Year: 1874

case that is known as the Grant parish
case is to be argued in the Supreme Court of
the United States during the present term. 1t
is an appeal from decision of Mr.. Justice
Bradley, which arrested judgment in the case
of The United States vs.. Nash and others, in
dicted and convicted for conspiracy and MUIR
der under the Enforcement act Of 1870 The
appeal will require decision by the Supreme
Court of the meaning and effect Of the clause
placed at the end Of the late amendments of
the federal constitution, by which power is
given to Congress to "enforce" those amend
ments "by appropriate Legislation" The
amendments prohibited the States from doing
certain things. This, however, was not the
first time that the federal constitution re-
stricted the power of the States in relation to
matters that were otherwise within their ex-
elusive province The original constitution
contained ten or twelve such prohibitions,
among the most familiar of which are those
which prevent the passage of any er post facto
law or law impairing the obligation of
contracts. But the constitution did not
create in Congress any special or
substantive legislative power to en-
force these prohibitions 1t was assumed
that they would enforce themselves, SO to
speak, through the operation of the judicial
power, which, being made to extend to all
cases arising under the constitution, would
reach any case in which State law violated
one of these prohibitions, and thus it would
be declared void and become imperative. ALI
the legislation that would be needful would
consist in provisions that would keep open
the access to the Supreme Court Of the United
States, which would be accomplished by pro-
viding for the transfer to that ultimate tri-
bunal of any case that involved the construc-
ton or operation of any part Of the federal
constitution. The trainers Of the constitution
therefore did not consider it needful or wise
to provide for ''enforcing" the prohibitions
addressed to the States by the creation Of a
special and affirmative legislative power in Con-
gress. They intended that Congress should
have nothing to do with enforcing these pro-
hibihons beyond the provision of the neccs-
sary means for enabling the judicial power to
make them effectual as the supreme law of the
land.


But now we have amendments of that con-
stitution which are claimed to have enlarged
the Legislative power of Congress by the
creation Of substantive and affirmative power
to do what is described as s'enforcing" the
new prohibitions which those amendments
have addressed to the States. 1t is to be OBJ
served that these new prohibitions do not differ
in their nature from the old ones. Like the
old ones they are simply declarations or pro-
visions of fundamental and imperative char
acter that the States shall not do certain
things. Thus, the fourteenth amendment de-
clares that 'no State shall make or enforce
any law which shall abridge the privileges or
immunities Of citizens of the United States,
nor deprive any person of life, liberty or
property without due process Of law, nor deny
to any person within its jurisdiction the equal
protection of the laws and the fifteenth
amendment declares that "the right Of citi-
zens of the United States to vote shall not be
denied or abridged by the United States or
by any State on account Of color, race or pre-
vious condition of servitude." 1t is plain that





cial power of the United States without any
Intervention by Congress, if left to their own
operation.


But what is the meaning and operation of
the clause which gives Congress power to
''enforce" these provisions "by appropriate
parture from the system that has always pre-
vailed in regard to the operation of those
restrictions which are imposed on the States,
which they were left to be enforced by the
judicial power? Does It create in Congress
an active, affirmative power of legislation,
by which, without waiting for any breach Of
the inhibitions bya State, can enter State
and make laws on any subject that touches
the enjoyment of life, liberty or property, or
the equal protection Of the laws, or the ex-
ercise of the elective franchise by colored
persons, or anything else that belongs to the
privileges or immunities of citizens OF the
United States? Is this the result of declar-
ing by an amendment Of the federal
constitution that State shall not do
what the amendment forbds it to do,
and then saying that Congress may enforce
the prohibition by appropriate legislation?
1t is quite obvious that if this is the effect
there is no limit to the Capitalization that it
produces. On the other hand, if the 'cn-
forcing" clause of these amendments is to be
limited in its construction to the provision Of
means for enabling the judicial power of the
United States to declare any State law inoper-
alive that violates one of these prohibitions,
or to the definition of the rights that pertain
United States citizenship, the whole
country, without any exception of party or
section, will be able to regard the amendments
as wise and salutary improvements of our
federal system. The decision of these ques-
tions by the Supreme Court will therefore be
looked for with great interest