The question as to whether the equal enjoyment of the accommodations in inns, conveyances, and places of amusement was an essential right of the citizen which no state could abridge or interfere with, Justice Bradley declined to examine on the ground that it was not necessary to the decision of the case. He did, however, inquire into the proposition as to whether Congress, in enforcing the Thirteenth Amendment abolishing slavery and involuntary servitude, could secure the social equality contemplated by the act, under the color of sweeping away all the badges and incidents of slavery. And on this point he came to the conclusion that mere discriminations on account of race or color could not be regarded as badges of slavery. "There were," he added, "thousands of free colored people in this country before the abolition of slavery, enjoying all of the essential rights of life, liberty, and property the same as white citizens; and yet no one at that time thought that it was any invasion of his personal status as a freeman because he was not admitted to all of the privileges enjoyed by white citizens, or because he was subjected to discriminations in the enjoyment of accommodations in inns, public conveyances, and places of amusement."
Clearly, there was no authority in either the Thirteenth or Fourteenth Amendment for the section of the Civil Rights Act relative to inns, conveyances, and places of amusement, at least so far as its operation in the several states was concerned. If, however, any state should see fit to make or authorize unlawful discriminations amenable to the prohibitions of the Fourteenth Amendment, Congress had the power to afford a remedy or the courts in enforcing the Amendment could give judicial relief. Thus, while the Justice did not definitely say that the elements of social equality provided in the Civil Rights Act were not guaranteed by the Fourteenth Amendment, his line of reasoning and his language left little doubt as to what was the view of the Court.
Section four of the Civil Rights Act forbidding, under penalty, discrimination against any person on account of race, color, or previous condition of servitude in the selection of jurors had been passed upon by the Supreme Court in the case of _Ex parte_ Virginia, decided in 1879, in which the section was held to be constitutional as providing not a code of municipal law for the regulation of private rights, but a mode of redress against the operation of state laws. The ground of distinction between the two cases is clear. A section forbidding discrimination in inns and conveyances is in the nature of a code of private law, but a section forbidding discrimination in the selection of jurors under penalty simply provides a mode of redress against violations of the Fourteenth Amendment by state authorities.