In his dissenting opinion, Justice John Marshall Harlan criticized the majority opinion for adopting a narrow interpretation of the Thirteenth and Fourteenth Amendments, which undermined the intention behind these constitutional changes, and instead argued that the Civil Rights Act of 1875, which sought to prevent racial discrimination in public accommodations such as inns, theaters, and public conveyances, was within Congress’ power to enforce the rights guaranteed by these amendments.

Harlan believed that the majority erred in its understanding of the scope and purpose of the Thirteenth Amendment, asserting that “[i]t was assumed that the power vested in Congress to enforce the amendment by appropriate legislation clothes Congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States.” In his view, the denial of equal access to public accommodations based on race was a badge of slavery, which Congress had the authority to abolish.

Harlan also addressed the Fourteenth Amendment, emphasizing its role in protecting the civil rights of all citizens against discriminatory state action. He maintained that this amendment empowered Congress to enact laws that would ensure equal protection under the law for all citizens, regardless of race. Harlan criticized the majority for limiting the amendment’s reach to state action only and argued that Congress could address private discriminatory actions if they amounted to the kind of harm the amendment sought to prevent. He explained, “[i]t is not the words of the law but the internal sense of it that makes the law: the letter of the law is the body; the sense and reason of the law is the soul.”

Furthermore, Harlan expressed concern that the majority’s decision would effectively render the Thirteenth and Fourteenth Amendments meaningless in protecting the rights of black Americans. He noted that by invalidating the Civil Rights Act of 1875, the Court was stripping Congress of the power to enforce civil rights protections and leaving individuals vulnerable to racial discrimination without adequate legal recourse. He warned, “[i]f the nation has not the power to correct wrongs by legislation, when their correction is essential to the security of rights inhering in the freedom established by the supreme law of the land, it is in vain to expect such legislation from the States.” Harlan ultimately concluded that the Thirteenth and Fourteenth Amendments granted Congress the authority to enact legislation like the Civil Rights Act of 1875 to protect individuals from racial discrimination in public accommodations, believing that the majority’s decision undermined the spirit of these amendments and failed to uphold the constitutional promise of equality and freedom for all citizens.