ADDRESS ON THE CIVIL RIGHTS ACT.
Project Gutenberg EPUB3 edition
Ingersoll, Robert Green and Widger, David
If the 15th Amendment invested the citizens of the United States with a new constitutional right—that is, the right to vote—and if for that reason that right is within the protecting power of Congress, then I ask, if the 14th Amendment made certain persons citizens of the United States, did such citizenship become a constitutional right? And is such citizenship within the protecting power of Congress? Does citizenship mean anything except certain "rights, privileges and immunities"?
Is it not an invasion of citizenship to invade the immunities or privileges or rights belonging to a citizen? Are not, then, all the immunities and privileges and rights under the protecting power of Congress?
The 13th Amendment found the negro a slave, and made him a free man. That gave to him a new constitutional right, and according to the Supreme Court, that right is within the protecting power of Congress.
What rights are within the protecting power of Congress? All the rights belonging to a free man.
The 14th Amendment made the negro a citizen. What then is under the protecting power of Congress? All the rights, privileges and immunities belonging to him as a citizen.
So, in the case of Tennessee vs, Davis, 100 U, S,, 263, the Supreme Court, held that:
"The United States is a government whose authority extends over the whole territory of the Union, acting upon all the States, and upon all the people of all the States.
"No State can exclude the Federal Government from the exercise of any authority conferred upon it by the Constitution, or withhold from it for a moment the cognizance of any subject which the Constitution has committed to it."
This opinion was given by Justice Strong, and acquiesced in by Chief-Justice Waite, Justices Miller, Swayne, Bradley and Harlan.
So in the case of Pensacola Tel. Co. vs. Western Union Tel. Co., 96 U. S., p. 10, the opinion having been delivered by Chief-Justice Waite, I find this:
"The Government of the United States, within the scope of its power, operates upon every foot of territory under its jurisdiction. It legislates for the whole Nation, and is not embarrassed by State lines."
This was acquiesced in by Justices Clifford, Strong, Bradley, Swayne and Miller.
So we are told by the entire Supreme Court in the case of Tiernan vs. Rynker, 102 U. S., 126, that:
"When the subject to which the power applies is national in its character, or of such a nature as to admit of uniformity of regulation, the power is exclusive of State authority."
Surely the question of citizenship is "national in its character." Surely the question as to what are the rights, privileges and immunities of a citizen of the United States is "national in its character."
Unless the declarations and definitions, the patriotic paragraphs, and the legal principles made, given, uttered and defined by the Supreme Court are but a judicial jugglery of words, the Civil Rights Act is upheld by the intent, spirit and language of the 14th Amendment.
It was found that the 13th Amendment did not protect the negro. Then the 14th was adopted. Still the colored citizen was trodden under foot. Then the 15th was adopted. The 13th made him free, and, in my judgment, made him a citizen, and clothed him with all the rights of a citizen. That was denied, and then the 14th declared that he was a citizen. In my judgment, that gave him the right to vote. But that was denied—then the 15th was adopted, declaring that his right to vote should never be denied.
The 13th Amendment made all free. It broke the chains, pulled up the whipping-posts, overturned the auction-blocks, gave the colored mother her child, put the shield of the Constitution over the cradle, destroyed all forms of involuntary servitude, and in the azure heaven of our flag it put the Northern Star.
The 14th Amendment made us all citizens. It is a contract between the Republic and each individual—a contract by which the Nation agrees to protect the citizen, and the citizen agrees to defend the Nation. This amendment placed the crown of sovereignty on every brow.
The 15th Amendment secured the citizen in his right to vote, in his right to make and execute the laws, and put these rights above the power of any State. This amendment placed the ballot—the sceptre of authority—in every sovereign hand.
We are told by the Supreme Court, in the case under discussion, that:
"We must not forget that the province and scope of the 13th and 14th Amendments are different;" that the 13th Amendment "simply abolished slavery," and that the 14th Amendment "prohibited the States from abridging the privileges and immunities of citizens of the United States; from depriving them of life, liberty or property, without due process of law; and from denying to any the equal protection of the laws."
We are told that:
"The amendments are different, and the powers of Congress under them are different. What Congress has power to do under one it may not have power to do under the other." That "under the 13th Amendment it has only to do with slavery and its incidents;" but that "under the 14th Amendment it has power to counteract and render nugatory all State laws or proceedings which have the effect to abridge any of the privileges or immunities of the citizens of the United States, or to deprive them of life, liberty or property, without due process of law, or to deny to any of them the equal protection of the laws."
Did not Congress have that power under the 13th Amendment? Could the States, in spite of the 13th Amendment, deprive free men of life or property without due process of law? Does the Supreme Court wish to be understood, that until the 14th Amendment was adopted the States had the right to rob and kill free men? Yet, in its effort to narrow and belittle the 13th Amendment, it has been driven to this absurdity. Did not Congress, under the 13th Amendment, have power to destroy slavery and involuntary servitude? Did not Congress, under that amendment, have the power to protect the lives, liberty and property of free men? And did not Congress have the power "to render nugatory all State laws and proceedings under which free men were to be deprived of life, liberty or property, without due process of law"?
If Congress was not clothed with such power by the 13th Amendment, what was the object of that amendment? Was that amendment a mere opinion, or a prophecy, or the expression of a hope?
The 14th Amendment provides that:
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. Nor shall any State 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 its laws."
We are told by the Supreme Court that Congress has no right to enforce the 14th Amendment by direct legislation, but that the legislation under that amendment can only be of a "corrective" character—such as may be necessary or proper for counteracting and redressing the effect of unconstitutional laws passed by the States. In other words, that Congress has no duty to perform, except to counteract the effect of unconstitutional laws by corrective legislation.
The Supreme Court has also decided, in the present case, that Congress has no right to legislate for the purpose of enforcing these clauses until the States shall have taken action. What action can the State take? If a State passes laws contrary to these provisions or clauses, they are void. If a State passes laws in conformity to these provisions, certainly Congress is not called on to legislate. Under what circumstances, then, can Congress be called upon to act by way of "corrective" legislation, as to these particular clauses? What can Congress do? Suppose the State passes no law upon the subject, but allows citizens of the State—managers of railways, and keepers of public inns, to discriminate between their passengers and guests on account of race or color—what then?
Again, what is the difference between a State that has no law on the subject, and a State that has passed an unconstitutional law? In other words, what is the difference between no law and a void law? If the "corrective" legislation of Congress is not needed where the State has passed an unconstitutional law, is it needed where the State has passed no law? What is there in either case to correct? Surely it requires no particular legislation on the part of Congress to kill a law that never had life.
The States are prohibited by the Constitution from making any regulations of foreign commerce. Consequently, all regulations made by the States are null and void, no matter what the motive of the States may have been, and it requires no law of Congress to annul such laws or regulations. This was decided by the Supreme Court of the United States, long ago, in what are known as The License Cases. The opinion may be found in the 5th of Howard, 583.
"The nullity of any act inconsistent with the Constitution, is produced by the declaration that the Constitution is supreme."
This was decided by the Supreme Court, the opinion having been delivered by Chief Justice Marshall, in the case of Gibbons vs. Ogden, 9 Wheat, 210.
The same doctrine was held in the case of Henderson et al., vs. Mayor of New York, et al., 92 U. S. 272—the opinion of the Court being delivered by Justice Miller.
So it was held in the case of The Board of Liquidation vs. McComb—2 Otto, 541.
"That an unconstitutional law will be treated by the courts as null and void"—citing Osborn vs. The Bank of the United States, 9 Wheaton, 859, and Davis vs. Gray, 16 Wallace, 220.
Now, if the legislation of Congress must be "corrective," then I ask, corrective of what? Certainly not of unconstitutional and void laws. That which is void, cannot be corrected. That which is unconstitutional is not the subject of correction. Congress either has the right to legislate directly, or not at all; because indirect or corrective legislation can apply only, according to the Supreme Court, to unconstitutional and void laws that have been passed by a Stale; and as such laws cannot be "corrected," the doctrine of "corrective legislation" dies an extremely natural death.
A State can do one of three things: 1. It can pass an unconstitutional law; 2. It can pass a constitutional law; 3. It can fail to pass any law. The unconstitutional law, being void, cannot be corrected. The constitutional law does not need correction. And where no law has been passed, correction is impossible.
The Supreme Court insists that Congress can not take action until the State does. A State that fails to pass any law on the subject, has not taken action. This leaves the person whose immunities and privileges have been invaded, with no redress except such as he may find in the State Courts in a suit at law; and if the State Court takes the same view that is apparently taken by the Supreme Court in this case,—namely, that it is a "social question," one not to be regulated by law, and not covered in any way by the Constitution—then, discrimination can be made against citizens by landlords and railway conductors, and they are left absolutely without remedy.