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

PROVISIONS OF InlS aDenQnenH Inc logic Oh
the opinion of the majority of the court
the foundation upon which its whole reason
ing seems to rests, that the general govern
ment cannot in advance of hostile State
laws or hostile State proceedings actively IN
terfere for the protection of any of the rights,
privileges and immunities secured by the
Fourteenth amendment. 1t is said that such
rights, privileges, and lmmunities are secured
by way of prohibition against State laws and
State proceedings affecting such rights and
privileges, and by power given to Congress
to legislate for the purpose of carrying such
prohibition into effect; also, that congress
ional legislation must necessarily be predi-
Gated upon such supposed State laws or State
proceedings, and be directed to the correction
of their operation ana effect.
In illustration of its position, the court re-
fers to the clause of the constitution forbid
ding the passage by State of any law inn
pairing the obligation of contracts. That
clause does not, l submit, furnish a proper
illustration OF the scope and effect of the fifth
section of the Fourteenth amendment No
express power is given Congress to enforce,
by primary direct legislation, the prohibition
upon State laws impairing the obligation of
contracts. Authority is indeed, conferred to
enact all necessary and proper laws for carry
ing into execution the enumerated powers of
Congress, and all other powers vested by the
constitution in the governments of the United
States or in any department or officer thereof.
And, as heretofore shown, there is also, by
necessary implication, power in Congress, by
legislation, to protect a right derived from
the national constitution. But prohibition
upon State is not power in Congress or in
the national government. 1t is sim ply de-
NAL of power to the State. And the only
mode in which the inhibition upon State
laws impairing the obligation of contracts
can be enforced is, indirectly, through the
courts, in suits where the parties raise some
question as to the constitutional validity of
such laws The judicial power of the United
States extends to such suits, for the
reason that they are suits arts
ing under the constitution. The Four
tenth amendment presents the first instance
in our history of the nvestiture of Congress
with affirmative power, by legislation, to in
force an express prohibition upon the States.
Is is not said that the judicial power of the
nation may be eXerted for the enforcement
OF that amendment. No enlargement of the
judicial power was required, for it is clear
that had the fifth section of the Fourteenth
amendment been entirely omitted, the judi
cary could have stricken down all State laws
and nullied all State proceedings in HOSTILE
ty to rights and privileges secured or recog-
nized by that amendment The power given
is, in terms, by congressional legislation, to
enforce the provisions of the amendment.
The assumption that this amendment con-
SlStS wholly OF DTOnlDIUlODS upon SLdIe laws
and State proceedings in hostility to its pro,
visions, is unauthorized by its language.
the first clause of the first section-"all per-
sons born or naturaliZed in the United
States, and subject to the jurisdiction there
of, are citizens of the United States, and of
the State wherein they reside"-is OF a dis
tinctly affirmative character. In its applica-
ton to the colored race, previously liberated,
it created and granted as well citizenship of
the United States, as citizenship of the State
in which they respectively resided 1t
introduced all of that race, whose
ancestors had been imported and sold
as slaves, at once, into the political
community knows as the People of the
United States" They became, Instantly
citizens of the United States, and of their re-
spective States Further, they were brought
by this supreme act of the nation within
the direct operation of that provision of the
constitution which declares that 1.-THE citi-
zens of each State shall be entitled to all
privileges and immunities of citizens in the
several States" Art. 4, sec. y
The citizenship thus acquired by that race,
in virtue of an affirmative grant by the
nation, may be protected, not alone by the
judicial branch of the government, but by
congressional legislation of a primary, direct
character; this, because the power of Con-
gress is not restricted to the enforcement of
prohibitions upon State laws or state action
1.-The provisions of this article" of amend
ment; not simply those OF a prohibitive
character but the provisions-all of the pro-
and prohibtiVe of the
amendment. 1t is, therefore, a grave mis-
conception to suppose that the fifth section
of the amendment has reference exclusively
to express prohibitions upon State laws or
State action. If any right was created by
that amendment, the grant of power, through
appropriate legislation, to enforce it's provis-
ions authorizes Congress, by means of legis-
lation, operating throughout the entire
Union, to guard, secure, and protect that
right.
1t is, therefore, an essential inquiry what,
if any, right, privilege or immunity was
given by the nation to colored persons
when they were made citizens of the State
in which they reside? Did the national
grant of State citizenship to that race, of its
own force. invest them with any rights,
privileges and immunities whatever? That
they became entitled upon the adoption of
the Fourteenth amendments "to all privileges
ami immunities of citizens in the several
States" within the meaning Of section of
article 4 of the constitution no one, l sup
pose, will for a moment question. What
are the privileges and immunites to which,
by that clause of the constitution, they be-
came entitled? To this it may be answered,
generally, upon the authority of the ad-
judged cases. that they are those which are
fundamental in citizenship in free govern
nient, common to the citizens in the latter
States under their constitutions and laws by
virtue of their being citizens" OF that pro-
vision it has been said, with the approval of
this court, that no other one in the con-
stitution has tended so strongly to con-
stitute the citizens of the United States one
people. Ward VS.. Maryland, IL Wall, 430
Corfeld vs. Coryell. Wash. c. c., 81; Paul
VS.. Virginia, Wall, $50; Slaughter-house
Cases, 16 10, ~
STATES CANNOT DISCRIMINATE
Although this court has wisely forborne
any attempt, by comprehensive definition,
to indicate all of the privileges and immuni-