National Republican., 1883-10-26
THE DECISION IN DETAIL.
Opinion Of the Supreme Court in the Civil
Rights Cases.
The Reasoning by Which the Court
Reached Its Conclusions
Unconstintionality Of the Congressional Act Dis
Cussed al Length.
a judicial Review of the Arguments For
and Against the Act.

Justice Bradley, who gave expression to
the decision of the United States supreme
court recently in the civil rights cases. has
just received from tbs printer the first revised
copy of his opinion.
Although its salient features were fairly
we'll set forth in tho abstract made for the
press at the time, its reasoning and the steps
by which the court reached its conclusions
on the several points involved are new and
interesting. After quoting the first two sec
tions of the act, and stating briefly what he
understands to be their purport and effect,
Justice Bradley says: HAS congress consti-
tutional power to make such q law OF course
no one will contend that the power to pass 1t
was contained in the constitution before the
adoption of the last three amendmenti. The
power is sought first in tho fourteenth
amendment. The first section
(which is the one relied
on) after declaring who shall be
citizens of the United States and of the sew
eral states, is prohibitory in its character and
prohibitory upon the states. 1t declares that
no state shall mako or enforce any law which
shall abridge the privileges or immunities Of
citizens Of the United States, nor shall any
state deprive any person OF lie, liberty, or
property without due process of law nor deny
to any person within its jurisdiction the equal
protection of the laws. IL is state action of
a particular character that is prohibited. In
dividual invasion of individual rights is not
the subj ect matter of the amendment. 1thas
q deeper and broader scope. 1t nullities and
makes void all state legislation and state ac-
tion of every kind, which impairs the privi-
leges and immunities of citizens of the United
states, or which Injuries them in life, liberty,
or property without due process of law, or
which denies to any OF them tho equal pro-
lection of the laws. 1t not only does this,
but, in order that the national will thus de-
clared may not he a mere brutum fttlmen, tho
last section of the amendment invests con-
gress with power to enforce it by appropriate
legislation. To enforce what? To enforce
the prohibition. To adopt appropriate legis.
lation for correcting the effects of such pro-
hibted state laws and state acts, and thus to
render them etfectually null, void, and in
noeuous. This is the legislative power con-
ferred upon congress, and this is the whole
of it. 1t does not invest congress with power
are within the domain of state legisla-
tion, but to provide modes of re-
lief against state legislation or state action
of the kind referred to. 1t does not authorize
congress to create o code of municipal law for
the regulation of private rights, but to pro-
vide modes of redress against the operation
of state laws, and the action of state officers,
w
sive of the fundamental rights specified in the
amendment. Positive rights and privileges
are undoubtedly secured by the fourteenth
amendment; but they are secured by way Of
prohibition against state laws and state pro-
ceedings affecting those rights and privileges,
and by power given to congress to legslate
for the purpose Of carrying such prohibition
into effect; and such legislation must neces-
sarily be predicated upon such supposed state
laws or state proceedings, and be directed to
the correction of their operation and effect
An apt illustration of this distinction may
be found in some of the provisions of the
original constitution. Take the subject OF
contracts for example The constitution
prohibited the states from passing any law
impairing the obligation of contracts. This
did not give to congress power to provide
laws for the general enforcement of contracts
nor power to invest the courts of the United
States with jurisdiction over contracts, so as
to enable parties to sue upon them in those
courts. 1t did, however, give the power tc
provide remedies by which the impairment
of contracts by state legislation might bt
counteracted and corrected; and this power
was exercised. The remedy, which congress
actually provided, was that contained in the
twenty fifth section of the Judiciary act O.
1859, giving to the supreme court of thu
United States jurisdiction by writ of error to
review the final decisions Of state court
whenever they should sustain the validity o.
state statue or authority alleged to be re
pugnant to the constitution or laws of thu
United States.
But under that or any other lawit must ap
pear as well by allegation as proof of the tria
that the constitution had been violated by tn,
action of the state legislature. Some obnoxi
Gus state law passed or that might be passed i
necessary to be assumed in order to lay til,
foundation of any federal remedy in the case
aud Gov tla al l,at . 1,
constitutional prohibition is against stat,
laws impairing the obligation of contracts
And SO in the present case, until some stat
law has been passed or some state actor
through its officers or agents has been takel
adverse to the rights of citizens sought to b.
protected by the fourteenth amendment, N,
legislation of the United States under saiC
amendment, nor any proceeding under sucl
legislation, can be called into activity, fo
the prohibitions of the amendment are agains
state laws and acts done under state authority
An inspection of the law here in question
shows that it makes no reference whatever
to any supposed or apprehended violation o
the fourteenth amendment on the part of the
states. 1t is not predicated on any sucl
view. 1t proceeds ex directo to declare tina
certain acts committed by individuals shal
be deemed offences, and shall be prosecuted
and punished by proceedings in the courts o.
the United States 1t does not profes
to be corrective of any constitutions
wrong comhiitted by the states;
does not make its operation to dc
pend upon any such wrong committed
applies equally to cases arising in state
which have the iustest laws respecting tn
personal rights of citizens, and whose author
tiles are ever ready to enforce such laws, ~
to those which arise in states which ma,
have violated the prohibition of the amend
ment. In other words, it steps into tn
domain of local Jurisprudence and lays dow
rules for the conduct of individuals in societ,
toward each other, and imposes sanctions 70
the enforcement Of those rules, without re
ferring in any manner to any supposed
action of the state or its authorities.
If this legislation is appropriate for enforc
ing the prohibition of the amendment it 1
difficult to see where it is to stop Why ma,
not congress with equal show of authort,
enact code of laws for the enforcement AM
vindication of all rights of life, liberty, anC
property2 If it is not supposable that the
states may deprive persons of life, liberty
and property without due process of Law
land the amendment itself does suppose this
why should not congress proceed at once Il
prescribe due process of law for the protec
ton of every one of these Fundamental
rights in every possible case, as well as Il
prescribe equal privileges in inns, public con
veyances, and theatersY The truth is tha
fhe implication of power TO legislate in thi
manner is based upon the assumption that /
the states are forbidden to legslate or act il
q particular way on particular subject, ant