The New Orleans bulletin. [volume] (New Orleans [La.]) 1874-1876, 1874-07-12
rights and duties imposed upon it by the Con-

within the scope of the enumered powers of leg
islation confded to Congress, Justice Stor
answers - Stripped OF its artificial and technl
cal structure, the argument comes to this that
although rights are exclusively secured by,
duties exclusively imposed upon the Nationa
Government yet unless the power to enforc
these rights to execute these duties can b.
found among the express powers OF Legislation
| enumerated in the Constitution, they remall
without any means Of giving them effect by an.
! act Of Congress, and they must operate sotl.
puLriD oigOre. however defective may be thcl
operation nay, even although in practica
sense, they may become a nrlllity from the wan
| Of proper remedy to enforce them, or to pro
vide against their violation. Ii this be the true
Interpretation Of the Constitution, it must, III
great measure, fail to attain many OF its avoweo
and positive objects as security OF rights and 8
recognition Of duties. Such limited construc
ton Of the Constitution has never yet beer
adopted as correct, either in theory prac.
tce. = 16 Pet. 615 61S).
It seems to be firmly established blythe unani-
nous opinion Of the judges in the above quoted
| case that Congress has power to enforce, by ap-
propriate egislatiOn. every right and privilege
given or guaranteed by the Constitution. The
method Of enforcement, or the legislation apprO-
PIRATE to that end, will depend upon the character
Of the right conferred 1t may be by the establish
ment Of regulations for attaining the object Of
the right, the imposition of penalties for its vio-
lation, or the institution OF Judicial procedure
for its vindication when assaled, or when ignored
together. One method Of enforcement may be
applicable to one fundamental right, and not
applicable to another.
With regard to those acknOwlged rights and
privileges Of the citizen, which form part of his
political inheritance derived from the mother
country, and which were challenged and vindi-
Gated by centuries Of stubborn resistance to
arbitrary power, they belong to him as his birth
right, and it is the duty Of the particular State Of
which he is a citizen to protect and enforce
them and IN Ia nanphf tn 1anriva him IF fhair
full enjoyment.
When any Of these rights and privileges are
secured in the Constitution Of the United States
only by declaration that the State or the United
States shall not violate abridge them, it is at
once understood that they are not created or con-
ferred by the Constitution, but that the Con-
stltutlon only guarantees that they shall not
be impaired by the State, or the United States, as
the case may be. The fultillment of this guaranty
by the United States is the only duty with which
that Government is charged. The affirmative en-
forcement OF the rights and privileges themselves,
unless something more is expressed, does not de-
volve upon it. but belongs to the State Govern
ment as part Of its residuary sovereignty.
For example, when it is declared that no State
shall deprive any person Of life liberty or prop
erty without due process Of law, this declaration
Is not intended as guaranty against the COM
mission Of murder, false Imprisonment, robbery,
OF any other CRIME committed by individual male
factors, so as to give Congress the power to pass
laws for the punishment Of such crimes i'll the
several States generally. 1t is Constitutional
security against arbitrary and unjust legislation
by which man may be proceeded against i'll
summary manner and arbitrarily arrested and
condemned without the benefit of those time
honOred forms of proceeding in open court and
trial by jury, which is the clear right of every
freeman both in the parent country and in this.
1t is guaranty Of protection against the acts of
the State Government itself Ii is guaranty
against the eXertion of arbitrary and tyranncal
power on the part of the Government and LeSis-
!ature Of the State, not guaranty against the
commission Of individual offences: and the power
Of Congress. whether implied or expressed, to
legislate for the enforcement of such guaranty,
does not extend to the passage of laws for tine
Of ordinary crime within the States.
This would be to clothe Congress with power to
pass laws for the general preservation of social
order in every State. The enforcement of the
guaranty does not require or authorize Congress
to perform the duty which the guaranty itself
supposes it to be the duty Of the State perform.
and which it requires the State to perform. The
duty and power Of enforcement take their incep-
ton from the moment that the State fails to com
ply with the duty enjoined, or violates the pro-
hibition imposed No State may pass law im-
pairing the obligation Of contracts. Does this
authorize Congress to pass laws for the general
enforcement OF contracts III the States! Ger
tainly not. But when the State has passed law
which violates the prohibition, Congress may pro-
vide remedy. 1t did in the 25th section Of the
Judiciary Act by authorizing all appeal to the
where a constitutional or Federal right should bt
denied Ut ovcrrued i'll State court.
Again, the citizens of each State shall be en-
titled to all the privileges and immunites of citi-
zens IN the several States But this does not
authorize Congress 10 pass general system Vi
law for the security of person and prop
erty, to have effect in the several States for the
protection of citizens uf other States to whom the
fundamental right is guaranteed. 1t only author
ICES appropriate and efficient remedies to be pro
,ted III case the guaranty is violated
Where affirmative legislation required to give
the citizens the right guaranteed, Congress may
adopt 1t, as was done in the case OF
The fuSti slave law. and has been done i'll later
times. to carry into full effect the A1IIth Amend
nent uf t..c Constitution by tine passage of the
civil right. ILL. viii he more fully noted here
after. Bisl regard to mere constitutional
prolllbstrii u.,ale Interference with established
IL ackn q rivileges and immunitss. the
ippropra, .uOnt enforce such prohibitions
IS that wiilc may be necessary or proper tor fur
iishing slita Bile redress when such prohibitions
ire disregarded or violated. Where no violation
!, attempted. tine interference Of Congress would
DC officlo's, unnecessary, and inappropriate.
The bearing OF these observations on the effect
II the several recent amendments of the Consti-
luton. in comforting Legislative power upon Con-
,ress, Is next to be noticed.
The XIIIth Amendment declares that neither
slavery nor involuntary scrvitude. except pun
shment for crime, shall exist within the United |
states any place subject to its jurisdiction. and
hat Congress shall have power to enforc. this
.rticle by appropriate Legislation.
This Is not merely prohibition against the |
s.ssage enforcement Ut any law intllcting or
sta bishing slavery Or involuntary servitude but
I is positive declaration that sldt ei-y staV no:
.tist. Il prohibits tho thing. In the enforce
lient Of this article therefore, Congress ha. t.
leal will the ub]cct matter. Ii al amendment
lad been adopted that polysa1ny should not exist
within the United States, and similar power t. I
,nforc- it had been given in the case Of slavery,
congress would certainly have bud the power T.
egislate for the suppression and punishment Of
So, undoubtedly, by the XIIIth !
Amendment Congress has power to legilate for
he entire eradication of slavery III the United |
states. This amendment had an affirmative |
operation the moment it wa. adopted. 1t entran- |
hised four millions OF slaves, If, indeed they had
lot previously been eutranc!lsed by the opera
ion of the evil var. Congress, therefore,
!uired the power not only u l,gislat. for the !
indication OF slavery, but the power to give full
fleet to thi, besto"mvnt Of liberty these MIL I
ions of pt-ople. AL this it eS-ayed
o do by the civil rights bill, passed
lpri 9Th. 1886, by which 1t Was de-
Jared that all persons born in the United States
nd not subject to foreign power. teSc.pt In