Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1873-04-19

The Power 10 Create MOnopOlies-The
supreme Courts Construction of the
ThIrteendh and Fourteenth Amend
newfa


The Power 10 Create MOnepOlies-The
supreme Courts Construction of the
Thlrteensh and FOurleenth Amend
menfs.
CONCLUDED FROM OUR LAST
The language is: 'tNo State shall make
or enforce any laws which shall abridge
the privileges or immuuities of citizens of
the United States."' 1t is a little remarka-
bic if this clause was intended as protec-
ton to the citizens of a State against the
legislative power Of bis own State, that the
words s'citizsns 1.-THE Statep- should be left
out, when it is so carefully used, and used
In contra distinction to citizens of the UnifeI
States in the very sentence which precedes
it. 1t is too clear for argument that the
change in phraseology was adopted inten-
tioDally.
Of the privileges and immunities of the
citizen of The United States, and of the
privileges and immunities of the citizen of
the State, and what they respectively are,
we viii presently consider; but we wish TO
state here that it is only the former which
are placed by this clause under the protec
ton of the Federal Constitution, aud that
the latter, whatever they may be, are not
intended to have any additional protection
by this paragraph of the amendment. If
then there is difierepce between the privi-
leges and immunities belonging to citizen
Of the United States as such, and those be-
longing to the citizen of State as such, the
latter must rest for their security and pro
lection where they have heretofore rested,
so far as this paragraph is concerned, for
they receive no additional aid from it.
The first occurrence of the words priVi-
leees and immunities in our constitutional
history is to be found in the fourth of the
articles of the old confederation.
1t declares ''thst Herewith to secure and
perpetuate mutual friendship and inter
course among the people of the different
States of this Union, the inhabitants of
each of these States, paupers, vagabonds,
and fugitives from justice excepted, shall be
entitled to all the privileges and immunities
of free citizens in the several States, and
the people in each State shall have free in
gress and egress to AMI from any other
State, and shall enjoy therein all the privi-
leges of trade and commerce, subject to the
same duties, impositions, and restrictions
as the inhabitants thereof respectively"
In the Constitution Of the United States,
which superseded the articles of confedera-
ton, the corresponding provision is found
in section 2 of the 4th article in the follow
ing words: 'The citizens of this State SD all
identified to all the privileges and immun-
tiles of citizens of the several States"
There can be but little question that the
purpose of both these provisions is the
same, and that the privileges and immuni-
ties intended are the same in each, In the
article of the confederation we have some
of these specifically mentioned, and enough,
perhaps, TO give some general idea Of the
class of civil rights meant by the phrase.
Fortunately we are not without judicial
construction of this clause of the Constitu-
! ton. The first and the leading case on the
subject is that Of Cespeed ACT. Coryel, de-
cded by Mr.. Justice Washington, in the Cir
cult Court for the District of Pennsylvania,
in 1928. a Wash. @. @. R., 971.)
"The inquiry" be says, sis, What are the
privileges and immunities of citizens of tue
several States? We feel no hesitation in
combining no expressions to those privileges
and immunities which are fundamental
which belong of right to the citizens of all
free governments, and which have st all
times been enjoyed by citizens of the sevel-
81 States which compose this Union from
the time of their becoming free, independ-
ent, and sovereign. What these funda-
mental principles are it would be more te-
dious than difficult to enUmerate.
They may all, however, be comprehended
under the following general heads: Protec-
ton by the government, with the right to
acquire and possess property of every kind,
and to pursue End obtain happiness and
safety, subject, nevertheless, TO such re-
straints as the government may prescribe
for the general coed Of the whole.
This definition of the privileges and i'm
II - .
in the main by this Court in the recent case
of Ward agt. the State of Maryland az
Wallace, 400, while it declines to under
take an authoritative definition beyond
| what was necessary in that case. The de-
scription, when taken to include others not
named, and which are of the same general
character, embraces nearly every civil right,
for the establishment and protection of
which organized government is instituted.
They are, in the language Of Judge Wash
ington, those rights which are fundamen-
tai. Throughout this opinion they are spo-
ken of as rights belonging to the individual
as citizen of a State. They are SO spoken
of in the constitutional provision which he
was constituting. And they have always
been held to be the class of rights which
the State Governments were directed to es-
tablish and securs.
In the case of Paul sgt. Virginia Is Wal
lace, 1907 the Court, In expounding this
clause of the Constitution, says that "the
privileges and immunities secured to citi-
zens Of each State in the several States, by
the provision in question, are these privi-
leges and immunities which are common
to the citizens in the latter States, under
their Constitution and laws, by virtue of
their being citizens" The constitutions
provision there alluded to did not create
those rights, which it called privileges and
immunities of citizens of the State; it
threw around them in that clause no secur-
ity for the citizen of the State where ex-
ercised, nor did it pretend to curtail the
power of the State over them. Its sole
purpose was to declare to the several States
that whatever those rights are, as you grant
or establish them, or as you limit or crafty
them, or impose restrictions on their exer-
else, the same, no more nor less, should be
the measure Of the rights of citizens of
other States within your jurisdiction.
1t would be the vsinest show of learn
ing to attempt to prove by selections of
authority that, up to the adoption of the
recent amendments, no claim or pretense
was set up that those rights depended on
the Federal Government for their existence
or protection, beyond the very few express
limitations which the Federal Constitution
imposed upon the States-such, for instance,
as the prohibition against ex post facto laws,
bills of attainder, and laws impairing the
obligation of contracts. But, with these
and few other restrictions, the entire do
main of the privileges and immunities of
citizens Of the States, as above defined, lay
within the constitutional and legislative
power of the States, and without that of
the Federal Government.
Was it the purpose of the trainers Of the
Fourteenth Amendment, by the simple de-
clarstion that 10 State shall make or en-
force any laws which shall abridge the priv
ileges and immunities of citizens OF the
United States, to transfer the security and
protection of all the civil rights which we
have mentioned from the States to the
Federal Government? And where it is de-
clared that Congress shall have power to en-
force that article, was it intended to bring
within the power of Congress the entire do
main of civil rights heretofore belonging ex-
clusively to the States?
All this and more must follow if this prop
Osition of plaintiffs in error be sound; for
not only are these rights subjecs to the con-
troll Of Congress whenever, in its discretion,
any of them are supposed to be abridged by