The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1875-04-02
The Enforcement Act Before the SG-
preme Court.

One Of the most important and interesting
questions that has ever been brought under
the judicial cognizance of our highest tribunal
has been argued for the last two or three days
in the Supreme Court by counsel of the first
eminence. The case comes up from the Cir
cult Court of Louisiana by writ Of error in
consequence Of division of opinion between
the judges of the lower court. The chief
point to be decided is whether the Enforce
ment act is repugnant to the constitution.
The arguments take wide range and EN-
brace many points which only trained legal
minds are competent to estimate at their
proper value. But there is one main point on
which the controversy chiefly hinges and we
will try to make that main point ineligible to
the popular mind.
The Enforcement act processes, on its face,
to be law for enforcing the fourteenth
amendment to the constitution. That amend
ment prohibits the States from passing any
law abridging the equal privileges OF citizens,
its main object being to prevent discrimina-
tions against the colored race. BY its very
terms this amendment operates on the State
governments, forbidding them to do certain
things or pass certain laws which would i'm
pair the full equality of colored citizens. 1t
would accordingly seem to follow that if the
State governments abstain from such legisla-
ton there is nothing on which the fourteenth
amendment can operate. The language OF
the amendment is-''No State shall make or
enforce any law which shall abridge the priv
ileges or immunities of citizens OF the United
States nor shall any State deprive any
person of life liberty or property with
out due process of law; nor deny
to any person within its jurisdiction the
equal protection of the laws" This is so
clearly a prohibition on the States, il refers 50
exclusively to State action, it is so obviously
limited to restraining State legislation adverse
to the colored race, that until State
government violates it by the passage or en-
forcement Of unequal laws there is nothing on
which the amendment can act. But Congress
has assumed to give the amendment much
wider scope. Instead of an act for multiplying
unequal State laws, if any State should pass
such laws, it has taken the whole subject into
its own jurisdiction, and has legslated for
negro equality precisely if no State govern
ments existed. But the amendment is aimed
solely against particular prohibited class Of
State laws, comforting upon Congress no author
ity to legislate on the subject except in contra
vention Of such forbidden State action. The
amendment does not take certain subjects Of
legislation out of the hands Of the States and
give Congress power to legislate on them, but
leaves these subjects within State jurisdiction
with the single exception that whatever laws a
State passes for the protection Of citizens in
general shall give equal protection to citizens
Of the colored race. The amendment merely
clothes Congress with negative on unequal
State laws, leaving the States as free in other
respects as they ever were. But in the En-
forcement act Congress overstepped and went
altogether beyond this limit, and undertook
to legislate on the subject as freely as if no
State governments existed. 1t is chiefly on
this ground that many distinguished lawyers
think the Enforcement act unconstitutional,
and they are very confident that, after lair
hearing the Supreme Court viii feel con
strained TO declare it void