The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-11-20


proceeds upon the ground that the power of
Congress to legislate for the protection of the
rights and PRIVILEGES secured by the Four
tenth amendment can not be brought into
activity except with the view, and as it may
become necessary, to correct and annul State
laws and State proceedings in hostility to
such rights and privileges In the absence OF
State laws or State action, adverse to such
rights and privileges, the Eation may not
actively interfere for their protection and
security Such [ understand to be the posi-
ton of my brethren Ii the grant to cOlOred
citizens of the United States of citizenship in
their respective States, IMPORTS exemption
from race discrimination, in their States in
respect of the civil rights belonging to cti-
Zenship then, to hold that the amendment
RENTS that right to the States for their pro-
lection, primarily, and stays the hands of
the nation until it is assailed by State laws or
State proceedings, is to adjudge that the
amendment, so far from enlarging the pow
ers of Congress-as we have heretofore said
it did-not only curtails them, but reverses
the policy which the general government has
pursued from its very organization. Such an
Interpretation of the amendment is a denial
to Congress of the power, by appropriate leg
isation, to enforce one of its provisions.
In view of the circumstances under
which the recent amendments were
incorporated into the constitution,
and especially in view of the peculiar char
acter of the new rights they created and
secured, it ought not to be presumed that the
general government has abdicated its author
ity, by national legislation, direct and pri
mary in its character, to guard and protect
privileges and immunities secured by that
instrument. Such an Interpretation of the
constitution ought not to be accepted if it
be possible to avoid it. Its acceptance would
lead to this anomalous result: that whereas,
fo tho tI,a
sanction of this court, passed the most strn-
gent Incorporating directly and primarily
upon States and their officers and agents as
we'll as upon individuals-in vindIcatou of
slavery and the right of the master, it may
not now, by legislation OF a like primary and
direct character, guard, protect and secure
the freedom tablshed and the most essen
tial right of the citizenship granted by the
constitutional amendments / venture with
all respect for the opinion of others, to in
sst that the national legislature may, with
out transcending the limits of the constitu-
ton, do for human liberty and the funda-
mental rights of American citizenship what
it did, with the sanction of this court, for
the protection of slavery and the rights of
the masters OF fugitive slaves If fugitive
slave laws, providing modes and prescribing
penalties whereby the master could
seize and recover his fugitive slaves were
legitimate eXertions of an implied power
to protect and enforce right recognized by
the constitution, why shall the hands of Con-
greSs be tied, so that-under an express power,
by appropriate legislation, to enforce a con-
stitutional provision, granting citizenship
it may not by means of direct legislation,
bring the whole power of this nation to bear
upon States and their officers, and upon such
individuals and corporations exercising pub
lie functions as assume to abridge impair or
deny rights confessedly secured by the SUI
preme law OF the land2
1t does not seem to me that the fact that,
by the second clause of the first section of
the Fourteenth amendment, the States are
expressly prohibited from making or enforc-
ing laws abridgng the privileges and immu-
mites of citizens of the United States, fur
nishes any sufficient reason for holding or
maintaining that the amendment was in
tended to deny Congress the power, by gen.
eral, primary and direct legislation, OF pro-
tectlng citizens of the United States being
also citizens of their respectives States,
against discrimination, in respect of their
rights as citizens, founded on race, color, or
previous condition of servitude
AN ILLEGITIMATE INTERPRETATION.
Sgch an Interpretation of the amendment
is plainly repugnant to its fifth section, con-
ferring upon Congress power, by appropriate
to enforce not merely the provs-
ions containing the prohibitions upon the
States, but all of the provisions of the amend
ment, including the provisions, express and
implied of the grant of citizenship in the
first clause of the first section of the
article. This alone is sufficient for holding
that Congress is not restricted to the enact
ment of laws adapted to counterfeit and
redress The operation of State legislation, or
the action of State officers of the character
prohibited by the amendment. 1t was per-
feCtly well known that the great danger to
the equal enjoyment by citizens of their
rights, as citizens, was to be apprehended
not altogether from unfriendly State legisla-
ton, but from the hostile action of corpora
tions and individuals in the States. And it
is to be presumed that it was intended, by
that section, to clothe Congress with power
and authority to meet that danger. If the
rights intended to be secured by the act of
1875 are such as belong to the citizen in
common or equally with other citizens in
the same State, then it is not to be
denied that such LEGISLATION is appropriate
to the end which Congress is authorized to
accomplish, viz, to protect the citizen, in
respect of such ri@h.s, against discrimination
on account of his race. As TO the prohibit
ton in the fourteenth amendment upon the
making or enforcing of State laws abridging
the privileges of citizens of the United States,
it was impossible for any State to have en-
forced laws of that character. The judiciary
could have annuled all such legislation un-
der the provision that the constitution shall
be the supreme law of the land, anything in
the constitution or laws of any State to the
con trary Notwithstanding The States were
already under an implied prohibition not to
abridge any privilege or immunity belong
ing to citizens of the United States as such.
Consequently, the prohibition upon State
laws hostile to the rights belonging to citi-
zens of the United States was intended only
as an express limitation on the powers OF the
States, and was not intended to diminish, in
the slightest degree. the authority which the
nation has always exercised, of protecting,
by means of its own direct legislation, rights
created or secured by the constitution. The