The New Orleans bulletin. [volume] (New Orleans [La.]) 1874-1876, 1875-03-06
UNCONSTITUTIONALITY OF THE
CIVIL RIGHTS BILL.

coaings as politician or an individual, ne is
universally recognized as one OF the abiest
constitutional lawyers in the country. HIS
arguments against tie Civil Rights bill is
therefore entitled to great weight, emanating
as it does from man Of strong party preju-
dices and high authority as urist. Senator
\ Carpenters speech is too long to be quoted
IN erteaso, but we think synopsis Of its
main points will prove interesting al the pres
ent time.
Mr.. Carpenter starts from the well-estab-
lished principles that citizen of the Union,
residing in State, owes double allegiance,
and is entitled to the protection of both gov
ernments, and that no act Of Congress can be
valid under the Constitution unless it can
fairly be referred to some head Of Federal
Jurisdiction. Having shown that while q citi-
zen Of the United States engaged in foreign
commerce, or in commerce among the several
States, or with the Indian tribes, is entitled,
as respects Nat business, to the protection
Of the United States, asserts that he
| is entirely beyond the jurisdiction of
Congress if engaged in commerce between
to the power OF that State, and is en-
| titled to its protection In regulating
commerce among the States, Congress might
provide that any person engaged III such COM
merce should be enti led to such accomoda-
| tons of the inns in the several States through
which he might pass in the prosecution Of
| this business; aud perhaps, upon the theory
4
prise, might provide that he should be ad-
lnitted to a theater and other places Of amuse-
ment in the State where he might be tempo
rarily sojourning during the transaction OF
his business. Such provision in regard TO
theaters, Mr.. Carpenter says, would be some
what fantastic as regulation OF commerce,
and yet it might be sustained rs relating to a !
subject over which Congress has jurisdiction. |
But the bill does not rest upon this ground, |
because its provisions are not confined 20
persons engaged in such commerce.
The Fourteenth Amendment, it is con-
tended by the supporters Of the bill, confers
the required power upon Congress. Upon
this Mr.. Carpenter joins issue with them, aud
emphatically declares that the clause which
provides that ''No State shall deny to any
person within its jurisdiction the equal pro-
lection Of the laws has no application to this
subject, and especially to the jury clause of
the bill, and that it is equally evident that
the third clause of the Fourteenth Amendment.
Nor shall any State deprive any person Of
llfe liberty or property, without due process
of law" has no such application. This is
evident from the fact that women and chill
dren are citizens Of the United States, and the |
fact that they are excluded from serving as
jurors il every State Of the Union, and the y
fact that no one rretends or Chains that in
consequence Of such ineligibility they are q
deprived of life, liberty or prop rty. or the
equal protection Of the laws. Ii it be true, z
as maintained by Morton and others, that c
these provisions of the Fourteenth Amend y
ment require that colored persons should be c
eligi lie to serve as jurors in S ate courts, y
hen the bill ought to be so amended as to T
provide that women and babes at the breast 2
should be SO eligible because they are persons, II
qHally with colored citizens, entitled under Z
hese two clauses of the amendment to every e
hing secured to colored citizens. Mr. Carpen- 8
er next quotes from the 10Th Wallace Re- h
,orts, page 70, decision of the Supreme
jourt declaring that the distinction between
itzenship Oft the United States and citizenship : :.
f State is clearly recognized and estab- Il
shed by this amendment (he Tourteenthl, d.
be Court adding "that with a few exceptions c.
such, for instance, as the prohibition against -
r-p0st .tacto laws bills of attander and laws q
npalrlng the obligations of CONTRACTS tile st
tire domain of the privileges and immunities hf
citizens of the States as above defined, lies ~
iHtin the constitutional and legislative pow r,
rs Of the States, and ,ciHoM that of the Fed in
tal Governments; and the Court held that the WI
ourteenth Amendment makes 10 alteration -
| this particular"
The Supreme Court of the United States, in o.
le 10th of Wallace's Reports, page 1873, de- ''
ded that citizen of the United States as ~
" III the courts of a State. Now, if it be :
1t ri ght Of citizen of the United States, az
such, to be admitted to practice law in a -
ate court, upon what ground, Mr.. Carpen-
I argues can it be maintained that it is the TN,
,ht of citizen of the United States, as era
oh, to sit in jury of State court. Juries 81
State courts perform a most important on
notion in the administration of Justice by TO
e State government. Ii excuiing person no
pm the admin tration Of justice be a denial SOC
nm OF the equal protection of the laws If
,uld not the same consequence follow co,
IN his exclusion from the Legislature the
lich makes tie laws, and from the bench SUI
lich construes them; and if the argument ~
ablishes the risht Of every person in the VIII
ate to serve as a juror, is it not manifest the
At it also establishes his right to participate wa
making and constituting the laws? And
it is well known that in proposing the ]
tteenth Amendment, which secures TO every DOC