Delaware state journal. [volume] (Wilmington, Del.) 1870-1883, 1883-11-01
THE CIVIL RIGHTS ACT.
Text OF the Supreme courts De-
ctsion Declaring the Act UncOn-
stltutfOunI,


who gave expression to the decision OF
the United States Supreme Court recently
in the Civil Rights cases, has last re-
osivsd from the printer the first revised
copy of his opinion. Although Its salient
features were fairly we'll 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 sew
eral points involved are new and inter-
esting. After quoting the first two
sections Of the sct and stating briefly
what he understands to be their purport
and effect, Judge Bradley says:
Has Congress constitutional power to
make such law OF course no one will |
contend that the power to pass II was
contained in the Constitution before the |
adoption Of the last three amendments. /
The power Is sought, first In the Four
tsenth amendment. The first |
section (Which ia the ons re-
lied on) after declaring who shall be citi
zens of the United States and OF the |
several states ia prohibitory In its char |
aoter and prohibitory upon the states. 1t |
declares that no state shall make or en-
force any law which shall abridge the |
privileges or immupities of citizens OF the |
United States, nor shall any state deprive
any person within Its jurisdiction Of the |
equal protection Of the laws. i
1t Ia state action Of particular
character that ia prohibited. Individual
invasion Of individual rights is not
subject matter of the amendment. 1t
has deeper and broader scope. 1t multi
fes and makes void all state legislation
and state action OF every kind which i'm
pairs the privileges 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 the
equal protection Of the laws. 1t not only
| does this, but in order that the national
will thus declared may not be a mere
| brutum tiilmen, the last section Of the
amendment invests Congress with power
to enforce 1t by appropriate legislation.
| To enforce what To enforce the prohi
bitian, to adopt appropriate legislation
for correcting the effects OF such prohib-
tied state laws and state acts, and thus
to render them etfeotually null, void and
innoouous.
This is the legislative power conferred
| upon Congress and the whole OF it. 1t
does not invest Congress With power to
legislate upon subjects which are within
the domain OF state legislation, but TO
provide modes of relief against state
legislation or state action of the kind
referred to. 1t does not authorize Con-
gress to create a code Of municipal law
for the regulation of private 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 in the amendment. Positive
rights and privileges are undoubtedly Sc
cured by the Fourteenth amendment, but
they are secured by prohibition against
state laws and the state proceedings
affecting these rights and privileges, and
by power given to Congress to legislate
for the purpose of carrying suoh prohibit
bition into effect, and such legislation
must necessarily be predieated 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 obliga-
| tlUu Vi CUntThutb. lulb ulu MOI give 10
Congress the power to provide laws for
the general enforcement Of contracts, nor
power to invest the courts of the United
States with jurisdiction over contracts 30
as to enable parties to sue upon them
in those courts. 1t did, however,
give the power to provide remedies
by which the Impairment of con.
tracts by state legislation might be
l 10Y a nt cd
exercised. The remedy which Congress
actually provided was that contained in
the twenty fifth section Of the judiciary
act Of 1889, giving to the Supreme Court
of the United States Jurisdiction by writ Of
error to review the final decision of state
courts whenever they should sustain the
validity of state statute in authority
alleged to be repugnant to the Constitution
or laws Of the United States.
But under that or any other law 1t
must appsar as well by allegation as
proof at the trial that the Constitution
has been violated by the action of the
state Legislature. 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
case, and for the very sufficient reason
that the Constitutional prohibition ia
against state laws impairing the obliga-
tion of contracts. And 30 in 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 citizens sought to be protected
, by the Fourteenth amendment, no lepis.
lation OF the United States under said
amendment nor any proceeding under
such legislation can be called into activity:
, for the prohibitions of the amendment
ale sgainst state laws and acts done under
state authority. An inspection
, OF the law herein questioned shows that
!, it makes no reference whatever to any
supposed or apprehended violation of the
Fourteenth amendment on the part of
, the states. 1t is not predicated on any
such view.
> 1t proceeds ex directo to declare that
certain acts committed by individuals
shall be deemed offenses and shall be-
prosecuted and punished by proceedings
, in the courts of the United States. 1t
does not profess to be corrective of any
constitutional wrong committed by the
states it does not make its operation
to depend upon any such wrong com
mitted In other words, it steps into the
domain of local jurisprudence and laws
) down rules for the conduct of individuals
in society towards each other and i'm
poses sanction for the enforcement of
these rules, without referring in any
manner to any supposed action of the
state or its authorities.
If this legislation ia appropriate for en-
forcing the prohibitions of the amend
meut, it is difficult to see where it is to
stop, why may not Congress with equal
show of authority exact code of laws
for the enforcement and vindoation OF all
rights of liberty and property If it ia
supposeable that the states NAV
deprive her SONS Of life, lib
erty and property without due
process of law, (and the amendment itself
does suppose this), why should not Con.
gress proceed at once to prescribe due
process Of law for the protection of every
one of these fundamental rights in every
possible case as we'll as to prescribe eansl
privileges in inns, public conveyances
and theatres
The truth is that the application of a
power to legislate in this manner is based
upon the. assumption that, II the states
are forbidden to legislate or act in a par
ticular way or particular subject and
power is conferred upon Congress- to en-.
IF the prohibition, this gives Congress
power to ,esis.ate generally upon that
subject and not merely power to provide
modes OF redress against suoh stata lapia