Savannah morning news. [volume] (Savannah) 1868-1887, 1883-10-26
THE CIVIL RIGHTS CASE.
A MORE DETAILED TENT OF
THE DECISION.


viduaIs COrrectabIe in the state Courts
Only
WASHINGTON, Oct. 25.-Justice Brad
ley, who gave expression to the decision
Of the United States Supreme Court re-
Gently in the civil rights cases, has lust
received from the printer the first revised
copy of his opinion. Although its salient
features were fairly well set forth in the
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 in
teresting. After citing 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
/ constitutional power to make such a lawg
OF course no one will contend that the
power to pass it was contained in the
| Constitution before the adoption of the
last three amendments. The power is
sought first in the fourteenth amend
ment. x The first section
(Which is the one relied on) after decIar-
ing who shall be citizens of the United
States and of the several States, is pro-
hibitory in its character, and prohibi-
that no State shall make
| 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 life, liberty or pro-
perty without due process of law. nor
deny to any person within its Jurisdiction
equal protection of the laws. 1t is State
action of a particular character that is
prohibited. Individual invasion of indi-
vidual rights is not the subject matter Of
the amendment. 1t has deeper and broad
| er scope. 1t nullities and makes void State
| legislation and State action of every kind
which impaIrs the privileges and immuni-
| ties 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 equal pro-
lection of the laws. 1t not only does this.
but in order that the national will, thus
declared, may not be mere 6Futunl fuImen.
the last section of the amendment invests
Congress with power to enforce it by ap-
propriate legislation, to enforce
prohibition, to adopt appropriate
! legislation for correcting the ef-
fects of such prohibited State laws.
and State acts, and thus to render them
! etfectually null, void and innOcuous. This
is the legislative power conferred upon
| Congress, and this is the whole Of it. 1t
does not invest Congress with power to
to legislate upon subjects which are with
in the domain of State legislation, but to
provide modes of relief aginst State legis-
latiOn or State action of the kind referred
to. 1t does not authorize Congress to
create code of municipal law for the
regulation Ofprivate rights, but to provide
modes Of redress against the operation
of State laws, and the action of State
officers, executive or judicial, when these
are subversive of the fundamental rights
specified i'll the amendment. Positive
rights and privileges are undoubtedly Sc
cured by the fourteenth amendment, but
they are secured by way of prohibition
against State laws and State proceedings
affecting those rights and privileges, and
by power given to Congress to legiSlate
for the purpose of carrying such prohiDi-
tiOn into elect. and such legislation must
necessarily be predicated upon supposed
State laws or State proceedings
and be directed to the correction of their
operation and effect. . g = 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 COnstitu-
tion 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 jurisdic-
tiOn over contracts, so as to enable par
ties to sue upon them in those courts.
1t did, however, give power to provide
the remedies by which the impairment
of contracts by State legislation might be
c0unteracted and corrected, and this
power was exercised. The remedy which
Congress actually provided was that con-
tained in the 25th section of the judiciary
act of 11S9, giving to the Supreme Court of
the United States jurisdiction by writ of
error to review the final decisions of the
State courts whenever they should sustain
the validity of a State statue or authority
alleged to be repugnant to the COnstItu-
tiOn or laws Of the United States.
But under that or any other law it must
appear as well by allegation, as proof at
trial, that the Constitution had been viO-
lated by the action of the State Legisla-
ture. Some obnoxious State law passed,
or that might be passed, is necessary to
be assumed in order to lay the foundation
of any Federal remedy i'm the case, and
for the very sufficient reason that cOnsti-
tutiOnal prohibition is against state laws
impairing the obligation of contracts; and
so i'll the present case, until some State
law has been passed. or some State
action through its officers or
agents, has been taken adverse to the
rights of the citizens sought to be pro-
tected by the fourteenth amendment, no
said amendment nor any proceeding un-
der such legislation can be called into ac-
tivity; tor the prohibitions of the amend
ment are against State laws and acts done
under State authority.
An inspection of the law herein quoted
shows that it makes no reference what
ever to any supposed or apprehended
violation of the fourteenth amendment
on the part of the States. 1t is not predi-
catad on any clIph VinW II OrOpppdS
directo to declare that certain acts COM
mitted by individuals shall be demeed
offensive and shall be prosecuted and pun
ished by proceedings in the courts of the
United States. 1t does not profess to be
corrective OF any constitutional wrong
committed by the States. 1t does not
make its operation to depend upon any
such wrong committed. 1t applies
equally to cases arising in States
which have just laws respecting
personal rights of citizens, and whose
authors are ever ready to enforce such
laws, as to those which arise in States
that may have violated the prohibition of
the amendment. In other words, it steps
into the domain local juris prudence and
lays down rules for the conduct of indi-
viduals in society towards each other,
and imposes sanctions for the enforce
ment of those rules, without referring in
any manner to any supposed action of the
State or its authorities. If this legislation
is appropriate for enforcing the prOhibi-
tiOn of the amendment it is difficult
to see where it is to stop. Why may not
Congress, with equal show of authority,
enact a code of laws for the enforcement
and vindicatiOn of all rights of life,
liberty and property? If it is not sup
possible that the States may deprive per-
sons of life, liberty and property without
due process of law (and the amendment
itself does suppose this J, why should not
Congress proceed at once to prescribe
due process of law for the protection of
every one of these fundamental rights in
every possible case as well. as to pre-
scribe equal privileges IN inns, public
conveyances and theatres. The truth is
that the implication of power to legislate
in this manner is based upon the assump-
tion that if the States are forbidden TO
legislate or act in a particular way on a
particular subject, and power is conferred
upon Congress to enforce prohibition, this
gives Congress power to legislate gener-
ally upon that subject, and not merely
power TO provide modes of redress against
such State legislation Oh action. The
assumption is certainly unsound. 1t
is repugnant to the tenth amendment
of the Constitution, which declares
that powers not delegated to the
United States by the Constitution,
nor prohibited by it to the States, are re-
served to the States respectively, or to
the people,
Justice Bradley then refers to the fact
that the fourth section of the act under
consideration, which relates to the dis
elimination on account of race or color in