1. Civil Rights Act of 1875, 18 Stat. 335 (1875); Civil Rights Cases, 109 U.S. 3 (1883); Plessy v. Ferguson, 163 U.S. 537 (1896); Civil Rights Act of 1964,78 Stat. 241 (1964); King, Martin Luther Jr, “Letter From Birmingham Jail,” in Why We Can't Wait (New York: Harper & Row, 1964), 81.Google Scholar

2. Notably, Willard Hurst entertained the idea that the development of the automobile and the corresponding growth of the hotel industry granted “new importance to the law of innkeepers” and made “[d]iscrimination on racial, national, or religious grounds, in serving the traveling public…a greater problem.” See Hurst, “Technology and the Law: The Automobile” (unpublished 1949 manuscript), cited in William J. Novak, “Law, Capitalism, and the Liberal State: The Historical Sociology of Hurst, James Willard,” Law and History Review 18 (2000): 109–10Google Scholar. Hurst was correct about the hotel and innkeeper law, though as I shall demonstrate, the change had taken place many decades earlier than he supposed.

3. The “Woodward thesis” stated first, that legally enforced racial segregation did not appear in the South immediately after Emancipation, but rather was imposed only after about 1890; and second, that before this happened, there had been realistic and partially explored historical alternatives to the final outcome of de jure separation of black and white Americans. See Woodward, C. Vann, The Strange Career of Jim Crow (New York: Oxford University Press, 1955Google Scholar), chap. 1;Rabinowitz, Howard N., “More than the Woodward Thesis: Assessing The Strange Career of Jim Crow,” Journal of American History 75 (1988): 842Google Scholar. For a detailed historiography and extensive bibliography of this debate, see Rabinowitz, 845-50. Key works includeLitwack, Leon F., North of Slavery: The Negro in the Free States, 1790-1860 (Chicago: University of Chicago Press, 1961Google Scholar);Wade, Richard C., Slavery in the Cities: The South, 1820-1860 (New York: Oxford University Press, 1964Google Scholar);Williamson, Joel, After Slavery: The Negro in South Carolina During Reconstruction, 1861-1877 (Chapel Hill: University of North Carolina Press, 1965Google Scholar);Blassingame, John W., Black New Orleans, 1860-1880 (Chicago: University of Chicago Press, 1973Google Scholar);Rabinowitz, Howard N., Race Relations in the Urban South, 1865-1890 (New York: Oxford University Press, 1978Google Scholar);Ayers, Edward L., The Promise of the New South: Life after Reconstruction (New York: Oxford University Press, 1992)Google Scholar.

4. But legal historians increasingly suspect that Plessy's actual jurisprudential importance has been greatly exaggerated: see Riegel, Stephen J., “The Persistent Career of Jim Crow: Lower Federal Courts and the ‘Separate but Equal’” Doctrine, 1865-1896,” American Journal of Legal History 28 (1984): 18–40CrossRefGoogle Scholar;Lofgren, Charles A., The Plessy Case: A Legal-Historical Interpretation (New York: Oxford University Press, 1987Google Scholar); Barbara Young Welke, “When All the Women Were White, and All the Blacks Were Men: Gender, Class, Race, and the Road to Plessy, 1855-1914,” Law and History Review 13 (1995): 261-316 andRecasting American Liberty: Gender, Race, Law, and the Railroad Revolution, 1865-1920 (Cambridge: Cambridge University Press, 2001)Google Scholar.

5. See, for example, Earl M. Maltz, “‘Separate but Equal’ and the Law of Common Carriers in the Era of the Fourteenth Amendment, ,” Rutgers Law Journal 17 (1986): 553–68Google Scholar;Minter, Patricia Hagler, “The Failure of Freedom: Class, Gender, and the Evolution of Segregated Transit Law in the Nineteenth-Century South,” Chicago-Kent Law Review 70 (1995): 993–1009Google Scholar;Mack, Kenneth W., “Law, Society, Identity, and the Making of the Jim Crow South,” Law and Social Inquiry 24 (1999): 377–409CrossRefGoogle Scholar. For an account that all but ignores the common law, seeCortner, Richard C., Civil Rights and Public Accommodations: The Heart of Atlanta and McClung Cases (Lawrence: University Press of Kansas, 2001Google Scholar). On law and space, seeBlomley, Nicholas K., Law, Space, and the Geographies of Power (New York: Guilford Press, 1994Google Scholar) andDelaney, David, Race, Place and the Law, 1836-1948 (Austin: University of Texas Press, 1998)Google Scholar.

6. Key texts in the historical debate over American liberalism include Oscar Handlin and Handlin, Mary Flug, Commonwealth: A Study of the Role of Government in the American Economy: Massachusetts, 1774-1861 (Cambridge: Harvard University Press, 1947Google Scholar);Hartz, Louis, The Liberal Tradition in America: An Interpretation of American Political Thought Since the Revolution (New York: Harcourt, Brace, 1955Google Scholar);MacPherson, C. B., The Political Theory of Possessive Individualism (Oxford: Clarendon Press, 1962Google Scholar);Bailyn, Bernard, The Ideological Origins of the American Revolution (Cambridge: Harvard University Press, 1967Google Scholar);Wood, Gordon S., The Creation of the American Republic, 1776-1787 (Chapel Hill: University of North Carolina Press, 1969Google Scholar);Davis, David Brion, The Problem of Slavery in an Age of Revolution, 1770-1832 (Ithaca: Cornell University Press, 1975Google Scholar);Appleby, Joyce, Capitalism and a New Social Order: The Republican Vision of the 1790s (New York: New York University Press, 1984Google Scholar) andLiberalism and Republicanism in the Historical Imagination (Cambridge, Mass.: Harvard University Press, 1992Google Scholar);Skowronek, Stephen, Building a New American State: The Expansion of National Administrative Capacities, 1877-1920 (Cambridge: Cambridge University Press, 1982CrossRefGoogle Scholar);McDonald, Forrest, Novus Ordo Seclorum: The Intellectual Origins of the Constitution (Lawrence: University Press of Kansas, 1985)Google Scholar;Kloppenberg, James T., “The Virtues of Liberalism: Christianity, Republicanism, and Ethics in Early American Political Discourse,” Journal of American History 74 (1987): p 9–33CrossRefGoogle ScholarandThe Virtues of Liberalism (New York: Oxford University Press, 1998Google Scholar), especially chaps. 3, 4, 8, 9;Rodgers, Daniel T., “Republicanism: The Career of a Concept,” Journal of American History 79 (1992): 11–38CrossRefGoogle Scholar. For the intersection of this debate with legal history, see especially Christopher Tomlins,Law, Labor, and Ideology in the Early American Republic (Cambridge: Cambridge University Press, 1993Google Scholar);Novak, William J., The People's Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1996Google Scholar);Stanley, Amy, From Bondage to Contract: Wage Labor, Marriage, and the Market in the Age of Slave Emancipation (Cambridge: Cambridge University Press, 1998CrossRefGoogle Scholar). Among political theorists, questions about liberalism are often situated within a larger scholarly debate about civil society. Key works in this literature includeRawls, John, A Theory of Justice (Cambridge: Harvard University Press, 1971Google Scholar);Dworkin, Ronald, Taking Rights Seriously (Cambridge: Harvard University Press, 1977Google Scholar);Sandel, Michael J., Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1982Google Scholar);Walzer, Michael, Spheres of Justice (New York: Basic Books, 1983Google Scholar);MacIntyre, Alisdair, After Virtue (South Bend: University of Notre Dame Press, 1984Google Scholar);Habermas, Jürgen, Moral Consciousness and Communicative Action, trans. Christian Lenhardt and Shierry Weber Nicholson (Cambridge: MIT Press, 1990Google Scholar);Cohen, Jean L. and Arato, Andrew, Civil Society and Political Theory (Cambridge: MIT Press, 1994Google Scholar);Gray, John, Enlightenment's Wake: Politics and Culture at the Close of the Modern Age (New York: Routledge, 1995)CrossRefGoogle Scholar.

7. Foner, Eric, Reconstruction: America's Unfinished Revolution, 1863-1877 (New York: Harper & Row, 1988), xxiii-xxiv, 602–12Google Scholar, and generally;Foner, , The Story of American Freedom (New York: Norton, 1998), 95–113Google Scholar;Kelly, Alfred H., Harbison, Winfred A., and Belz, Herman, The American Constitution: Its Origins and Development (New York: Norton, 1991), 319–61Google Scholar;Kaczorowski, Robert J., The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866-1876 (Dobbs Ferry, N.Y.: Oceana, 1985)Google Scholar;Nelson, William E., The Fourteenth Amendment: From Political Principle to Judicial Doctrine (Cambridge: Harvard University Press, 1988Google Scholar);Amar, Akhil Reed, The Bill of Rights: Creation and Reconstruction (New Haven: Yale University Press, 2000)Google Scholar.

8. Foner, , Reconstruction, 368–72Google Scholar;Vincent, Charles, Black Legislators in Louisiana during Reconstruction (Baton Rouge: Louisiana State University Press, 1976), 92–97Google Scholar;Woodward, , Strange Career, 27–28Google Scholar;The Revised Statute Laws of the State of Louisiana (New Orleans: Bloomfield & Co., 1876), 128–29Google Scholar, 441-43;A Digest of the Statutes of Arkansas (Little Rock: Little Rock Print. & Pub., 1874), 257–60Google Scholar.

9. Congressional Globe, 41st Congress, 2nd Session, 13 May 1870, 3434; Congressional Globe, 42nd Congress, 1st Session, 9 March 1871, 21; Congressional Globe, 42nd Congress, 2nd Session, 20 December 1871, 244. Note that there had been an earlier federal enactment, the Civil Rights Act of 1866, but its requirement of equal protection had been made a part of the Constitution with the passage of the Fourteenth Amendment. Alfred Avins's “The Civil Rights Act of 1875: Some Reflected Light on the Fourteenth Amendment and Public Accommodations,” Columbia Law Review 66 (1964): 873–915Google Scholar, provides a useful overview of the Congressional debates over the Act, though Avins was apparently writing in opposition to the Civil Rights Act of 1964.

10. The issue of state action under the Fourteenth Amendment was raised because apart from “common schools and other public institutions of learning,” which were unmistakably state institutions, other establishments covered by the proposed civil rights bill were technically privately owned concerns.

11. This is not to suggest that inns preceded carriers each and every time they were mentioned. In some cases this order was reversed, including in the first draft of the proposed Act. But once the debate began in earnest and the wording of the Act was changed on 18 January 1872 to mention inns before carriers (the form in which it was finally enacted), Sumner and other supporters of the bill gave precedence to the law of innkeepers. Congressional Globe, 42nd Congress, 2nd Session, 22 January 1872, 487.

12. Congressional Globe, 42nd Congress, 1st Session, 20 December 1871, 242; Congressional Globe, 42nd Congress, 2nd Session, 15 January 1872, 381-85; Congressional Record, 43rd Congress, 1st Session, 29 April 1874, 3452-53; Congressional Record, 43rd Congress, 1st Session, 19 December 1873, 340 (Vol. 2, Pt. 1); Congressional Record, 43rd Congress, 1st Session, 6 January 1874, 408 (Vol. 2, Pt. 1). For further examples, see Congressional Globe, 42nd Congress, 2nd Session, 6 February 1872, 843-44; Congressional Record, 43rd Congress, 1st Session, 6 January 1874, 423-24, 427 (Vol. 2, Pt. 1).

13. Story, Joseph, Commentaries on the Law of Bailments (Boston: Little and Brown, 1851Google Scholar); McCrea v. Marsh, 78 Mass. 211 (1858) and Burton v. Scherpf, 83 Mass. 133 (1861), pleadings for which are kept at the Social Law Library, Boston;Griffiths, Julia, ed., Autographs for Freedom (Auburn, N.Y.: Alden, Beardsley, 1854Google Scholar);Kent, James, Commentaries on American Law (New York: O. Halsted, 1827), 2:464Google Scholar;Story, Joseph, Commentaries on the Law of Bailments (Cambridge, Mass.: Hilliard and Brown, 1832Google Scholar), chap. vi, art. vii. With the advent of the steam locomotive, however, common carrier law grew in importance within American jurisprudence: the 1851 edition of Story's Bailments retained the same ordering and references as the 1832 edition, but two later treatises diverged in this respect:Redfield's, IsaacThe Law of Carriers of Goods and Passengers…[and] the Responsibility and Duty of Innkeepers (Cambridge, Mass.: Houghton & Co., 1869Google Scholar) dealt with innkeepers toward the end of the volume, whileEdwards's, IsaacA Treatise on the Law of Bailments (New York: Banks & Bros., 1878Google Scholar) maintained the older sequence, though without the customary description of carriers in terms of innkeepers.

14. Foner, , Reconstruction, 369, 497-99, 525–28.Google Scholar

15. On the common law, see Horwitz, Morton J., “The Conservative Tradition in the Writing of American Legal History,” American Journal of Legal History 17 (1973): 275Google Scholarand especiallyThe Transformation of American Law, 1780-1860 (Cambridge: Harvard University Press, 1977), 1–30Google Scholar;Stoner, James R. Jr, Common Law and Liberal Theory: Coke, Hobbes, and the Origins of American Constitutionalism (Lawrence: University Press of Kansas, 1992Google Scholar);Holmes, Oliver Wendell Jr, The Common Law (Boston: Little, Brown, 1881Google Scholar), Part III; See also the legal treatises cited below, as well asCentury Digest, Cases to 1896, v. 2, under “Innkeepers” (St. Paul: West Publishing Co., 1911Google Scholar). My contention that the status of the traveler is the fundamental consideration behind these aspects of the common law puts me into disagreement with Joseph William Singer, who has argued that it is the fact of their being public callings that requires inns, carriers, and other establishments to serve all comers. In refuting the role of travel, he states: “If the importance of the right to travel is the basis for placing a duty to serve on inns and common carriers, then surely the duty should extend to businesses that sell food and clothing.” In fact, the eighteenth- and nineteenth-century statutes I have cited did often apply to people who sold provisions, then called victuallers. Regarding clothiers, the scarcity of retail clothing stores until relatively recently makes it difficult to come to meaningful conclusions about their status in early America. Notably, the argument that stores partook of the same legal status as inns was in fact deployed by opponents of federal civil rights enforcement in the 1870s: see Appendix to the Congressional Globe, 42nd Congress, 2nd Session, 6 February 1872, 28-29 (Pt. 6). I agree with Singer's normative argument and recognize the existence of public callings, but the historical record indicates that travelers and strangers did indeed have a special status. See “No Right to Exclude: Public Accommodations and Private Property,”Northwestern University Law Review 90 (1996): 1283–1497Google Scholar, especially 1446.

16. For an introduction to innkeeper law, see Bogen, David S., “The Innkeeper's Tale: The Legal Development of a Public Calling,” Utah Law Review 51 (1996): 51–92Google Scholar;General Laws of Massachusetts to 1822 (Boston: Wells & Lilly, 1823), 299Google Scholar; Story, Commentaries on the Law of Bailments, chap. vi, art. vii, §§470-77. Some states referred to the common duties of the innkeeper and provided public penalties for their contravention without naming them specifically, as inThe Public Statute Laws of the State of Connecticut (Hartford: Hudson & Goodwin, 1808), 640–42Google Scholar. See alsoPublic Acts of the General Assembly of North Carolina (Newbern: Martin & Ogden, 1804), 2:122Google Scholar;Marbury & Crawford's Digest of Laws of Georgia (Philadelphia: R. Aitken, 1800), 453–54Google Scholar. For historical background on inns and taverns, seeConroy, David W., In Public Houses: Drink and the Revolution of Authority in Colonial Massachusetts (Chapel Hill: University of North Carolina Press, 1992Google Scholar);Thompson, Peter, Rum Punch & Revolution: Taverngoing & Public Life in Eighteenth-Century Philadelphia (Philadelphia: University of Pennsylvania Press, 1999CrossRefGoogle Scholar);Salinger, Sharon V., Taverns and Drinking in Early America (Baltimore: Johns Hopkins University Press, 2002Google Scholar);Rice, Kym S., Early American Taverns: For the Entertainment of Friends and Strangers (Chicago: Regnery Gateway, 1983Google Scholar). Innkeepers were not, however, at liberty to exclude people whose illness was not a danger to other guests and whose removal might result in damage to their health. See Gilbert v. Hoffman, 66 Iowa 205 (1885) and McHugh v. Schlosser, 159 Pa. 480 (1894). Generally speaking, nineteenth-century courts gradually reduced innkeepers' discretion over their premises even as they granted railroads broadened prerogative to control their operations. See John P. Hankey and A. K. Sandoval-Strausz, “The Entrepreneurial Redefinition of Space: Hotels and Railroads in Antebellum America,” paper delivered at “The Next Social History?” conference, Franke Institute for the Humanities, 1998 and theDecennial Digest, Century Edition (St. Paul: West Publishing, 1902Google Scholar), under “Carriers” and “Innkeepers.”

17. On linkage of liquor and accommodation, see A Collection of All Such Acts of the General Assembly of Virginia … (Richmond: S. Pleasants, 1814), 284–87Google Scholar, andGeneral Laws of Pennsylvania 1700-1849 (Philadelphia: Johnson, 1849), 598Google Scholar;The Laws of Vermont to 1824 (Windsor: Simeon Ide, 1825), 483Google Scholar, and see also Commonwealth v. Shortridge, 6 Marsh. 631 (1830); Novak, The People's Welfare, 92; State v. Wynne, 8 N. C. 451 (1821). On price-setting, see alsoThe Laws of Maryland (Baltimore: Nicklin & Co., 1811), 1:392Google Scholar;Laws of the State of Maine (Portland: Thos. Todd, 1834), 75, 698Google Scholar. On Sabbath exception, see also General Laws of Massachusetts, 407, and Digest of Laws of Georgia, 481.

18. Kent, , Commentaries, 2:592–97Google Scholar; Story, Bailments, chap. vi, art. vii, §464. These treatise-writers also noted that while the presumption of guilt in English common law was related to the low repute in which innkeepers were held, the higher social status of American hosts, who were as often as not the equals of their guests, did not serve to lessen the burdens placed on innkeepers at law.

19. Novak, , The People's Welfare, 19–50 and generally.Google Scholar

20. Laws of Massachusetts, 298; Laws of the State of Connecticut, 640; Laws of Pennsylvania, 598. Nor was public oversight of inns purely restrictive: the state of New York actively encouraged the maintenance of inns in remote yet important locations by easing licensing requirements for establishments that were rarely visited but were “nevertheless of public utility.” See Laws of the Colony of New York (Albany: Lyon, 1888Google Scholar-), 11th Session, 710; Kent, Commentaries, 2:460.

21. Laws of Maryland, 396, and see also Laws of Pennsylvania, 600; Salinger, , Taverns and Drinking, 21–24Google Scholar, 121-50, 230-39;Benton, Josiah Henry, Warning Out in New England (Boston: W. B. Clarke, 1911Google Scholar); “The Diary of Robert Love,” P-363 of the Pre-RevolutionaryWar Diaries at the Massachusetts Historical Society;Lincoln, Charles Z., The Colonial Laws of New York from the Year 1664 to the Revolution (Albany: J. B. Lyon, 1894), 100Google Scholar;Laws of the State of New-Hampshire (Exeter: Norris & Co., 1815), 373Google Scholar, and Laws of the State of Connecticut, 641-42.

22. For the ancient Roman and medieval English origins of innkeeper law, see David S. Bogen, “Ignoring History: The Liability of Ships' Masters, Innkeepers and Stablekeepers under Roman Law,” American Journal of Legal History 36 (1992): 326–60CrossRefGoogle Scholarand Bogen, “The Innkeeper's Tale,” 55-62;Bischoff, Bernhard and Lapidge, Michael, eds., Biblical Commentaries from the Canterbury School of Theodore and Hadrian (Cambridge: Cambridge University Press, 1994), 415Google Scholar; Story, Bailments, chap. vi, art. vii, §467;Delamare, Nicolas, Traité de la Police (Paris, 1722Google Scholar), cited inBrennan, Thomas E., Public Drinking and Popular Culture in Eighteenth-Century Paris (Princeton: Princeton University Press, 1988), 277Google Scholar;Blackstone, William, Commentaries on the Laws of England (Oxford: Clarendon Press, 1765-1769), 1:13.402Google Scholarand 14.417-18, 2:30.451, 3:9.164, 4:13.168.

23. Taylor, George Rogers, The Transportation Revolution, 1815-1860 (New York: M. E. Sharpe, 1951), 15–103Google Scholar; A. K. Sandoval-Strausz, “For the Accommodation of Strangers: Urban Space, Travel, Law, the Market, and Modernity at the American Hotel, 1789-1908” (Ph.D. diss., University of Chicago, 2002), chaps. 1, 2, 4;Schlesinger, Arthur M. Jr, The Age of Jackson (Boston: Little, Brown, 1945Google Scholar);Watson, Harry L., Liberty and Power: The Politics of Jacksonian America (New York: Hill and Wang, 1990Google Scholar);Feller, Daniel, The Jacksonian Promise: America, 1815-1840 (Baltimore: Johns Hopkins University Press, 1995Google Scholar); Horwitz, Transformation of American Law, 1780-1860; Tomlins, Law, Labor, and Ideology; Novak, The People's Welfare. Some scholars, most notably Charles Sellers inThe Market Revolution: Jacksonian America, 1815-1846 (New York: Oxford University Press, 1991Google Scholar), have attributed all these changes to the rapid penetration of capitalism into various spheres of everyday life. While I agree that market relations were transformative in this period, such arguments, when drawn too briefly or broadly, lose their explanatory force and obfuscate rather than elucidate; for this reason I have chosen to avoid elaborating such an argument in this article. For commentary on the promise and problems of theories of market revolution, seeStokes, Melvyn and Conway, Stephen, eds., The Market Revolution in America: Social, Political, and Religious Expressions, 1800-1880 (Charlottesville: University Press of Virginia, 1996Google Scholar) and Daniel Feller, “The Market Revolution Ate My Homework,”Reviews in American History 25 (1997): 408–15CrossRefGoogle Scholar.

24. Markham v. Brown, 8 N. H. 523 (1837), 525-26, 529. It is worth noting that the English common law did not expand privileges in an inn beyond travelers themselves. See, for example, Holder v. Soulby, 8 C.B. 254 (1860), 256; The Queen v. Rymer, 2 Q.B.D. 136 (1877); Lamond v. Richard and the Gordon Hotels, Limited, 1 Q.B. 541 (1897).

25. State v. Whitby, 5 Har. (Del.) 494 (1854). For the leading case law on the duties of “board” and “hearth,” see Mason v. Thompson, 9 Pick. (Mass.) 280 (1830); Wintermute v. Clarke, 5 Sandf. (N.Y.) 242 (1851); Walling v. Potter, 35 Conn. 183 (1868). Note that the extension of travelers' protections to local residents was often contested, as in Thickstun v. Howard, 8 Blackf. (Ind.) 535 (1847); Ingalsbee v. Wood, 33 N.Y. 577 (1865). On common carrier law, see Jencks v. Coleman, 2 Sumn. (Mass.) 221 (1835); Bennett v. Dutton, 10 N.H. 481 (1839); Wheeler v. San Francisco & A. R. Co., 31 Cal. 46 (1866); Tarbell v. Central Pacific R. Co., 34 Cal. 616 (1868); Pittsburgh, C. & St. L. Ry. Co. v. Vandyne, 57 Ind. 576 (1877); Brown v. Memphis & C. R. Co., 5 Fed. 499 (1880); Brown v. Memphis & C. R. Co., 7 Fed 51 (1881); Atwater v. Delaware, L. & W. R. Co., 48 N.J. Law 55 (1886). The federal cases indicate that courts increasingly scrutinized the exclusion of women on the basis of “reputation for chastity.” On the relative development of innkeeper and common carrier law, see their respective sections in the American Digest, Century Edition (St. Paul: West Publishing, 1902Google Scholar). The severing of the relationship between travel and liquor retailing is perhaps most unequivocally demonstrated by the rise of the saloon, a drinking establishment that lacked any apparent connection to the accommodation of wayfarers. Notably, late nineteenth-century efforts to control public drinking sometimes involved the reimposition of older standards, as with the 1896 Raines Law's requirement that some saloonkeepers maintain beds on the premises. SeeDuis, Perry, The Saloon: Public Drinking in Chicago and Boston, 1880-1920 (Urbana: University of Illinois Press, 1983Google Scholar);Powers, Madelon, Faces along the Bar: Lore and Order in the Workingman's Saloon, 1870-1920 (Chicago: University of Chicago Press, 1998Google Scholar);Jackson, Kenneth T., ed., The Encyclopedia of New York City (New Haven: Yale University Press, 1995) 984–85Google Scholar.

26. See, for example, Adams v. Freeman, 12 Johnson (N.Y.) 408 (1816), an apparent outlier on the restriction of privileges to travelers; Mason v. Thompson; Markham v. Brown, 527; State v. Whitby, 496; Walling v. Potter, 185; Atwater v. Sawyer, 76 Me. 538 (1884). The path of innkeeper law necessarily relates to ongoing debates regarding the persistence of the “well-regulated society” described by William Novak as opposed to the countervailing idea of a capitalist-friendly “transformation of American law” proposed by Morton Horwitz. My research suggests that a legal order based on protection and obligation was quite durable. The cases I have cited sometimes involved travelers winning judgments that were so enormous as to threaten even a large hotel with bankruptcy; given the importance of hotels in transportation networks and national expansion, this can hardly be seen as economically “efficient.” Indeed, my findings extend Novak's world even further into the present than he himself would, since I see some aspects of the well-regulated society persisting deep into the twentieth century. That said, the judicial language I have just cited also suggests that the protections of innkeeper law, however persistent they were, were also being reinterpreted in ways that could be considered liberal as early as the 1830s; this liberal reformulation resulted in the same rulings as had been rendered before, but there can be little doubt that the assumptions behind them were in flux in Jacksonian America.

27. Commonwealth v. Mitchel, 1 Phila. (Pa.) 426 (1850), 436, 439-40.

28. Ibid., 426, 440-42.

29. Congressional Globe, 42nd Congress, 2nd Session, 21 December 1871, 279-80; Congressional Globe, 42nd Congress, 2nd Session, 8 February 1872, 892-93 and 9 February 1872, 928. On the House of Representatives, see, for example, Congressional Record, 43rd Congress, 1st Session, 5-6 January 1874, 375-82, 405-6, 417-22, 427-30 (Vol. 2, Part 1); Appendix to the Congressional Record, 43rd Congress, 1st Session, 29 May 1874, 341-44 (Vol. 2, Part 6).

30. Appendix to the Congressional Record, 43rd Congress, 1st Session, 22 May 1874, 363 (Vol. 2, Part 6). A similar tactic was used by a Congressman from New Jersey who attacked the civil rights bill by claiming that the common law regulation of inns had only been justified by past government monopolies; but since that “foundation which once existed, but which for years has been torn away…we cannot therefore burden their business with any restrictions[.]” See Congressional Record, 43rd Congress, 2nd Session, 4 February 1875, 1001-2; Acts of the 39th Tennessee General Assembly, 1st Session (1875), 216-17; Revised Statutes of the State of Delaware (Wilmington: Mercantile Printing, 1893), 440Google Scholar(Ch. 194, Vol. 15, passed 25 March 1875).

31. Franklin, John Hope, “The Enforcement of the Civil Rights Act of 1875,” Prologue (1974): 226–28Google Scholar; Riegel, “Persistent Career,” 23.

32. Franklin, “Enforcement,” 233-35; Civil Rights Cases, 11, 17, 26, 38-41. Indeed, the justices went so far as to deny that it was even possible for an individual to deprive a fellow citizen of his or her rights, whether through violence, fraud, or deception. Such actions, they reasoned, must be provided with remedies at the state level. Beyond its formalism, this position also reflected a remarkable indifference to the plight of black people, whom the majority famously remarked must cease “to be the special favorite of the law” (at 25).

33. Strictly speaking, the ruling in the Civil Rights Cases did not declare the entire Act unconstitutional, since it did not pass on its application to transportation on navigable waters. This question was taken up only in 1913 in Butts v. Merchants & Miners Transportation Company, 230 U.S. 126 (1913).

34. These were: Connecticut, Iowa, New Jersey, and Ohio (1884), Colorado, Illinois, Indiana, Michigan, Minnesota, Nebraska, and Rhode Island (1885), Pennsylvania (1887), Washington (1890), Wisconsin (1895), and California (1897); Massachusetts, New York, and Kansas already had such laws on the books, but updated them in the aftermath of the Supreme Court ruling. See Konvitz, Milton R. and Leskes, Theodore, A Century of Civil Rights (New York: Columbia University Press, 1962), 155–59.Google Scholar

35. For details of state laws, see Compiled Statutes of New Jersey (Newark: Soney & Sage, 1911Google Scholar), 1442;Annotated Statutes of the State of Illinois (Chicago: Callaghan & Co., 1896), chap. 38, ¶ 82Google Scholar;Revised Statutes of the State of Indiana (Chicago: E. B. Myers, 1888Google Scholar), § 1291a. See alsoRevised Statutes of Colorado (Denver: Smith-Brooks, 1908), §609Google Scholar;Annotated Code of the State of Iowa (Des Moines: F. R. Conaway, 1897Google Scholar), § 5008;Compiled Laws of the State of Michigan (Lansing: Robert Smith, 1897Google Scholar), 3495;Annotated Revised Statutes of the State of Ohio (Cincinnati: W. H. Anderson, 1898Google Scholar), §4426-1. For a close analysis of the application of the Illinois Civil Rights Act of 1885, see Elizabeth Dale, “Social Equality Does Not Exist among Themselves, nor among Us: Baylies v. Curry and Civil Rights in Chicago,” American Historical Review 102 (April 1997): 311-39.

36. Minter, “The Failure of Freedom”; Mack, “Making of the Jim Crow South”; Ayers, , Promise of the New South, 136–46; on efforts specifically to control black mobility, 150-52.Google Scholar

37. Welke, , Recasting American Liberty, chap. 9, esp. 343-48, 358–64Google Scholar. Faced with the prospective logistical difficulties of rearranging seats and staterooms at every state line and river port, most railroad and steamboat companies ultimately decided to maintain racial segregation as a matter of privately enforced company policy along routes that passed through the South. Railroads regularly challenged state segregation laws in court in an effort to establish their authority over their operations, but interestingly, they seem to have abandoned a promising line of litigation by not appealing the Mississippi Supreme Court's ruling in Southern Railway Company v. Norton, 112 Miss. 302 (1916). See Welke, 374.

38. Woodward, C. Vann, Origins of the New South, 1877-1913 (Baton Rouge: Louisiana State University Press, 1951), 210–12Google Scholar;Foner, , Reconstruction, 587–98Google Scholar;Lofgren, , The Plessy Case, 20–27Google Scholar;Rabinowitz, , Race Relations, 182–97Google Scholar. See alsoPerman, Michael, The Road to Redemption: Southern Politics, 1869-1879 (Chapel Hill: University of North Carolina Press, 1984Google Scholar); Ayers, Promise of the New South.

39. On the expansion of federal regulatory authority, see Kolko, Gabriel, The Triumph of Conservatism: A Reinterpretation of American History, 1900-1916 (New York: Free Press, 1963Google Scholar);McCraw, Thomas K., “Regulation in America: A Review Article,” Business History Review 49 (1975): 159–83CrossRefGoogle Scholar;McCraw, , Prophets of Regulation (Cambridge: Belknap Press of Harvard University, 1984Google Scholar);McCraw, , ed., Regulation in Perspective: Historical Essays (Cambridge: Harvard University Press, 1981Google Scholar); Skowronek, Building a New American State; Keller, Morton, Regulating a New Economy: Public Policy and Economic Change in America, 1900-1933 (Cambridge: Harvard University Press, 1990Google Scholar); William J. Novak, “The Legal Origins of the Modern American State,” American Bar Foundation Working Paper #9925 (1999);White, G. Edward, The Constitution and the New Deal (Cambridge: Harvard University Press, 2000)Google Scholar.

40. Mitchell v. United States, 313 U.S. 80 (1941); Morgan v. Virginia, 328 U.S. 373 (1946); Henderson v. United States, 339 U.S. 816 (1950). There had been two earlier legal victories in lawsuits brought by the NAACP and other private plaintiffs—in Nixon v. Herndon (1927) and Missouri ex rel. Gaines v. Canada (1938)—but the earlier ruling was subsequently repudiated by the Court in Grovey v. Townsend (1935) in a temporary retreat from receptivity to the grievances of black plaintiffs and the latter did not threaten the doctrine of separate but equal. See Kelly, , Harbison, , and Belz, , The American Constitution, 583–85Google Scholar, 591-94;Barnes, Catherine A., Journey from Jim Crow: The Desegregation of Southern Transit (New York: Columbia University Press, 1983), 20–34Google Scholar, 44-51, 71-80;McCoy, Donald R. and Ruetten, Richard T., Quest and Response: Minority Rights and the Truman Administration (Lawrence: University Press of Kansas, 1973), 10Google Scholar. In recognizing the continuities between nineteenth- and twentieth-century antidiscrimination law, it is important to note, first, that Mitchell was not the first time that American courts had upheld equality in transportation under the ICC; and second, that the Court recognized this, its verdict in Morgan citing key nineteenth-century rulings involving interstate transportation. See the text of the rulings andWelke, , Recasting American Liberty, 358–75Google Scholar.

41. Brown v. Board of Education of Topeka, Kansas, 349 U.S. 294 (1954). For an excellent review of the historiography of the effect of Brown, see Michael J. Klarman, “How Brown Changed Race Relations: The Backlash Thesis,” Journal of American History 81 (1994): 81–118CrossRefGoogle Scholar;Dittmer, John, Local People: The Struggle for Civil Rights in Mississippi (Urbana: University of Illinois Press, 1994), 41–69Google Scholar;Thornton, J. Mills III, Dividing Lines: Municipal Politics and the Struggle for Civil Rights in Montgomery, Birmingham, and Selma (Tuscaloosa: University of Alabama Press, 2002), 20–140Google Scholar, especially 47 on the relationship between the boycott and the Browndecision.

42. Many efforts at segregation through privatization were recognized for what they were by the courts and disallowed, but establishments that had not been public previously seemed impervious to further federal action. Woodward, , Strange Career, 158–59Google Scholar;Barnes, , Journey from Jim Crow, 101–56Google Scholar;Chafe, William H., Civilities and Civil Rights: Greensboro, North Carolina and the Black Struggle for Freedom (New York: Oxford University Press, 1980), 65–82Google Scholar;Thornton, , Dividing Lines, 101–9Google Scholar, 222-25, 254-59;Dittmer, , Local People, 43–44Google Scholar, 59. See alsoBartley, Numan V., The Rise of Massive Resistance: Race and Politics in the South during the 1950s (Baton Rouge: Louisiana State University Press, 1999)Google Scholar.

43. Greenberg, Jack, Race Relations and American Law (New York: Columbia University Press, 1959), 81-87, 96–101.Google Scholar

44. Delaware Code Ann. Tit. 24, § 1501; Louisiana Acts 1954 No. 194, § 1; Tennessee Code Ann. §62-710; Mississippi Code Ann. §2046.5 (1956 Supp.); Florida Statutes Ann. § 509.092 (1958 Supp.); Arkansas Act No. 226 § 1. Cited in Greenberg, , Race Relations and American Law, 97Google Scholar, 419. On Alabama, see Senate Commerce Committee Report No. 872, 88th Congress, 2nd Session (1964), 10.

45. Branch, Taylor, Parting the Waters: America in the King Years, 1954-63 (New York: Simon & Schuster, 1988Google Scholar), chaps. 10-23;Branch, Taylor, Pillar of Fire: America in the King Years, 1963-65 (New York: Simon & Schuster, 1998Google Scholar), Pts. 1, 2;Chafe, , Civilities and Civil Rights, 98–214Google Scholar;Thornton, , Dividing Lines, 227–30Google Scholar, 239-53;Dittmer, , Local People, 153–57Google Scholar, 165-69, 193-99;Dudziak, Mary L., Cold War Civil Rights: Race and the Image of American Democracy (Princeton: Princeton University Press, 2000), 152–248Google Scholar.

46. Civil Rights Act of 1964, 78 Stat. 241 (1964). The Act did not mention modes of transportation because these had already been officially desegregated by ICC order. 88th Congress, Senate Committee on Judiciary Published Hearing, CIS No. 88 S1592 (three parts); 88th Congress, House Committee on Judiciary Published Hearing, CIS No. 88 H2036 (four parts); 88th Congress, Senate Committee on Commerce Public Hearing, CIS No. 88S1580-0, esp. 9-10, 22 (all Washington, D.C.: Government Printing Office, 1963, 1964). Onthe Civil Rights Act more generally, see Charles, and Whalen, Barbara, The Longest Debate: A Legislative History of the 1964 Civil Rights Act (Washington, D.C.: Seven Locks Press, 1985Google Scholar);Loevy, Robert D., To End All Segregation: The Politics of the Passage of the Civil Rights Act of 1964 (Lanham, Md: University Press of America, 1990Google Scholar);Loevy, Robert D., ed., The Civil Rights Act of 1964: The Passage of the Law That Ended Segregation (Albany: State University of New York Press, 1997)Google Scholar.

47. Cortner, , Civil Rights and Public Accommodations, 35–37Google Scholar; Brief of Appellant in Heart of Atlanta Motel v. United States, 16, 32-37, 51-58. It is not clear whether Rolleston had direct knowledge of Commonwealth v. Mitchel. He would have had access to the same indexes and treatises cited in this article, though his sparing use of citations (relative to the justice department) and the speed with which he filed suit suggest that he had not gone back for case-by-case reading. My point here involves shared logic rather than necessarily direct textual borrowing. For a detailed account of litigation against the Act, see Cortner, especially 90-96, 99-114.

48. Brief of Appellees in Heart of Atlanta v. U. S., 8-13, 38-39, 42-43, 53-54.

49. Brief of the Attorney General of the State of New York as Amicus Curiae in Support of Affirmance, 1, 3-10; Brief of the State of California as Amicus Curiae, 1, 4-8; Amicus Curiae Brief on Behalf of the Commonwealth of Massachusetts, 1, 16. This is not to say that economic arguments were not made in briefs before the Supreme Court, but rather that these points were secondary, made only after lengthy appeals to the need to protect black travelers.

50. Brief of Appellees, 56-59, 61. The New York State amicus brief invoked innkeeper law in the same context: “The Civil Rights Act of 1964 only deprives operators of public places catering to transients of the freedom to deny their accommodations to a segment of the public, a so-called freedom that innkeepers never had under the common law.” State of New York as Amicus Curiae, 9-10.

51. Transcript of oral arguments, In the United States District Court for the Northern District of Georgia, 52, 62-66.

52. Oral argument transcript from Kurland, Philip B. et al., eds., Landmark Briefs and Arguments of the Supreme Court of the United States: Constitutional Law (Washington, D.C.: University Publications of America, 1975Google Scholar-), v. 60, 15-16, 21-25, 44-53. Cox also made specific reference to the common law in refuting Rolleston's Thirteenth Amendment argument, observing that the motel's attorney was effectively claiming “that the Anglo-American common law for centuries has subjected to slavery innkeepers, hackmen, carriers, wharfage men, ferriers, all kinds of other people holding themselves out to serve the public.” See Kurland, 42.

53. Heart of Atlanta Motel v. United States (1964), 379 U.S. 241, 252-53, 256, 260-61.

54. Ibid., 250-51. It is worth noting that travel was also a key issue in Katzenbach v. McClung, the companion case to Heart of Atlanta Motel, which dealt with the Civil Rights Act's applicability to a local barbecue restaurant far from any interstate thoroughfares and serving a local clientele, and therefore less directly implicated in interstate commerce. The Court's opinion cited the effect of restaurant segregation on travel by black people, calling attention to “an impressive array of testimony that discrimination in restaurants had a direct and highly restrictive effect upon interstate travel by Negroes,” a situation that “obviously discourages travel and obstructs interstate commerce for one can hardly travel without eating.” See Katzenbach v. McClung, 379 U.S. 294 (1964), 300.

55. The coming of the automobile was radically changing the physical and human geography of transportation in the first half of the twentieth century, a fact that (as Willard Hurst suggests in the quotation in note 2) likely influenced the development of laws regarding transportation, accommodation, and race: automobility allowed black people to travel without facing the daily humiliation of Jim Crow inherent in mass transit. See Welke, , Recasting American Liberty, 376Google Scholar. While I agree that this change in transportation regime must have been important, the Court in Heart of Atlanta (at 256) seemed to suggest otherwise, citing an earlier ruling that: “The recent changes in transportation brought about by the coming of automobiles [do] not seem of great significance in the problem. People of all races travel today more extensively than in 1878, when this Court first passed upon state regulation of racial segregation in commerce. [It but] emphasizes the soundness of this Court's early conclusion in Hall v. DeCuir, 95 U.S. 485.”

56. Barnes, , Journey From Jim Crow, 50–51Google Scholar; 88th Congress, 2d Session, Senate, Report No. 872, “Civil Rights—Public Accommodations” Senate Commerce Committee, submitted February 10, 1964, and Report No. 872, Appendix A, by Senator Winston L. Prouty (Washington, D.C.: Government Printing Office, 1964); Papers of Earl Warren, Container No. 267, Case No. 515, 1964 Term, Bench Memo; Papers of William J. Brennan, Jr., Part I: 127, Case File No. 64–515; Papers of William O. Douglas, Container No. 1348.

57. See, for example, Friedman, Lawrence M., A History of American Law (New York: Simon & Schuster, 1973), 576–80Google Scholar; Sitkoff, Harvard, The Struggle for Black Equality, 1954-1980 (New York: Hill and Wang, 1981Google Scholar); Hall, Kermit L., The Magic Mirror: Law in American History (New York: Oxford University Press, 1989), 322–27Google Scholar; Hall, Kermit L., Wiecek, William M., and Finkelman, Paul, American Legal History: Cases and Materials (New York: Oxford University Press, 1991), 510–16Google Scholar; Klarman, Michael J., From Jim Crow to Civil Rights (New York: Oxford University Press, 2004)Google Scholar.