens of the United States' * *  * ,' id., at 677.

In Strauder v. West Virginia, supra, this Court had occasion to consider the concept of civil rights embodied in the Fourteenth Amendment:

'What is this but declaring that the law in the States shall     be the same for the black as for the white; that all persons,      whether colored or white, shall stand equal before the laws      of the States, and, in regard to the colored race, for whose      protection the amendment was primarily designed, that no      discrimination shall be made against them by law because of      their color? The words of the amendment, it is true, are     prohibitory, but they contain a necessary implication of a      positive immunity, or right, most valuable to the colored race,-the right to exemption from unfriendly      legislation against them distinctively as colored,-exemption      from legal discriminations, implying inferiority in civil      society, lessening the security of their enjoyment of the      rights which others enjoy, and discriminations which are      steps towards reducing them to the condition of a subject      race.' Id., 100 U.S. at 307-308.

'The Fourteenth Amendment makes no attempt to enumerate the     rights it designed to protect. It speaks in general terms,     and those are as comprehensive as possible. Its language is     prohibitory; but every prohibition implies the existence of      rights and immunities, prominent among which is an immunity      from inequality of legal protection, either for life,      liberty, or property.' Id., at 310. (Emphasis added.)

The Fourteenth Amendment was in part designed to provide a firm constitutional basis for the Civil Rights Act of 1866, 14 Stat. 27, and to place that legislation beyond the power of congressional repeal. The origins of subsequently proposed amendments and legislation lay in the 1866 bill and in a companion measure, the Freedmen's Bureau bill. The latter was addressed to States 'wherein, in consequence of any State or local law, * *  * custom, or prejudice, any of the civil rights or immunities belonging to white persons, including the right *  *  * to have full and equal benefit of all laws and proceedings for the security of person and estate, are refused or denied to negroes *  *  * .' Cong.Globe, 39th Cong., 1st Sess., 318. A review of the relevant congressional debates reveals that the concept of civil rights which lay at the heart both of the contemporary legislative proposals and of the Fourteenth Amendment encompassed the right to equal treatment in public places-a right explicitly recognized to be a 'civil' rather than a 'social' right. It was repeatedly emphasized 'that colored persons shall enjoy the same civil rights as white persons,' that the colored man should have the right 'to go where he pleases,' that he should have 'practical' freedom, and that he should share 'the rights and guarantees of the good old common law.'

In the debates that culminated in the acceptance of the Fourteenth Amendment, the theme of granting 'civil,' as distinguished from 'social,' rights constantly recurred. Although it was commonly recognized that in some areas the civil-social distinction was misty, the critical fact is that it was generally understood that 'civil rights' certainly included the right of access to places of public accommodation for these were most clearly places and areas of life where the relations of men were traditionally regulated by governments. Indeed, the opponents both of the Freedmen's Bureau bill and of the Civil Rights Act of 1866 frequently complained, without refutation or contradiction, that these measures would grant Negroes the right to equal treatment in places of public accommodation. Thus, for example, Senator Davis of Kentucky, in opposing the Freedmen's Bureau bill, protested that 'commingling with (white persons) in hotels, theaters, steamboats, and other civil rights and privileges, were always forbid to free negroes, until * *  * ' recently granted by Massachusetts.

An 1873 decision of the Supreme Court of Iowa clearly reflects the contemporary understanding of the meaning of the Civil Rights Act of 1866. In Coger v. North West. Union Packet Co., 37 Iowa 145, a colored woman sought damages for assault and battery occurring when the officers of a Mississippi River steamboat ordered that she be removed from a dining table in accordance with a practice of segregation in the main dining room on the boat. In giving judgment for the plaintiff, the Iowa Supreme Court quoted the Civil Rights Act of 1866 and concluded that:

'Under this statute, equality in rights is secured to the     negro. The language is comprehensive and includes the right     to property and all rights growing out of contracts. It     includes within its broad terms every right arising in the      affairs of life. The right of the passenger under the     contract of transportation with the carrier is included      therein. The colored man is guarantied equality and equal     protection of the laws with his white neighbor. These are the     rights secured to him as a citizen of the United States,      without regard to his color, and constitute his privileges,      which are secured by (the Fourteenth Amendment).' Id., at      156.

The Court then went on to reject the contention that the rights asserted were 'social, and * *  * not, therefore, secured by the constitution and statutes, either of the State or of the United States.' Id., at 157.

Underlying the congressional discussions, and at the heart of the Fourteenth Amendment's guarantee of equal protection, was the assumption that the State by statute or by 'the good old common law' was obligated to guarantee all citizens access to places of public accommodation. This obligation was firmly rooted in ancient Anglo-American tradition. In his work on bailments, Judge Story spoke of this tradition:

'An innkeeper is bound * *  * to take in all travellers and      wayfaring persons, and to entertain them, if he can      accommodate them, for a reasonable compensation; and he must      guard their goods with proper diligence. * *  * If an      innkeeper improperly refuses to receive or provide for a      guest, he is liable to be indicted therefor. * *  * ' Story,      Commentaries on the Law of Bailments (Schouler, 9th ed.,      1878) § 476.

'The first and most general obligation on (carriers of     passengers) is to carry passengers whenever they offer      themselves, and are ready to pay for their transportation. This results from their setting themselves up, like     innkeepers, and common carriers of goods, for a common public      employment on hire. They are no more at liberty to refuse a     passenger, if they have sufficient room and accommodations,      than an innkeeper is to refuse suitable room and      accommodations to a guest. * *  * ' Id., at §§ 590, 591.

It was in this vein that the Supreme Court of Mississippi spoke when in 1873 it applied the equal accommodations provisions of the State's civil rights bill to a Negro refused admission to a theater:

'Among those customs which we call the common law, that have     come down to us from the remote past, are rules which have a      special application to those who sustain a quasi public      relation to the community. The wayfarer and the traveler had     a right to demand food and lodging from the inn-keeper; the      common carrier was bound to accept all passengers and goods      offered for transportation, according to his means. So, too,     all who applied for admission to the public shows and      amusements, were entitled to admission, and in each instance,      for a refusal, an action on the case lay, unless sufficient      reason were shown. The statute deals with subjects which have     always been under legal control.' Donnell v. State, 48 Miss. 661, 680-681.

In a similar manner, Senator Sumner, discussing the Civil Rights Act of 1875, referred to and quoted from Holingshed, Story, Kent and Parsons on the common-law duties of innkeepers and common carriers to treat all alike. Cong.Globe, 42d Cong., 2d Sess., 382 383. With regard to 'theaters and places of public amusement,' the Senator observed that:

'Theaters and other places of public amusement, licensed by     law, are kindred to inns or public conveyances, though less      noticed by jurisprudence. But, like their prototypes, they     undertake to provide for the public under sanction of law. They are public institutions, regulated if not created by     law, enjoying privileges, and in consideration thereof,      assuming duties not unlike those of the inn and the public      conveyance. From essential reason, the rule should be the     same with all. As the inn cannot close its doors, or the public conveyance refuse a seat to any paying     traveler, decent in condition, so must it be with the theater      and other places of public amusement. Here are institutions     whose peculiar object is the 'pursuit of happiness,' which      has been p aced among the equal rights of all.' Id., at      383.

The first sentence of § 1 of the Fourteenth Amendment, the spirit of which pervades all of the Civil War Amendments, was obviously designed to overrule Dred Scott v. Sandford, 19 How. 393, 15 L.Ed. 691, and to ensure that the constitutional concept of citizenship with all attendant rights and privileges would henceforth embrace Negroes. It follows that Negroes as citizens necessarily became entitled to share the right, customarily possessed by other citizens, of access to public accommodations. The history of the affirmative obligations existing at common law serves partly to explain the negative-'deny to any person' language of the Fourteenth Amendment. For it was assumed that under state law, when the Negro's disability as a citizen was removed, he would be assured the same public civil rights that the law had guaranteed white persons. This view pervades the opinion of the Supreme Court of Michigan in Ferguson v. Gies, 82 Mich. 358, 46 N.W. 718, decided in 1890. That State had recently enacted a statute prohibiting the denial to any person, regardless of race, of 'the full and equal accommodations * *  * and privileges of *  *  * restaurants *  *  * and all other places of public accommodation and amusement *  *  * .' A Negro plaintiff brought an action for damages arising from the refusal of a restaurant owner to serve him at a row of tables reserved for whites. In upholding the plaintiff's claim, the Michigan court observed:

'The negro is now, by the Constitution of the United States,     given full citiz nship with the white man, and all the rights      and privileges of citizenship attend him wherever he goes. Whatever right a white man has in a public place, the black man has also, because of     such citizenship.' Id., 82 Mich. at 364, 46 N.W., at 720.

The court then emphasized that in light of this constitutional principle the same result would follow whether the claim rested on a statute or on the common law:

'The common law as it existed in this State before the     passage of this statute, and before the colored man became a      citizen under our Constitution and laws, gave to the white      man a remedy against any unjust discrimination to the citizen      in all public places. It must be considered that, when this     suit was planted, the colored man, under the common law of      this State, was entitled to the same rights and privileges in      public places as the white man, and he must be treated the      same there; and that his right of action for any injury      arising from an unjust discrimination against him is just as      perfect and sacred in the courts as that of any other      citizen. This statute is only declaratory of the common law,     as I understand it now to exist in this State.' Id., 82 Mich. at 365, 46 N.W., at 720.

Evidence such as this demonstrates that Mr. Justice Harlan, dissenting in the Civil Rights Cases, 109 U.S. 3, 26, 3 S.Ct. 18, 27 L.Ed. 835, was surely correct when he observed:

'But what was secured to colored citizens of the United     States-as between them and their respective States-by the      national grant to them of State citizenship? With what     rights, privileges, or immunities did this grant invest them? There is one, if there be no other-exemption from race     discrimination in respect of any civil right belonging to      citizens of the white race in the same State. That, surely, is their     constitutional privilege when within the jurisdiction of      other States. And such must be their constitutional right, in     their own State, unless the recent amendments be splendid      baubles, thrown out to delude those who deserved fair and      generous treatment at the hands of the nation. Citizenship in     this country necessarily imports at least equality of civil      rights among citizens of every race in the same State. It is     fundamental in American citizenship that, in respect of such      rights, there shall be no discrimination by the State, or its      officers, or by individuals or corporations exercising public      functions or authority, against any citizen because of his      race or previous condition of servitude.' Id., 109 U.S., at      48, 3 S.Ct., at 48.

The Framers of the Fourteenth Amendment, reacting against the Black Codes, made certain that the States could not frustrate the guaranteed equality by enacting discriminatory legislation or by sanctioning discriminatory treatment. At no time in the consideration of the Amendment was it suggested that the States could achieve the same prohibited result by withdrawing the traditional right of access to public places. In granting Negroes citizenship and the equal protection of the laws, it was never thought that the States could permit the proprietors of inns and public places to restrict their general invitation to the public and to citizens in order to exclude the Negro public and Negro citizens. The Fourteenth Amendment was therefore cast in terms under which judicial power would come into play where the State withdrew or otherwise denied the guaranteed protection 'from legal discriminations, implying inferiority in civil society, lessening the security of (the Negroes') enjoyment of the rights which others enjoy * *  * .' Strauder v. West Virginia, 100 U.S., at 308.

Thus a fundamental assumption of the Fourteenth Amendment was that the States would continue, as they had for ages, to enforce the right of citizens freely to enter public places. This assumption concerning the affirmative duty attaching to places of public accommodation was so rooted in the experience of the white citizenry that law and custom blended together indistinguishably. Thus it seemed natural for the Supreme Court of Mississippi, considering a public accommodations provision in a civil rights statute, to refer to 'those customs which we call the common law, that have come down to us from the remote past,' Donnell v. State, 48 Miss., at 680, and thus it seems significant that the various proposals for federal legislation often interchangeably referred to discriminatory acts done under 'law' or under 'custom.' In sum, then, it was understood that under the Fourteenth Amendment the duties of the proprietors of places of public accommodation would remain as they had long been and that the States would now be affirmatively obligated to insure that these rights ran to Negro as well as white citizens.

The Civil Rights Act of 1875, enacted seven years after the Fourteenth Amendment, specifically provided that all citizens must have 'the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement * *  * .' 18 Stat. 335. The constitutionality of this federal legislation was reviewed by this Court in 1883 in the Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18. The dissent in the present case purports to follow the 'state action' concept articulated in that early decision. There the Court had declared that under the Fourteenth Amendment:

'It is State action of a particular character that is     prohibited. Individual invasion of individual rights is not     the subject-matter of the amendment. It has a deeper and     broader scope. It nullifies and makes void all State     legislation, and State action of every kind, which impairs      the privileges and immunities of citizens of the United      States, or which injures them in life, liberty or property      without due process of law, or which denies to any of them the equal protection of the laws.' 109 U.S., at 11, 3 S.Ct., at 21. (Emphasis added.)

Mr. Justice Bradley, writing for the Court over the strong dissent of Mr. Justice Harlan, held that a proprietor's racially motivated denial of equal access to a public accommodation did not, without more, involve state action. It is of central importance to the case at bar that the Court's decision was expressly predicated:

'on the assumption that a right to enjoy equal accommodation     and privileges in all inns, public conveyances, and places of      public amusement, is one of the essential rights of the      citizen which no State can abridge or interfere with.' Id.,      109 U.S., at 19, 3 S.Ct., at 27.

'Innkeepers and public carriers, by the laws of all the     States, so far as we are aware, are bound, to the extent of their facilities, to furnish proper accommodation      to all unobjectionable persons who in good faith apply for      them.' Id., 109 U.S., at 25, 38 S.Ct., at 31.

This assumption, whatever its validity at the time of the 1883 decision, has proved to be unfounded. Although reconstruction ended in 1877, six years before the Civil Rights Cases, there was little immediate action in the South to establish segregation, in law or in fact, in places of public accommodation. This benevolent, or perhaps passive, attitude endured about a decade and then in the late 1880's States began to enact laws mandating unequal treatment in public places. Finally, three-quarters of a century later, after this Court declared such legislative action invalid, some States began to utilize and make available their common law to sanction similar discriminatory treatment.

A State applying its statutory or common law to deny rather than protect the right of access to public accommodations has clearly made the assumption of the opinion in the Civil Rights Cases inapplicable and has, as the author of that opinion would himself have recognized, denied the constitutionally intended equal protection. Indeed, in light of the assumption so explicitly stated in the Civil Rights Cases, it is significant that Mr. Justice Bradley, who spoke for the Court, had earlier in correspondence with Circuit Judge Woods expressed the view that the Fourteenth Amendment 'not only prohibits the making or enforcing of laws which shall abridge the privileges of the citizen; but prohibits the states from denying to all persons within its jurisdiction the equal protection of the laws.' In taking this position, which is consistent with his opinion and the assumption in the Civil Rights Cases, he concluded that: 'Denying includes inaction as well as action. And denying the equal protection of the laws includes the omission to protect, as well as the omission to pass laws for protection.' These views are fully consonant with this Court's recognition that state conduct which might be described as 'inaction' can nevertheless constitute responsible 'state action' within the meaning of the Fourteenth Amendment. See, e.g., Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265; Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161; Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152; Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586.

In the present case the responsibility of the judiciary in applying the principles of the Fourteenth Amendment is clear. The State of Maryland has failed to protect petitioners' constitutional right to public accommodations and is now prosecuting them for attempting to exercise that right. The decision of Maryland's highest court in sustaining these trespass convictions cannot be described as 'neutral,' for the decision is as affirmative in effect as if the State had enacted an unconstitutional law explicitly authorizing racial discrimination in places of public accommodation. A State, obligated under the Fourteenth Amendment to maintain a system of law in which Negroes are not denied protection in their claim to be treated as equal members of the community, may not use its criminal trespass laws to frustrate the constitutionally granted right. Nor, it should be added, may a State frustrate this right by legitimating a proprietor's attempt at self-help. To permit self-help would be to disregard the principle that '(t)oday, no less that 50 years ago, the solution to the problems growing out of race relations 'cannot be promoted by depriving citizens of their constitutional rights and privileges,' Buchanan v. Warley * *  * 245 U.S. (60), at 80-81, 38 S.Ct. (16), at 20, 62 L.Ed. 149.' Watson v. City of Memphis, 373 U.S. 526, 539, 83 S.Ct. 1314, 1322, 10 L.Ed.2d 529. As declared in Cooper v. Aaron, 358 U.S. 1, 16, 78 S.Ct. 1401, 1409, 3 L.Ed.2d 5, 19 'law and order are not * *  * to be preserved by depriving the Negro *  *  * of (his) constitutional rights.'

In spite of this, the dissent intimates that its view best comports with the needs of law and order. Thus it is said: 'It would betray our whole plan for a tranquil and orderly society to say that a citizen, because of hispersonal prejudices, habits, attitudes, or beliefs, is cast outside the law's protection and cannot call for the aid of officers sworn to uphold the law and preserve the peace.' Post, at 327-328. This statement, to which all will readily agree, slides over the critical question: Whose conduct is entitled to the 'law's protection'? Of course every member of this Court agrees that law and order must prevail; the question is whether the weight and protective strength of law and order will be cast in favor of the claims of the proprietors or in favor of the claims of petitioners. In my view the Fourteenth Amendment resolved this issue in favor of the right of petitioners to public accommodations and it follows that in the exercise of that constitutionally granted right they are entitled to the 'law's protection.' Today, as long ago, '(t)he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws * *  * .' Marbury v. Madison, 1 Cranch 137, 163, 2 L.Ed. 60.

My Brother DOUGLAS convincingly demonstrates that the dissent has constructed a straw man by suggesting that this case involves 'a property owner's right to choose his social or business associates.' Post, at 343. The restaurant involved in this case is concededly open to a large segment of the public. Restaurants such as this daily open their doors to millions of Americans. These establishments provide a public service as necessary today as the inns and carriers of Blackstone's time. It should be recognized that the claim asserted by the Negro petitioners concerns such public establishments and does not infringe upon the rights of property owners or personal associational interests.

Petitioners frankly state that the 'extension of constitutional guarantees to the authentically private choices of man is wholly unacceptable, and any constitutional theory leading to hat result would have reduced itself to absurdity.' Indeed, the constitutional protection extended to privacy and private association assures against the imposition of social equality. As noted before, the Congress that enacted the Fourteenth Amendment was particularly conscious that the 'civil' rights of man should be distinguished from his 'social' rights. Prejudice and bigotry in any form are regrettable, but it is the constitutional right of every person to close his home or club to any person or to choose his social intimates and business partners solely on the basis of personal prejudices including race. These and other rights pertaining to privacy and private association are themselves constitutionally protected liberties.

We deal here, however, with a claim of equal access to public accommodations. This is not a claim which significantly impinges upon personal associational interests; nor is it a claim infringing upon the control of private property not dedicated to public use. A judicial ruling on this claim inevitably involves the liberties and freedoms both of the restaurant proprietor and of the Negro citizen. The dissent would hold in effect that the restaurant proprietor's interest in choosing customers on the basis of race is to be preferred to the Negro's right to equal treatment by a business serving the public. The history and purposes of the Fourteenth Amendment indicate, however, that the Amendment resolves this apparent conflict of liberties in favor of the Negro's right to equal public accommodations. As the Court said in Marsh v. Alabama, 326 U.S. 501, 506, 66 S.Ct. 276, 278, 90 L.Ed. 265: 'The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.' The broad acceptance of the public in this and in other restaurants clearly demonstrates that the proprietor's interest in private or unrestricted association is slight. The relationship between the modern innkeeper or restaurateur and the customer is relatively impersonal and evanescent. This is highlighted by cases such as Barr v. City of Columbia, 378 U.S. 146, 84 S.Ct. 1734; Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, and Robinson v. Florida, 378 U.S. 153, 84 S.Ct. 1693, in which Negroes are invited into all departments of the store but nonetheless ordered, in the name of private association or property rights, not to purchase and eat food, as other customers do, on the premises. As the history of the common law and, indeed, of our own times graphically illustrates, the interests of proprietors of places of public accommodation have always been adapted to the citizen's felt need for public accommodations, a need which is basic and deep-rooted. This history and the purposes of the Fourteenth Amendment compel the conclusion that the right to be served in places of public accommodation regardless of color cann t constitutionally be subordinated to the proprietor's interest in discriminatorily refusing service.

Of course, although the present case involves the right to service in a restaurant, the fundamental principles of the Fourteenth Amendment apply with equal force to other places of public accommodation and amusement. Claims so important as those presented here cannot be dismissed by asserting that the Fourteenth Amendment, while clearly addressed to inns and public conveyances, did not contemplate lunch counters and soda fountains. Institutions such as these serve essentially the same needs in modern life as did the innkeeper and the carrier at common law. It was to guard against narrow conceptions that Chief Justice Marshall admonished the Court never to forget 'that it is a constitution we are expounding * *  * a constitution intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.' M'Culloch v. Maryland, 4 Wheat. 316, 407, 415, 4 L.Ed. 579. Today, as throughout the history of the Court, we should remember that 'in determining whether a provision of the Constitution applies to a new subject matter, it is of little significance that it is one with which the framers were not familiar. For in setting up an enduring framework of government they undertook to carry out for the indefinite future and in all the vicissitudes of the changing affairs of men, those fundamental purposes which the instrument itself discloses.' United States v. Classic, 313 U.S. 299, 316, 61 S.Ct. 1031, 1038, 85 L.Ed. 1368.

In my view the historical evidence demonstrates that the traditional rights of access to places of public accommodation were quite familiar to Congressmen and to the general public who naturally assumed that the Fourteenth Amendment extended these traditional rights to Negroes. But even if the historical evidence were not as convincing as I believe it to be, the logic of Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, based as it was on the fundamental principle of constitutional interpretation proclaimed by Chief Justice Marshall, requires that petitioners' claim be sustained.

In Brown, after stating that the available history was 'inconclusive' on the specific issue of segregated public schools, the Court went on to say:

'In approaching this problem, we cannot turn the clock back     to 1868 when the Amendment was adopted, or even to 1896 when      Plessy v. Ferguson was written. We must consider public     education in the light of its full development and its      present place in American life throughout the Nation. Only in     this way can it be determined if segregation in public      schools deprives these plaintiffs of the equal protection of      the laws.' 347 U.S., at 492-493, 74 S.Ct., at 691.

The dissent makes no effort to assess the status of places of public accommodation 'in the light of' their 'full development and * *  * present place' in the life of American citizens. In failing to adhere to that approach the dissent ignores a pervasive principle of constitutional adjudication and departs from the ultimate logic of Brown. As Mr. Justice Holmes so aptly said:

'(W)hen we are dealing with words that a so are a constituent     act, like the Constitution of the United States, we must realize that they have called into life a      being the development of which could not have been foreseen      completely by the most gifted of its begetters. It was enough     for them to realize or to hope that they had created an      organism; it has taken a century and has cost their      successors much sweat and blood to prove that they created a      nation. The case before us must be considered in the light of     our whole experience and not merely in that of what was said      a hundred years ago.' Missouri v. Holland, 252 U.S. 416, 433,      40 S.Ct. 382, 383, 64 L.Ed. 641.

CONCLUSION.

The constitutional right of all Americans to be treated as equal members of the community with respect to public accommodations is a civil right granted by the people in the Constitution-a right which 'is too important in our free society to be stripped of judicial protection.' Cf. Wesberry v. Sanders, 376 U.S. 1, 7, 84 S.Ct. 526, 529, 11 L.Ed.2d 481; Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663. This is not to suggest that Congress lacks authority under § 5 of the Fourteenth Amendment, or under the Commerce Clause, Art. I, § 8, to implement the rights protected by § 1 of the Fourteenth Amendment. In the give-and-take of the legislative process, Congress can fashion a law drawing the guidelines necessary and appropriate to facilitate practical administration and to distinguish between genuinely public and private accommodations. In contrast, we can pass only on justiciable issues coming here on a case-to-case basis.

It is, and should be, more true today than it was over a century ago that '(t) he great advantage of the Americans is that * *  * they are born equal' and that in the eyes of the law they 'are all of the same estate.' The first Chief Justice of the United States, John Jay, spoke of the 'free air' of American life. The great purpose of the Fourteenth Amendment is to keep it free and equal. Under the Constitution no American can, or should, be denied rights fundamental to freedom and citizenship. I therefore join in reversing these trespass convictions.

Mr. Justice BLACK, with whom Mr. Justice HARLAN and Mr. Justice WHITE, join, dissenting.