Year: 1875

"hSeS ohu IuedtTes, WHICH al
most moro than any others may be de-
scribed as necessarily and peculiarly
lying among the immense mass of leg.
islative powers, which embrace every.
thing In the territory of q State not
surrendered to the General Govern.
ment, which can be most advantageous.
ly exercised by the States. In search.
Ing for subjects peculiarly within the
cognizance of State control one
would at once select the identical in
stltutions which'are mentioned in this
Dill: IL wished to give examples of
such matters as were especially and
necessarily within the control of State
regulations aud laws, would select
these Identical institutions which are
now aought to be invaded by Federal
law.


To talk of their use and endowment
as fundamental rights" is simply to
talk nonsense. To talk of them as
rights belonging In any way or in any
way flowing from a mans relation to
the Government of the United States
is equally absurd. If you wish to
know their nature and necessary
limitations, inquire into the source of
their creation, what made them, what
can unmake. and destroy them, and
do so lawfullys What is thaty 1t is
the power of the State in which these
institutions are found. To the States
control, and necessarily to its protec-
tion and to its regulation, must be
confded the rights or the privileges
that flow from institutions created by
its laws and by its laws alone. If the
right grew from the Govern
ment OF the United States,
its laws can enforce and pro.
tect; but if the right has its root in
the constitution and laws of State,
then to its source of existence al one
can 1t look for enforcement and pro-
lection. Amy other rule would throw
our entire system of government into
inextricable confusion.


The language l read Just now de-
scribing this "immense mass of legis-
lative powers, which embrace every
thing in the territories of State"
was used first by Chief Justice Mar
shall in 1924 in the case oflGibbons cs.
Ogden, and it has been cited by the
Supreme Court of the United States
with admiring acceptance from that
day until this, and by every court in
the country that has been called upon
to pass upon questions defining the
constitutional barriers of power be.
tween tho States and the Federal Gov
ernment.


Now, does it not appear too absurd,
almost impossible, to imagine Con-
gress gravely proposing that the great
Federal Government of our Union
shall be attending to the duties of q
hotel clerk; that we shall be examin.
ing into the relative ad antages and
condition of the bedrooms of an inn,
or deliberasing upon the measure oi
duty of the head waiter ut q hotel,
legislating SO that equal enjoyment al
the table d'h0te is given to the guests,
or supervising the railway conductor,
and taking care by law that he assigns
gers, or assuming the functions of the
theatrical manager or his usher, shall
insist that he have always present in
his mind the dignity and power of the
| great Government of the United


States. No other illustration is need


ed to exhibit the absurdity of this bill


than the mere suggestion to assign du
ties of such q nature to such a Gov.


ernment. 1t seems to me that when


the Supreme Court of the United


States shall be found sitting in grave
judgment upon the mighty question


whether A or B have had equal seat


or equal comfort or equal enjoyment


at hotel or in their transportation


or in some theater where their idle


ness and pleasure may have led them


then the position will be SO absurd


that the case will be laughed out o1


court, even if there was no other way


to get rid of it.


l do not know but that an amend


ment should be offered to this bill


providing not only that this equal en-
|joyment of hotels should be guaran


teed by the United States, but thai


money should be appropriated to pay


for the accommodation, the ticket o.


the railway, or for entrance to the


theatre from the Treasury of the


United States, and that in default o1


the provision of such money an &C


tion should lie against the Treasure


to compel its payment with fine anS
imprisonment in case he should refuse
One would be just as much within tn
!; power of Congress as the other; an,
one, in my opinion, would meet jus
as much respect at the hands of tn
!; Supreme Court, when the case shoul,
go there, as the other; for impecu
mostly is as much q condition unde


the fourteenth amendment as race o
: color, and entitled to the same protec
: tion. If these interpretations, enfrar
J chised and created by the people of
J State through their Legislature, cal
: be taken from under the State contro


If its places of public amusement ca
l be removed beyond the regulations Q
its police power; if its licensed house
: of public entertainment may not b
: regulated by its laws, what is ther
left of safety or peace or security i
g any neighborhood or any communit
/ in any State? Its most essential pov
D ers and duties will be gone, to use til
0 language of the Supreme Court, whic
r ! have just read; the State will be fe
tered and degraded. Such is tn
r language of Mr.. Justice Miller, d,
! livering the opinion of the court. II