Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1873-12-24
THE SUPPLEMENTARY CIyII.
RIGHTS BILL.

1
Whenever, therefore, a question
arises concerning the constitutionality
of a particular power, the first question
is, whether the power be expressed in
the constitution. If il, be, the question
is decided. If it be not oppressed. the
next inquiry must be,swhether it is
properly AN incident TO an express
power, and necessary and proper to it's
execution. If it be, then it may be ex-
ercised by Congress. If not, Congress
cannot exercise it.-Mr. Justice Story.
The civil rights bill, now before Con-
gress, provides that whoever, being
corporation or natural person, and
owner or in charge of any public inn,
or of any place of public amusement or
entertainment for which license from
any legal authority is required, or of
any line of stage coaches, railroads, OF
other means of public carriage of pas
sengers or freight, or Of any ceme-
terry OF other benevolent institu-
ton, or any public schools sup
ported in whole or in part
at the public expense or by endow-
ment for the public, shall make any dis
tinction as to the admission or accom-
mediation therein of any citizen of the
United States, because of race, color or
previous condition of servitude, shall,
on conviction thereof, be fined not less
than 500 nor more than $1,000 for
each offense, and the person or corpora
ton so offending shall be liable to the
citizen thereby injured in damage, to- be
recovered in an action of debt. This bill
is supplementarytoa statute already ex
listing on the same subject. Thepower
Of Congress to legislate upon this sub
ject is derived only from the following
clause of the fourteenth amendment:
mo State shall make or enforce any
law which shall abridge the privileges
or immunities of citizens of the United
States" This is prohibition on the
States and does not, therefore, express
ly confer upon Congress any power.
Another section of the same amend
ment confers upon Congress the power
to enforce the provisions of the amend
ment by appropriate legislation. This
power was implied already in the grant
of the express powers, and was added
out of abundant caution" This SUI
perfuous addition made at so advanced
a stage of our history was extremely
iniudicial, if not silly. What
implied power, then, does
the above prohibition carry with
it to secure obedience to it? Until a
State has made or enforced some law
abridging the privileges or immunities
of citizens, it would seem that Congress
should have no occasion to exercise the
authority which the prohibition i'm
plies at all. Laws are usually made to
cure an evil, and wise lawgivers have
always waited for an evil to show it.
self before undertaking to remedy it;
and while they have not been accustOm-
ed to anticipate evils, they have been
equally unaccustomed to supply RENE
dies for imaginary evils, We are not
aware that there has been any State
legislation hostile to the privileges and
immunities of citizens. But there are
States in the Southern portion Of
he Union which are regarded
as uncertain in their purposes; and
those States might pass such hostile
law. 1T is the bright day that
brings forth the adder" Then, lest
they may make the inimical law, pre-
cent This is the logic that seems to
instigate the Radical lawgver of Amer
lea. But what power does the prohlbi
ton confer by implication? Does the
the prohibition imply that Congress
may invest the United States Courts
with sole and exclusive jurisdiction of
every cause, arising out of a refusal by
the owner Of a public house, or by the
directors of a public school or Of rail
road or by the keeper Of a cemetery to
admit OF accommodate a citizen because
of race, color or previous condition?
Does the prohibition on the States to do
this or that confer upon Congress the
power to take away from the State
courts all cognizance Of such cases and
give it exclusively to the Federal courts,
that they may constantly hold it and
exercise it, whether or not there be any
State laws hostile to the: provisions of
the Constitution? The civil rights act
so confers upon the Federal courts this
exclusive jurisdiction. Is so radical a
measure a necessary and proper means
of enforcing the prohibition? Is it |
even appropriate" to use the hcenti-
Gus phraseology of such law-givers as
Sumner. Did the people when they |
ratified the fourteenth amendment |
mean thus to strip the States of their
authority? 1t cannot be. The ver-
biage of the prohibition will not admit
of so loose a construction. Such a
construction is utterly at variance
with the spirit Of the rest of
the Constitution, and Numerically OPP
posed to long and time-honored cur
rent Of judicial opinions regarding the
inviolability of the authority Of the
States to regulate their own internal
police. If the Supreme Court should
decide the civil rights act constitution
al, it would only be by accepting in a
loose sense the phrase, "by appropriate
legislation" which was fraud on the
popular will, designed to insure license
to despotic rulers. 1t could never have
been decided constitutional in the old
view of the supreme law. The civil
rights act is Objectionable because it
strikes away the authority of the States