CHAPTER V:
PRIVILEGES AND IMMUNITIES UNDER THE WAR AMENDMENTS
The Thirteenth Amendment
This amendment simply abolished slavery. Beyond the
declaration that neither slavery nor involuntary servitude, etc.,
should exist within the United States or any place subject to
their jurisdiction, it enacted nothing. (1) It did not even
affect the validity of a note given for a slave when slavery was
lawful. (2) The main purpose of the amendment was to abolish
African slavery, but it equally forbids Mexican peonage or
Chinese cooly trade, amounting to slavery, and the use of the
word "servitude" prohibits all forms of involuntary slavery of
whatever class. (3)
The XIII Amendment was, however, held not to authorize the
passage by Congress of laws requiring equal accommodation in
inns, public conveyances, and places of amusement, for it was
said that the denial of such equal accommodations imposes no
badge of slavery or involuntary servitude upon either race. (4)
Nor does it place any restraint upon the States from passing laws
requiring railway companies carrying passengers in their coaches,
within the State, to provide equal but separate accommodations
for the white and for the colored race, and that the races be
kept separate on railroads and steamboats; or from separating
the races in schools. (5) Nor does it authorize federal courts
to annul sailors' contracts on the plea that they are contracts
for involuntary servitude; for a sailor's contract necessarily
involves, to a certain extent, surrender of his personal liberty,
during the life of the contract, and was not in the contemplation
of this amendment. (6)
And this is all that was enacted by the XIII Amendment, and
all that has ever been decided concerning it by the court of last
resort intrusted with its interpretation. It affected no right
theretofore possessed by any State in the Union, except the right
to establish or recognize slavery or involuntary servitude. It
effected no change in the relations of the Union and the States
composing it to each other, or in the organic structure of the
Nation or the States.
OF THE RIGHTS OF CITIZENS UNDER THE FOURTEENTH AMENDMENT
When the XIII, XIV, and XV Amendments first came up for
interpretation before the Supreme Court of the United States in
the famous Slaughter-House Cases, Mr. Justice Swayne said of
them, "Fairly construed, they may be said to rise to the dignity
of a new Magna Carte." In the light of subsequent decisions
their enactments must be regarded as of much narrower scope.
The XIV Amendment is broader in language than the XIII, yet
no broader than the XIII in conferring any power upon the Federal
government to legislate upon its own initiative. It declared a
new law of citizenship, but the only power of legislation
conferred by it upon Congress was power to enact restrictive
legislation against any State action which might be taken
contrary to the amendment itself.
The language of the amendment is in part:
Section 1. All persons born or naturalized in the United
States and subject to the jurisdiction thereof are citizens
of the United States and of the State wherein they reside.
No State shall make or enforce
(a) Any law which shall abridge the privileges or
immunities of citizens of the United States.
(b) Nor shall any State deprive any person of life,
liberty, or property without due process of law.
(e) Nor deny to any person within its jurisdiction the
equal protection of the laws.
Sec. 5. The Congress shall have power to enforce, by
appropriate legislation, the provisions of this article.
Congress has attempted to pass many acts enforcing the
provisions of that article. Its enactments have given rise to an
amount of litigation unprecedented in the history of our
Constitution. Not even the commerce clause of the Constitution,
or the contract clause, has proved as fertile of controversies as
the interpretation of this amendment, and laws enacted by
Congress, under the supposed authority of this amendment, have
more frequently been challenged successfully, and rights asserted
under it have been less frequently recognized, than under any
other provision of the Constitution.
The declaration contained in the amendment that citizens of
the United States shall be deemed citizens of the State wherein
they reside is merely a reiteration of the law as it existed
before the amendment and as it had been announced by Chief
Justice Marshall in Gassies v. Ballon (7) where it is said: "A
citizen of the United States, residing in any State of the Union,
is a citizen of that State." The declaration that all persons
born in the United States and subject to the jurisdiction thereof
are citizens of the United States was the announcement of a new
law of Federal citizenship, carrying with it a new law of State
citizenship and altering, as it was intended to alter, the rule
of citizenship established by the decision of the Supreme Court
in the case of Dred Scott v. Sandford. (8) To that extent the
amendment worked a radical change. (9)
The next clause requires a restatement of its provisions,
because nearly all the litigation which has arisen upon the XIV
Amendment has grown out of the prohibitions of this clause. The
language is: "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 the laws."
This language is plain enough. It cannot be tortured into
anything but a prohibition against the enactment by any State of
any law abridging the privileges or immunities of any citizen of
the United States, or depriving any person of life, liberty, or
property without due process of law, or denying Congress any
person within its jurisdiction the equal protection of the laws.
It relates to the States altogether. It does not require them to
enact any law. It simply forbids them from enacting the laws
described as obnoxious. It certainly does not confer upon the
Federal government any power to enact any kind of laws except
laws enforcing this prohibition against the States. It adds
nothing to and takes nothing away from the right of one citizen
against another, whether he be a citizen of the United States or
a citizen of the State. It forbids States from encroaching upon
existing rights, but, however it may have intended, it is equally
clear that it does not forbid individuals from encroaching upon
those rights, The power conferred upon Congress is to enforce, by
"appropriate legislation," the provisions of the article. The
provision of the article were directed solely against the States.
The power of Congress derived from the amendments must therefore
be confined to the power to legislate against the States to
enforce those provisions. (10)
The Supreme Court significantly pointed out this limited
power of Congress under the amendment when, in the Slaughter
House Cases, it declared that the protection given by the
amendment was "from the hostile legislation of the States." This
was in 1872. But Congress had already paused an act, called the
Enforcement Act in which it had undertaken to legislate against
individuals for conspiring or acting singly against citizens for
the purpose of abridging their privileges or immunities and
depriving them of life, liberty, or property, or, preventing
their enjoyment of the equal protection of the laws, under these
constitutional amendments. Certain acts violative of the rights
of citizens, as defined by the XIV and XV Amendments, committed
by individuals either singly or in conspiracy with others, were
declared to be in violation of Federal law, and penalties were
denounced against the perpetrators, and under these acts arrests
were made and prosecutions had.
Congress also passed an act known as the Civil Rights Bill,
by which it undertook to require innkeepers, carriers, and
keepers of places of public amusement not to discriminate against
any classes of citizens in the accommodations which they
supplied, and to give to citizens who were denied these equal
accommodations right of action and damages for such denial. The
defendants in all these cases, criminal and civil, challenged the
power of Congress to pass the laws under which they were indicted
or sued.
Two criminal cases, involving this defense, were decided by
the Supreme Court in 1875. One was the case of United States v.
Reese, arising under the clause of the Enforcement Act which
undertook to punish an individual for seeking to deprive a
citizen of his rights under the XV Amendment. (11) The other was
the case of United States v. Cruikshank (12) arising under the
clause of the Enforcement Act which undertook to punish an
individual for depriving a citizen of his rights under the XIV
Amendment.
In the case of Reese it was declared that the XV Amendment
conferred no right to vote; that it invested United States
citizens with the right of exemption from discrimination in the
exercise of suffrage on account of race, color, or previous
condition; that the power of Congress to legislate at all
concerning voting at State elections rested on the XV Amendment
and could be exercised only by providing punishment when the
wrongful refusal was because of race, color, or previous
condition. In the Cruikshank case the court said: "The equality
of the rights of citizens is a principle of republicanism. Every
republican government is in duty bound to protect all its
citizens in the enjoyment of this principle, if it is within its
power." But the court further proceeded to say that this duty
was originally assumed by the States, and it still remains there.
The only obligation resting upon the United States is to see that
the States do not deny the right. This the amendment guarantees,
but no more. The power of the national government is limited to
the enforcement of that guarantee. The court, however, found
technical difficulties in the indictment which enabled it to set
aside the conviction without going further. It was plain to see
that the Supreme Court doubted the power of Congress to enact
laws directed against individuals for violating the rights of
citizens guaranteed against State legislation by the XIV and XV
Amendments.
In the case of U.S. v. Harris, (13) the Supreme Court
declared the Enforcement Act void in the following language:
"When an Act of Congress is directed exclusively against the
action of private persons, without reference to the laws of the
State, or their administration by her officers, it is not
warranted by any clause in this amendment," and this language has
been reiterated by the court on many occasions. (14)
In the case In re Kemmler, (15) the Supreme Court said:
"The XIV Amendment did not radically change the whole theory of
the relations of the State and Federal government to each other
and of both governments to the people. ... Protection of life,
liberty, and property rests primarily with the States;" and the
opinion goes on to declare that the amendment guarantees only
that the State shall not encroach upon the fundamental rights of
her citizens or discriminate between them. And when in 1883 the
measure of Congress known as the Civil Rights Bill came up for
adjudication it was declared unconstitutional. (16) In that case
it was held that the XIV Amendment does not justify establishing
a code of municipal law regulative of all private rights between
man and man in society, or make Congress take the place of State
legislatures, and that the legislation which Congress was
authorized to adopt was not general legislation upon the rights
of citizens, but corrective legislation necessary to counteract
State legislation prohibited by the amendment. "Individual
invasion of individual rights is not the subject matter of the
amendment," was the language used. (17)
The last and one of the most emphatic expressions of the
Supreme Court against the power of Congress to enact a statute
punishing purely individual action, as an appropriate exercise of
power conferred by either the XIV or XV Amendments will be found
in a case decided in 1903. (18) In that case Bowman was indicted
under Section 5507 of the Revised Statutes, which was a part of
the same Act under which Reese and Cruikshank were indicted. The
Act attempted to punish by fine and imprisonment every person who
would prevent, hinder, control, or intimidate in the exercise of
the right of suffrage, by certain means described, any one to
whom that right is guaranteed by the XV Amendment. The court
held that the Act was beyond the power of Congress, and
discharged the prisoner on a writ of habeas corpus. It reviewed
the authorities above referred to, and declared that a Federal
statute which purported to punish purely individual action in the
particulars named was unconstitutional.
So that, at the present time, it may be truly said that the
statutes, both of criminal and of, civil nature, which the
Congress has attempted to enact, directed against individuals,
and purporting to punish them or subject them to damages for
violating the rights of citizens under the XIV and XV Amendments,
have been nullified by the decisions of the Supreme Court. But
while the power granted to the courts by the amendments has been
thus restricted by interpretation, the power to legislate against
State action has been sustained, and, in sundry instances, State
action has been nullified.
In the first group of cases, decided by the Supreme Court in
1879, the following decisions illustrate what the amendment did
effect. The law of West Virginia which singled out and denied to
colored citizens the right and privilege of participating in the
administration of the laws by serving on juries, because of their
color, was held to be void for the discrimination. (19) In
another case it appeared that the jury law of Virginia did not
forbid the summoning of negroes to act on the panel, and that if
there were none on the jury which tried the accused it was either
by chance or by the negligence or willful misconduct of a
subordinate officer. In that case it was held that this did not
constitute a denial by the State. (20)
In the third case which came up from Virginia, (21) where
the jury law was as stated above, the court refused to grant a
writ of habeas corpus in favor of a judge who had been indicted
for refusing to summon negroes on the jury. His release had been
demanded by the State. It is difficult to see how the ruling in
this case can be justified, for the Supreme Court had, at the
same term, said that the XIV Amendment was directed at State
action, and had declared in the Reese and Cruikshank cases, in
effect, that Federal legislation against individuals was not
contemplated or authorized by the XIV or XIV Amendments; and in
an opinion delivered on the same day it declared that if an
executive or a judicial officer in Virginia exercised unwarranted
power or did unauthorized acts, prejudicial to the rights of a
citizen of the United States, the remedy was by appeal. It had
allowed an appeal and had granted relief in a similar case in
West Virginia; and subsequently, in the case of U.S. v. Harris,
(22) in the Civil Rights Cases, (23) in Baldwin v. Frank, (24)
and in James v. Bowman, (25) it nullified the Enforcement Act and
the Civil Rights Bill on the ground that individual invasion of
individual rights was not the subject matter of the amendment.
It is impossible to reconcile the decision in Ex p. Virginia
with the others. Perhaps the court did not at that time
understand as fully as it came to understand later the real scope
of the amendments.
As they stand, the two cases of Virginia v. Rives and Ex p.
Virginia present an amusing line of judicial demarcation. In
Virginia v. Rives, the misconduct of a sheriff in the method of
summoning a jury was declared not to be the action of the State
and to be remediable on appeal. In the case of Ex p. Virginia,
decided the same day, the misconduct of a judge in not summoning
a proper jury was held to be the action of the State, remediable
by the indictment of the judge, although the State had done no
wrong. (26) The only legal principle to be deduced from the two
decisions is that the boundary between an officer who is the
State and an officer who is not the State lies somewhere between
a sheriff and a judge.
State action discriminating between citizens has been
frequently nullified by Federal decisions since. In most cases
the discrimination was in regard to the constitution of juries.
(27) These cases will be considered in discussing the decisions
under the clauses of the amendments to which they refer.
Having now discussed the general features of the first and
fifth sections of the XIV Amendment, we come to a consideration
of the decisions rendered upon it by the Supreme Court of the
United States during the forty years since its passage. Three
hundred cases, involving its construction, have been decided by
that court, scrutinizing it from nearly every point of view in
which it may possibly be considered, and we need cite no other
authority on the questions, because the decisions of the Supreme
Court are the supreme law of the land, anything in conflict with
them in inferior courts, Federal or State, to the contrary
notwithstanding. (28)
After laborious effort, it has been found impossible to
separate the decisions under the three headings -- cases in which
it was claimed that the rights and privileges of the complainant
were abridged; cases in which it was claimed that the
complainant had been deprived of life, liberty, or property
without due process of law; and cases in which it was claimed
that the citizen had been denied the equal protection of the law
-- for in almost every instance the right to the relief asked was
placed on all three grounds. Where the decision was adverse
relief was of course denied upon all three of the grounds
specified, but where relief was granted it was sometimes upon one
ground, sometimes upon two, sometimes upon all three, and in some
cases the court failed to specify upon which of the grounds the
decision rested.
The student interested in the further pursuit of this
inquiry may easily satisfy himself, for, surprising us it may be,
out of the three hundred cases decided, only about thirty
decisions have sustained the right or claim asserted under the
XIV Amendment. These favorable decisions relate to
discriminations against negroes in State laws or proceedings
relating to the constitution of juries; to discriminations
against Chinamen; to discriminating State laws concerning
taxation, assessment, rates, or regulation of corporations; to
discriminations in State procedure; and to a few particular
rights. (29) This is the pitiful array of results from forty
years of litigation upon amendments which, at the time of their
enactment, were claimed to revolutionize the relations of the
Nation and the States.
In the great mass of rejected claims will be found the full
interpretation placed by the court upon these amendments. A list
of authorities is hereto appended showing what has been claimed
under the clause which provides:
"No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United
States."
Out of all the eases decided by the Supreme Court in which
the abridgment of rights has been asserted, the claim has been
sustained in but a few cases and of the cases favorably decided
seven relate to the rights of negroes in the constitution of
juries. The rights established in other cases were. The right
of a lawyer to practice law; the right of a Chinaman to conduct
a laundry without discrimination; the right of railroads and
other corporations to equal protection against discriminating
State taxes or other requirements, and the right of a litigant to
have due notice of a suit. Yet the whole range of the rights of
citizens have been traversed to attain this result.
We have already had occasion to point out that, in the
earliest construction placed upon these amendments, it was
declared that their main purpose was to give definitions of
citizenship of the United States and of the States and to protect
the newly enfranchised race against discriminating legislation by
the States. At the risk of endless reiteration, we must again
recur to the language of the court in the Slaughter-House Cases,
declaring that the amendments did not bring within the power of
Congress the entire domain of civil rights theretofore belonging
exclusively to the States, or transfer the security and
protection of all civil rights from the States to the Federal
government. Their whole function was to bestow on Congress power
to protect United States citizens from hostile legislation by the
States.
With this as the keynote we come to a consideration of the
decisions above referred to. The States have been held to
possess very large powers of legislation, subject only to the
condition that they shall not abridge the privileges and
immunities of citizens of the United States or deprive any person
of life, liberty, or property without due process of law. The
basic principle on which all these decisions rest is that prior
to the amendments, the control of all these subjects resided in
the States; that the amendments do not justify establishing a
Federal code of municipal law regulative of all private rights
between man and man in society, or make Congress take the place
of State legislatures; that the legislation which Congress is
authorized to enact is not general legislation upon the rights of
citizens, but corrective legislation on the States, such
legislation as may be necessary to counteract State legislation
prohibited by the amendments; and that, subject to this
restriction, the power of the States to legislate on all these
subjects is as unqualified as it was before the amendments. (30)
All the opinions rendered deal with this general idea, and
we shall proceed to consider in detail the decisions under the
following heads:
1. Of the Regulation of Ordinary Business Pursuits by the
States
a. To establish slaughter-houses. (31)
The opinion delivered in the Slaughter-House Cases is
perhaps the most thorough and exhaustive discussion to be
found of the reserved police powers of the State in the
Union. Further citations from it are unnecessary in view of
what has preceded.
b. To control the regulation of laundries. (32)
In the cases of Barbier v. Connolley and Soon Hing v.
Crowley, cited below, it was declared that the XIV Amendment
did not impair the police powers; of the States and that
they might prohibit laundries within certain Limits between
certain hours; but, in the later case of Yick Wo v. Hopkins
8, this police power was limited by the requirements that,
such laws, and indeed any laws regulating the conduct of
business, should not by their terms or in their
administration discriminate between classes of people
engaged in the business. Yick Wo was a Chinaman in San
Francisco, and an ordinance of the city, either by its terms
or in its administration, discriminated against Chinese.
That was held to deny to a class the equal protection of the
law in violation of the amendment.
c. Regulation of liquor traffic. (33)
The cases relating to the control of liquor traffic by
the States are numerous. They are unanimous that the right
to traffic in intoxicating drinks is not a privilege or
immunity which the XIV Amendment forbids a State from
abridging unless the law so operates as to amount to a
deprivation of property without compensation or violates the
provisions against interstate commerce. In the License
Cases Mr. Justice Greer said: "Police power which is
exclusively in the States is alone competent to the
correction of these great evils," and in the case of Foster
v. Kansas it was said that the constitutional power of the
States to prohibit the manufacture and sale of intoxicating
liquors is no longer an open question. The States have the
power to regulate and even to prohibit the sale of liquors;
but a number of cases will be found, arising under the
interstate commerce law, which forbid the States from
interfering with liquor passing through or brought into a
State while it is in the condition of commercial transit.
d. To inspect food supplies. (34)
Inspection laws passed by the State to secure pure food
for its citizens are valid, but inspection laws which go
beyond this purpose and either discriminate between classes
or interfere with interstate commerce must yield to the
supremacy of the Federal law. The decisions on this
question are numerous, and each case which shall arise
hereafter must depend upon the phraseology and effect of the
law under consideration.
e. Authority to guard against the introduction of infected
cattle from other States. (35)
This has been sustained in a number of cases, as has
also a law which imposes damages upon owners for damage done
by cattle or other stock in the highways.
f. To prohibit business on Sunday. (36)
The right of the State to prohibit business on Sunday
has been upheld on the same ground of police powers.
g. For the same reason, to require licenses from venders.
(37)
h. The right to regulate the flow of oil wells and the
like. (38)
i. Also the right to forbid the unlawful combination of
citizens to injure others in their reputation, trade,
or business, or combinations known as trusts deemed
destructive of competition. (39)
j. To prescribe regulations concerning many other things.
(40)
2. The Right to Regulate Women's Rights.
One of the first claims decided was that of a woman, in
Bradwell v. State. (41) She sought to compel the State of
Illinois to admit her to the practice of law, but the court
promptly held that while she was a citizen it was within the
power of the State to determine whether she should be entitled to
practice. In the case of Miner v. Happersett (42) in the same
volume, a woman claimed the right of suffrage, but the courts
held that the right of suffrage was under the control of the
State.
3. The Right to Regulate the Practice of Professions. (43)
Laws requiring professional men to submit to examination to
procure licenses have been held not to invade any rights granted
to them by the Constitution; but in one case the conviction of a
lawyer refusing to pay a tax was held to be illegal and was set
aside, and he was discharged on habeas corpus, because the tax
demanded violated the contract clause of the Constitution by the
manner of its imposition.
4. Of Suffrage. (44)
In the first case which arose under the XIV Amendment
involving the right of suffrage, the Supreme Court was very
positive in its statement that the right of suffrage was derived
exclusively from the States; that it was not an incidental
privilege or immunity of Federal citizenship before the adoption
of the XIV Amendment; that the XIV Amendment did not add to the
privileges or immunities which it undertook to protect; that
suffrage was not even coextensive with State citizenship; that
neither the Constitution of the United States nor the XIV
Amendment made all citizens voters; and that a provision in the
State constitution limiting suffrage to male citizens did not
violate the Federal Constitution. In the next case in which
suffrage was considered it was declared that the XV Amendment
conferred no right to vote, and that it merely invested citizens
of the United States with the right of exemption from
discrimination against them (in the exercise of suffrage) by
reason of race, color, or previous condition; but that the power
of Congress to legislate at all concerning voting at State
elections rests on the XV Amendment, and can be exercised only by
providing punishment when the wrongful refusal is because of the
race or color of the voter.
In the case of U.S. v. Cruikshank (45) it was said,
referring to the two cases above: "The Constitution of the
United States has not conferred the right of suffrage upon any
one, and the United States have no voters of their own creation
in the States." In the later case of Ex p. Yarbrough, it was
said that there were cases in which the XV Amendment
substantially conferred the right to vote on the negro, as where
it was held, in the case of Neal v. Delaware (46) to annul the
word "white" in the State constitution.
In the case of Ex p. Yarbrough (47) it was contended that
"the right to vote for a member of Congress is not dependent upon
the Constitution and laws of the United States, but is governed
by the laws of each State respectively." The Supreme Court
denied that, and answered it as follows: "It is not correct to
say that the right to vote for a member of Congress does not
depend on the Constitution of the United States. The office, if
it be properly called an office, is created by that Constitution
and by that alone. It also declares how it shall be filled,
namely, by election. Its language is: "The House of
Representatives shall be composed of members chosen every second
year by the people of the several States, and the electors in
each State shall have the qualifications requisite for electors
of the most numerous branch of the State legislature." (Art. 1,
Sec. 2.) The States, in prescribing the qualifications of voters
for the most numerous branch of their own legislatures, do not do
this with reference to the election for members of Congress, nor
can they prescribe the qualification for voters for those eo
nomine."
In the case of McPherson v. Blacker, (48) it was said that
the right of a citizen of the United States, from the time of his
majority, to vote for presidential electors, is a right secured
to him by Article II of the Constitution and is unaffected by the
XIV and XV Amendments. So that, whatever may be said concerning
the sources from which the right of suffrage is derived, it is
certain that the right to vote for members of the House of
Representatives and for presidential electors is derived from the
Constitution of the United States itself and not from the States.
The framers of the Constitution saw fit to ascertain the
Federal electorate by reference to a State rule of selection, but
that does not make the right originate with the State any more
than the measuring of cloth with a yardstick makes the cloth the
product of a machine shop instead of a woolen factory.
In two recent cases, Wiley v. Sinkler (49) and Swafford v.
Templeton (50), instituted in federal courts for alleged
interference with the rights of the plaintiffs to vote at an
election for members of the House of Representatives, the
jurisdiction of the federal courts has been sustained, and the
right of the citizens to vote for a member of the House of
Representatives has been declared to have its origin in federal
law; but the Supreme Court has steadily refused to entertain
jurisdiction of questions of suffrage relating to State
elections, where it was not pointed out that the law
discriminated against a citizen on account of his race, color, or
previous condition.
In the case of Gibson v. Mississippi, (51) it was declared
that States are empowered to qualify the right of suffrage by
conditions confining it to males, to freeholders, to citizens, to
persons within certain ages, or to those having educational
qualifications; the only limitation upon the power of the
States, being that the laws shall not in form or in
administration discriminate between voters on account of race,
color, or condition.
In Williams v. Mississippi(52) the court declared that
provisions of a State constitution prescribing suffrage which
were in themselves unobjectionable, and concerning the
administration of which no specific wrong was alleged, would not
be declared null merely because there was a possibility that in
their administration wrong might be committed under them.
In the case of Pope v. Williams, (53) very recently decided,
a State law requiring voters to give twelve mouths' notice of an
intention to claim citizenship was held not to be violative of
the amendment; and even in the case of Wiley v. Sinkler, where
the right asserted was held to be a Federal right, the court
decided that in order to make a case of prima facie invasion of
his right, the plaintiff must show not only that he was entitled
to vote, but that he had complied with the State registration
laws which prescribe the conditions precedent to the exercise of
that right.
In sundry other cases recently decided, the effort has been
made to induce the Supreme Court to consider the claims and to
redress the wrongs of persons who alleged that they had been
unlawfully deprived of suffrage; but the court hat; refused to
entertain jurisdiction, declaring that the questions rained are
political and call for redress which can be given only by the
legislative and executive departments of the government.
In the recent case of Giles v. Harris, (54) it was said:
"The traditional limits of proceedings in equity have not
embraced a remedy for political wrongs." And again: "In
determining whether a court of equity can take jurisdiction, one
of the first questions is what it can do to enforce any order
that it may make. This is alleged to be the conspiracy of a
State, although the State is not and could not be made a party to
the bill. The Circuit Court has no constitutional power to
control its action by any direct means; and if we leave the
State out of consideration, the court has as little practical
power to deal with the people of the State in a body. The bill
imports that the great mass of the white population intends to
keep the blacks from voting. To meet such an intent something
more than ordering the plaintiffs name to be inscribed upon the
lists of 1902 will be needed. ... Unless we are prepared to
supervise the voting in that State by officers of the court, it
seems to us that all that the plaintiff could get from equity
would be an empty form. Apart from damages to the individual,
relief from a great political wrong, if done, as alleged, by the
people of a State and the State itself, must be given by them or
by the legislative and political department of the government of
the United States."
While this has been the attitude of the Supreme Court upon
suffrage questions, sundry States have been legislating upon the
subject in such a way, that, on one pretext or another, large
bodies of citizens who had exercised the right of suffrage
uninterruptedly for many years under pledges given to Congress by
the States, when they were restored to their relations in the
Union, that their suffrage never would be curtailed, have been
deprived of their right to vote. Despairing of obtaining any
relief from the Federal judiciary, the attempt has been made to
transfer the controversy to the House of Representatives. In
the 58th Congress (1903-1905) contests were made up from the
State of South Carolina in the House of Representatives, which,
by the terms of the Constitution, is made the sole judge of the
elections, returns, and qualifications of its members. (Article
1, Section 5, Clause 1.) The issue thus presented challenged the
right of any of the sitting representatives of South Carolina to
hold their seats because of alleged violations of the
Constitution of the United States in the State constitution and
the laws regulating suffrage under which they were elected. The
issues were squarely presented and called for a decision by the
House; but the committee on elections made a report in which it
stated that the cases involved grave constitutional questions,
which, if decided in favor of the claimants, would go to the very
foundation of the State government of South Carolina and would
perhaps affect not only her representation, but that of the other
States; that the House should hesitate about taking a step which
might be so far-reaching in its consequences, until the legal
questions involved were decided by the courts intrusted with the
duty of constitutional interpretation, and that the courts might
more safely be relied upon for correct decision than a transitory
and ever changing unprofessional body like the House of
Representatives. And so the matter of suffrage rests; the
courts declining to pass upon it as a political question, and
Congress insisting that it is a judicial question. Meanwhile a
great body of citizens whose very political being depends upon a
decision are left without any tribunal to decide their rights.
The historian of our times may be at a loss to understand
how a nation so powerful for self-preservation, and so insistent
upon the establishment of negro suffrage, afterwards became so
weak and indifferent to providing means for its enforcement.
It will be plain to, him, if he recalls the facts that the
bestowal of suffrage upon a great mass of ignorant people was,
when it was done, the product of war passions rather than of
reason, and that afterwards those war passions which gave rise to
it subsided, but race prejudices survived and have brought the
whites in the lately antagonistic sections of our country
together against an alien race. Under the influence of those
racial affinities, the whites of the triumphant section have
resolved not to oppose their former antagonists, but brethren in
race, in the effort to preserve white supremacy in all parts of
the Union; and have even come to look upon the bestowal of
suffrage upon the negro as a great mistake.
Negro suffrage has been pronounced a failure by men high in
the trust and confidence of the Political party which bestowed
it; so pronounced, because it is evident to any student of our
conditions that the negro is incapable of maintaining his right
and has no considerable body of disinterested white friends to
champion his cause.
This brings us, as related to the question of suffrage, to
consideration of the second section of the XIV Amendment, which
deals, with the reduction of representation of the States in
Congress, under certain circumstances.
Reduction of the Representation of the States in Congress
Under the Constitution of the United States, as it was
adopted and remained in force for seventy-nine years (Article 1,
Section 2, Clause 3), representation in Congress was apportioned
among the several States according to their numbers, determined
by adding to the whole number of free persons, including those
bound to service for a term of years, and excluding Indians not
taxed, three-fifths of all other persons. The words "all other
persons" meant slaves. The framers of the Constitution had an
aversion to using the term slave or slavery in the instrument.
The representation which the States should have, respectively, in
Congress, led to long and trying discussions in the convention
which framed the Constitution. The basis finally adopted was a
compromise which gave the slave States representation for
three-fifths of their slave population. But the people of the
free States never acquiesced in the justice of this basis, and it
was a constant source of jealousy and friction between the
sections.
While the XIII Amendment abolished slavery, it conferred no
citizenship on anybody and effected no change in the basis of
representation. The XIV Amendment was the work of the triumphant
free States and was arranged to suit themselves . The slave
States were virtually excluded from any voice in the discussion
of the new basis of representation. Many idiots were advanced
for the new basis. One proposition was to determine
representation by the number of votes actually cast at general
elections; another, that representation should be based on the
number of males of voting age in each State. Finally the new
basis adopted the words of the old Constitution, omitting all
references to taxes, or persons bound in service, and excluding
from the computation of numbers only Indians not taxed. This was
followed by a proviso authorizing Congress to reduce the
representation from any State if it should deny to any of its
male inhabitants, twenty-one years of age and citizens of the
United States, the right to vote at certain elections, or in any
way abridge the same, except for participation in rebellion or
other crime. The elections referred to were:
(1) elections of electors of President and Vice President
of the United States or representatives in Congress;
(2) elections of the executive and judicial officers of a
State or members of the legislature.
The reduction was to be effected by ascertaining the number of
such male citizens so deprived or abridged of suffrage in the
elections named, and reducing the congressional representation of
the State in the proportion which the number of males deprived of
suffrage might bear to the whole number of male citizens
twenty-one years of age in such State. The fifth section of the
amendment empowered Congress to enforce these provisions by
appropriate legislation.
Let us examine critically the circumstances under which this
power to reduce the representation of a State arises.
First, What denial or abridgment of suffrage by the State
calls the power into play?
Second, Whether the denial or abridgment of the suffrage of
a class must be for any particular cause.
Concerning the first: The denial or abridgment which
justifies congressional action is not confined to Federal
elections. Congress may act for the denial or abridgment of the
right of a citizen to vote in a State election for the executive
and judicial officers of the State or for members of the
legislature. But its power arises only when the right of
suffrage of a male citizen is denied or abridged. The power of a
State to deny suffrage to the female sex is untouched by the
Constitution of the United States. So also is the power of the
State to prescribe the electorate in all State elections except
for the executive or judicial officers of a State or members of
the legislature.
Concerning the second inquiry, it will be observed that
whereas representation of the States is primarily determined by
the whole number of persons in each State, the reduction of the
representation (if the State can only be made for her denial or
abridgment of the right of suffrage to male citizen of the United
States twenty-one years of age, and then in the proportion which
the number of such male citizens shall bear to the whole number
of male citizens twenty-one years of age in such State. It will
also be observed that the XIV Amendment left the States at
liberty to deny or abridge this right for any cause. That right
to deny or abridge the right of suff rage is still unrestrained
except by the XV Amendment. It forbids the United States or any
State to deny or abridge it on account of race, color, or
previous condition of servitude, but it does not go further. (55)
It is therefore manifest that but for the XV Amendment, the
States would have the absolute power to fix the qualifications of
voters and to limit and restrict the right to vote, as their
several interests might seem to demand, and that the States still
have that power except that they cannot deny or abridge the right
of citizens of the United States to vote, on account of their
race, color, or previous condition of servitude.
Neither the XIV Amendment nor the XV Amendment forbids
reasonable educational and property or other restrictions upon
suffrage. (56) If a State constitution should provide that no
one in the State shall enjoy the privilege of the ballot unless
he is able to read and translate Hebrew and Sanskrit or to
calculate eclipses of the heavenly bodies, what is there in the
Federal Constitution or amendments to declare such legislation
invalid? It was with the full knowledge of these facts that
Congress demanded of the States then lately in rebellion that
before resuming their relations to the Union they should adopt
constitutions with clauses in them providing for universal
manhood suffrage, and should agree that these features be
irrepealable. The States did accept such constitutions and did
give such pledges. It remains to be tested how far they were
obligatory upon them. Many wise and learned lawyers are of
opinion that those acts of Congress and the acceptance of the
States based upon them were unconstitutional because, under our
federal plan of government, it is contemplated that the States
shall be equal in authority and sovereignty. (57)
It is, argued that there can be and should be no distinction
between the States in their power to regulate their own affairs;
that no State can voluntarily surrender any portion of the power
reserved to it by the Constitution; and that Congress in
demanding from the States these "fundamental conditions" of
reconstruction, as they were called, created an unconstitutional
discrimination in favor of the domestic sovereignty of the
States; which gave the pledge, making it different from that of
the States which gave no such pledge, thus tending to destroy
that equilibrium of State sovereignty and independence which is
demanded by considerations affecting the common welfare and is
necessary to the permanency of the Union as well as to the
integrity of the States composing it.
It is contended also that the right to vote is neither a
natural right, nor one secured by the Federal Constitution except
as provided in the XV Amendment; that it is purely a political
privilege conferred upon certain members of the body politic for
the benefit and welfare of all. That is true. But the entire
frame of this government is predicated upon the idea that this is
a government of the people, by the people, and for the people;
and that the people have a right to choose their own
representatives and to make and administer the laws. By the word
"people " is always meant the intelligent mass of the community.
The theory of those who framed and induced the adoption of
the XIV and XV Amendments was that it behooved the Federal
government, not arbitrarily to establish, but to encourage,
universal manhood suffrage; that it is its duty to prevent the
denial of suffrage on account of the race, color, or previous
condition of the citizen, but that beyond this it could not
control State action on the subject; that it is the unmistakably
correct policy of republican institutions to confer the ballot,
as far as it may be safely done, upon all who are relied upon to
bear the burdens and fight the battles of the government. Civil
and political privileges are practically one. The rights of
citizenship and of property are of little value and of small
consequence in the absence of the right of the ballot to shield
and protect them. No people or race of people can be said in any
proper sense to enjoy the boon of freedom, if they are denied the
power of participating in the making and administering of the
laws. The right of suffrage under proper conditions is a
stimulant to patriotism, an encouragement to civic pride, and an
inspiration to improvement, and makes the citizen a better
citizen by the sense of being part of his government and by
imposing on him responsibility for the wisdom of that government
and the success of its administration. (58)
Congress doubtless reserved to itself the power to reduce
representation under the conviction that while it might not have
power to prevent States from denying or abridging suffrage in all
respects, it should have power to reduce their representation in
Congress if for any cause States should abridge their own
electorates so as to make the voting class cease to be
representative of popular sovereignty. It has been said that
this is the only agency at the command of Congress by which to
make good to the States the constitutional guaranty of republican
government in spirit as well as in form. If for instance, the
millionaires of a State should succeed in confining suffrage to a
few very wealthy men, it would be, in effect, the substitution of
a moneyed aristocracy for free democracy in that State. Under
the XIV Amendment Congress would have power in such case to
reduce the representation of that State in proportion to the
disfranchisement. The denial or abridgment in that instance
would have nothing to do with race, color, or previous condition,
yet the power to deal with it, conferred by the XIV Amendment, is
apparent, and may become of vital importance as the only
available way of practically enforcing the Federal guarantee of a
republican form of government for the States.
The argument has been made that the power granted to
Congress by the XIV Amendment to reduce representation for
disfranchisement was repealed by the adoption of the XV
Amendment. The fallacy of this contention is apparent at a
glance. The XV Amendment prohibits the States from denying or
abridging the right of suffrage for a single cause, viz., race,
color, or previous condition. The XIV Amendment authorizes the
reduction of representation if the right of suff rage is denied
or abridged for any cause. If a State should abridge the right
to an arbitrary or unreasonable extent, by imposing educational,
or property, or so-called "intelligence" qualifications, or by
any more unreasonable methods, Congress would have the power to
examine into its action and to judge whether such practical
denial or abridgment of suff rage subjected that State to
liability to have its representation reduced. The denial or
abridgment on account of race, color, or previous condition would
be a nullity because it is made unconstitutional by the XV
Amendment. That would perhaps prevent Congress from reducing
representation by reason of such a law, because, being
inoperative, it could neither deny nor abridge the right of any
class. Doubtless it was a solicitude for the protection of the
colored citizen that inspired the XIV Amendment, but it is
written in general terms and applies to all classes of people,
and notwithstanding the XV Amendment it stands unrepealed.
Minnesota can no more disfranchise a considerable portion of her
white citizens without reference to race or color, and escape the
risk of having her representation reduced therefor, than can
Mississippi disfranchise her black citizens. The XIV Amendment
is as operative to-day as it was the day of its enactment. An
educational or a property qualification imposed by any State of
this Union to the extent of reducing popular representation, and
to the destruction of real popular representative government, is
as plain an abridgment of the right of suffrage, contrary to the
spirit of the XIV Amendment, as an abridgment on account of race,
color, or condition. One of these restrictions is as capable of
abuse with sinister motives as the other, and it is within the
plain power of Congress to consider and deal with both.
So much for the letter and the spirit of the law of federal
representation in Congress. As a practical question it is not
probable that Congress will ever enact a law to enforce the
provisions of the second section of the XIV Amendment by
"appropriate legislation," or that it will ever attempt to reduce
the representation of any State because it has denied or abridged
the right of citizens of the United States to vote at any of the
elections named in the amendment. The reasons for this opinion
are brief. In the first place, the overwhelming majority of
representatives in Congress are white men. The racial sympathy
existing between white representatives of States where the blacks
are few, and the white representatives of the States which
disfranchise them, is stronger than any political theories. The
statutes of the States where the blacks are disfranchised do not
openly aver the real purposes of the acts. They are ostensibly
based upon sundry other disqualifications, educational, ownership
of property, registration, residence, etc. If the legislation is
assailed, those who frame it admit its real purpose, in private,
and justify it by specious appeals to racial sympathies and
exaggerated pictures of the dangers to white supremacy in their
section unless the course adopted be followed. So industriously
is this system of persuasion and appeal to racial sympathy
pursued, that even political antagonists are soon converted too
this idea of "doing evil that good may come of it," and join in
the effort to demonstrate that the discriminations are not
racial. Once off that dangerous ground, new elements of sympathy
are enlisted, for, throughout the North and West, educational and
property qualifications are: deemed justifiable Limitations upon
suffrage, and it would be impossible to secure, by the votes of
representatives; from those sections, any Act of Congress
reducing the representation of any State for other than race
discrimination.
Congress is changing body, and while its members from some
sections, as a rule, remain but a short time, a representative
from the South, under the system prevailing, once elected is apt
to stay for a long time; and as he becomes familiar with
congressional methods he becomes more and more master of the
Machiavellian logic of his peculiar school, and past master of
the trading politics which have always characterized the dealings
with each other of representatives from the different sections in
Congress. He knows that he will be called upon to make many
concessions to the representatives of other sections upon
commercial legislation, and on questions affecting their local
interests. In return he has, as a rule, but one concession to
demand from them, and that is both in accord with their own
prejudices and in the line of interests against congressional
interference with their own States. It is the privilege of being
left alone in the management of his State affairs.
The power granted by the amendment against the States is too
broad to be comfortable to those called on to enforce it. It can
never be exercised save by the vote of a majority of
representatives from the States to be affected. It is not likely
that any party will ever possess a majority sufficient to enforce
these provisions against any State, for there will ever be a
margin of timid representatives who will fear the effect on their
own fortunes at home if they should recognize a principle which
may be dangerously turned against their own constituents. The
bargain is easy; the result, nonaction by Congress. And so far
as any practical results are to be expected from the exercise of
this power of Congress to reduce representation, it is as
unlikely that Congress will act as that it will some day declare
this government to be an absolute monarchy.
5. The Right of States to Regulate State Procedure, Especially
Concerning the Summoning and Constitution of Juries. (59)
Many cases have arisen in which the trial of citizens by the
State according to State procedure has been questioned as an
infringement of a right secured by the XIV Amendment The only
cases in which these claims have been sustained are those in
which there was a discrimination on account of race, color, or
previous condition.
The right of a citizen of the United States to trial by jury
in a federal court is absolute in all trials for crimes except in
cases of impeachment (Constitution, Article 111, Section 1,
Clause 3, and Amendment VII), and in suits at common law where
the value in controversy does not exceed twenty dollars
(Amendment VII). But even concerning this right it has been held
that in contempt proceedings the party in contempt is not
entitled to a trial by jury within the meaning of the provisions
of the Constitution. (60)
While, as a rule, the several States guarantee to their
citizens trials by jury, it has been held that trial by jury in
the State courts for offenses against the State is not a
privilege or immunity of national citizenship which the XIV
Amendment forbids the States to abridge. (61)
In the case of Louisville, etc., R. Co. v. Kentucky, (62)
the Supreme Court said: "For the Federal courts to interfere
with the legislative department of the State government, when
acting within the scope of its admitted powers, is always the
exercise of a delicate power, one that should not be resorted to
unless the reason for doing so is clear and unmistakable."
The same language is equally applicable to an interference
with the judiciary department of a State government.
In the case of McPherson v. Blacker (63) the Supreme Court
again said that the XIV Amendment did not "radically change the
whole theory of the relations of the State and Federal
governments to each other, and of both governments to the
people."
In the case of Williams v. Mississippi, (64) the Supreme
Courts said: "The conduct of a criminal trial in a State court
cannot be reviewed by the Supreme Court of the United States ,
unless the trial is had under some statute repugnant to the
Constitution of the United States, or was so conducted as to
deprive the accused of home right or immunity secured to him by
that instrument."
In the case of In re Converse, (65) it is said: "The XIV
Amendment ... was not designed to interfere with the power of the
State to protect the lives, liberty, and property of its
citizens; nor with the exercise of that power in the
adjudications of the courts of a State in administering the
process provided by the law of the State."
And while the court has repeatedly declared that in
determining the qualifications of State jurors the States must
take care that no discrimination in respect to such service be
made against any class of citizens solely because of their race,
it also held in the case of In re Shibuya Jugiro (66) that no
person charged with a crime involving life and liberty is
entitled, by virtue of the Constitution of the United States, to
have his race represented upon the grand jury that may indict
him, or upon the petit jury that may try him, and that it rests
with each state to prescribe such qualifications as it deems
proper for jurymen, subject only to the limitation against race
discrimination above referred to.
In the case of Ex p. Reggel (67) it was declared that the
State may regulate State procedure.
In the case of Gibson v. Mississippi (68) it was decided
that the States may impose for jury service conditions confining
jurors to males, to freeholders, to citizens, to persons within
certain ages, or too persons having educational qualifications,
and that the claim to a mixed jury is not a matter of right;
that it is a denial, because of color, of rights accorded to
whites, that constitutes the forbidden discrimination.
In the case of Maxwell v. Dow, (69) the complainant averred
that be was deprived of his privileges and immunities by a trial
in the State court by a jury of eight persons. The decision was
adverse to his claim on the ground that the right of trial by a
jury of twelve was a guarantee of the Federal Constitution
concerning federal trials, and the State had a right to prescribe
a trial by eight jurors if that was the ordinary course of legal
procedure.
Some amusing claims have been made under the supposed
protection of this guarantee, as for example, in the case of
McDonald v. Massachusetts (70) where the power of the State to
impose additional punishment upon habitual criminals was
questioned; but the contention was rejected and the States were
held to have the power to impose such additional punishment. In
the case of In re Kemmler, (71) one who had been condemned to
death in a State proceeding in New York, and sentenced to
electrocution, questioned the power of the State to impose such a
sentence. The privilege which he appears to have asserted was
the privilege of being hanged instead of being electrocuted; but
the decision was adverse, for the State was declared to possess
complete control of the subject, and his right, if such a
fanciful claim may be so called, was held not to be within
Federal protection.
It has been repeatedly held that where the proceedings in a
State court are according to the regular forms of State procedure
and not based on laws which create the forbidden discrimination,
the federal court has no jurisdiction to inquire or decide
whether erroneous rulings were made in the trial or to review the
trial as upon an appeal on the merits, and that the function of
the federal tribunal is confined to the inquiry whether the law
involved, in terms, or in its administration, makes a
discrimination against the accused on account of race, color, or
condition.
As was said in the case of Kennard v. Louisiana, (72) the
real inquiry concerning the legality of the procedure in a State
court is whether the trial was had in the State court "in due
course of legal proceedings, according to those rules and forms
which have been established for the protection of private rights
"and it was added, "irregularities and mere errors in the
proceedings can only be corrected in the State courts." And in
the later case of Presser v. Illinois (73) it was said that the
State may pass any laws in regulating the privileges and
immunities of its citizens if they do not abridge their
privileges and immunities; as citizens of the United States.
Varying the number of challenges of veniremen in proceedings in
the State court in different parts of a State is not a denial of
the equal Protection of the law. (74)
The power of the State to deal with crime within its borders
is not limited by the XIV Amendment save that no State can
deprive parts or classes of its people of equal and impartial
justice. (75)
In the case of Iowa Cent. R. Co. v. Iowa (76) it is said
that it is not "a right, privilege, or immunity of a citizen of
the United States to have a controversy in the State court
prosecuted or determined by one form of action instead of by
another."
The case of Andrews v. Andrews (77) contains an important
and instructive discussion of the power of the States to
prescribe and control State procedure in questions of marriage
and divorce.
Actual discriminations by officers charged with the
administration of State statutes unobjectionable in themselves,
against the rights of a negro on trial, by purposely excluding
negroes from the jury will not be presumed but must be proved,
and in order to sustain a motion to quash an indictment because
negroes were excluded from the grand jury a defendant must prove
the fact or offer to prove it. (78)
Supplementing the above outlines of the decisions upon the
question what State procedure is within the power of the States
to regulate, the reader will find a full collection of the
authorities in Appendix B at the end of this book.
An interesting discussion of the reserved powers of the
States will be found in the dissenting opinion of Mr. Justice
White, in the famous merger decision." (79)
6. Of the Power of the State to Control and Regulate the
Business of Corporations in the State. (80)
Numerous decisions are to the effect that corporations are
within the meaning of the XIV Amendment. (81) But the fact that
they are within the meaning of the amendment does not give
foreign insurance companies any more rights as against the State
than they had before its enactment. The State may still regulate
the term upon which they may be admitted to do business in the
State. (82) It may enact penalties for their negligence. (83)
The State may regulate grade crossings of railroads. (84) It may
also pass laws establishing a rule of damages in the case of
injuries to employees under what is known as the "fellow-servant
law." (85) It has also been held that the States may classify
the subjects of legislation and make different regulations as to
the property of different individuals differently situated. The
provisions of the Federal Constitution are satisfied if all
persons similarly situated are treated alike in the privileges
conferred and the liabilities imposed. (86)
7. The Right to Control the Conduct of Individuals and Bodies
of Citizens in Public Places.
The XIV Amendment did not destroy the power of the States to
enact police regulations concerning the subjects within their
control." In Presser v. Illinois, (88) it was declared that the
State may pass laws regulating the privileges and immunities of
its own citizens if they do not abridge their privileges and
immunities as citizens of the United States. And in Davis v.
Massachusetts (89) a municipal ordinance making it necessary to
procure a permit from the mayor to entitle a person to make a
public address upon any public grounds of the city was held to be
valid, as a mere exercise of the administrative authority within
the police power of the State.
Numerous cases cited in note 6, p. 214, supra, sufficiently
sustain this power, especially the case of Wilson v. Eureka City.
(90)
8. To Require Citizens to Observe Morality and Decency.
The claims to immunity asserted against this power are in
many instances ludicrous. For example, a negro citizen of
Alabama who was prosecuted for living openly in improper
relations with a white woman pleaded the immunity of the XIV
Amendment. The reply was that nothing in the amendment warranted
any such violation of decency. (91) So also the right to live in
a state of polygamy was asserted as a religious tenet of the
accused. The right was denied on the ground that crime could not
be covered up by pleading that it was committed as a part of the
religious faith of the defendant. (92) And the law of Illinois
forbidding gambling in options was likewise held to be within the
power of the State. (93)
9. Of the Power of the State to Separate the Races in Public
Places.
This question has given rise to a series of most interesting
decisions. The first case in the Supreme Court was that of the
Louisville, etc., R. Co. v. Mississippi. (94) The State law of
Mississippi provided for the separation of blacks and whites in
public conveyances. The Supreme Court of Mississippi decided
that the law did not apply to interstate commerce, and the
Supreme Court of the United States, adopting that construction of
the law, held that it was competent to the State in the exercise
of its police powers to separate the races, and declared that it
was no discrimination on account of race, or badge of servitude
put upon either race, to require that they should be separated.
In the later case of Plessy v. Ferguson (95) this idea was
expressed as follows: "The object of the amendment was
undoubtedly to enforce the absolute equality of the two races
before the law, but in the nature of things it could not have
been intended to abolish distinctions based upon color."
The question likewise came up in regard to the separation of
the races in public schools, in the case of Cumming v. Board of
Education, (96) where it was said: "Interference on the part of
Federal authority with the management of such schools cannot be
justified except in the case of a clear and unmistakable
disregard of rights secured. ... The education of the people in
schools maintained by State taxation is a matter belonging to the
respective States."
10. Of the Power of the State to Regulate State Taxation. (97)
Many questions have arisen upon this power of State
taxation, and in nearly every case the particular State law
involved was assailed on the triple ground that it abridged
privileges and immunities, that it deprived of due process of
law, and that it deprived of the equal protection of the laws. A
study of the cases will be necessary to an understanding of all
tine points decided. The following are some of the general
principles settled:
A State law off taxation which discriminates between the
complainant and others of the same class is invalid. A State law
of taxation which taxes an individual at a rate different from
those in his class, in effect denies him the equal protection of
the laws. It was not the purpose or function of the amendment to
change the system or policy of the State in regard to the
devolution of estates or to limit the extent of the taxing power
of the State in cases of the devolution of estates. States have
a right to classify the subjects of taxation when the property of
different individuals is differently situated, and if all persons
similarly situated are treated alike in the liabilities imposed
the State does not violate the amendment.
The State may pass special legislation of special character
applicable to and imposing taxes on certain districts only, for
particular improvements there, such as draining marshes and
irrigating arid plains, supplying water for preventing fires,
lighting particular districts, cleaning particular streets,
opening parks, arid for many other objects; and regulations for
these purposes may press with more or less weight upon one than
upon another citizen; but in their designate they are not to
impose unequal and unnecessary restrictions upon any one, and
though necessarily special in their character, they furnish no
ground of complaint if they operate alike upon all persons and
property under the same circumstances and conditions. (98)
Class legislation, discriminating against some and favoring
others, is prohibited by the amendment, but legislation which, in
carrying out a public purpose, is limited in its applications if
within the sphere of its operation it affects alike all persons
similarly situated, is not within the amendment. (99) So, too,
in the case of a nonresident whose lands were subjected to a
local assessment for the common benefit of the locality, the same
assessment being levied against resident property-holders in the
same vicinity, it was held that the law levying the assessment
was not a discriminating tax. And a paving ordinance making an
assessment on people in a particular neighborhood for the benefit
of their common property was held not to violate any privilege or
immunity of the citizen because it applied to all similarly
situated.
11. Of the Right of the State to Control State Elections.
This subject was fully discussed in the celebrated case of
Taylor v. Beckhamn, (100) and has already been referred to, and
it is sufficient to say concerning it that federal courts have
repudiated any jurisdiction to consider the conduct of the
results of State elections unless in some controversy wherein the
law under which they were held, or the manner in which they were
conducted, discriminated against the complainant by reason of his
race.
Due Process of Law
Amendment V to the Constitution provides that the Federal
government shall not deprive any citizen of life, liberty, or
property without due process of law. Although that proviso
remained in the Constitution until the adoption of the XIV
Amendment, the only case in which the meaning of these words was
construed in the eighty years that it stood alone is the case of
Murray v. Hoboken Land, etc., Co (101) The XIV Amendment merely
made that same rule obligatory upon the States. Within the forty
years since the adoption of the amendment, there has never been a
time when the Supreme Court docket was not crowded with cases in
which it was claimed that State legislation had deprived the
complainant of life, liberty, or property without due process of
law. A glance at the formidable array of cases in which the
Supreme Court has passed upon this question gives but a faint
idea of the amount of litigation to which it has given rise. In
one of the earliest cases, Davidson v. New Orleans, (102) Mr.
Justice Miller, perhaps the ablest judge on the Supreme Court
bench since the adoption of the XIV Amendment, rendered an
opinion in which he gave the origin and history of this provision
of the Constitution as found in Magna Carte and in the V and XIV
Amendments of the Constitution of the United States. In that
opinion he also said: "But apart from the imminent risk of a
failure to give any definition which would be at once
perspicuous, comprehensive, and satisfactory, there is wisdom, we
think, in the ascertaining of the intent and application of such
an important phrase in the Federal Constitution, by the gradual
process of judicial inclusion and exclusion, as the cases
presented for decision shall require." And in a very recent
case, (103) Mr. Justice McKenna, delivering the opinion of the
court, reverted to this expression of Mr. Justice Miller and said
that the court was still pursuing the process of inclusion and
exclusion as the cases were presented for decision, but was still
unprepared to formulate a definition.
In delivering the opinion in Davidson v. New Orleans, (104)
Mr. Justice Miller also used the following emphatic language:
"It is not a little remarkable, that while this provision has
been in the Constitution of the United States, as a restraint
upon the authority of the Federal government, for nearly a
century, and while, during all that time, the manner in which the
powers of that government have been exercised has been watched
with jealousy, aud subjected to the most rigid criticism in all
its branches, this special limitation upon its powers has rarely
been invoked in the judicial forum or the more enlarged theatre
of public discussion; but while it has been a part of the
Constitution, as a restraint upon the power of the States, only a
very few years, the docket of this court is crowded with cases in
which we are asked to hold that State courts and State
legislatures have deprived their own citizens of life, liberty,
or property without due process of law. There is here abundant
evidence that there exists some strange misconception of the
scope of this provision as found in the XIV Amendment. In fact,
it would seem, from the character of many of the cases before us,
and the arguments made in them, that the clause under
consideration is looked upon as a means of bringing to the test
of the decision of this court the abstract opinions, of every
unsuccessful Litigant in a State court of the justice of the
decision against him, and of the merits of the legislation on
which such a decision may be founded."
The honored judge who uttered these words has been in his
grave for many years, but the cases involving the abstract
opinions of unsuccessful litigants in State courts have continued
to multiply. The decisions rendered by this court are so nearly
unanimous in rejecting the claims made, that they might well be
described as decisions upon what the XIV Amendment does not mean,
rather than adjudications of rights arising under it.
The earliest interpretation of the meaning of this clause
was in the case of Kennard v. Louisiana (105) where it was said
that due process of law meant the trial of a case in due course
of legal proceedings, in a State court, according to those rules
and forms which have been established for the protection of
private rights. In Caldwell v. Texas (106) it was said that due
process of law is secured when the laws operate on all alike, and
no one is subjected to a partial or arbitrary exercise of the
powers of government. In the hundreds of cases since decided the
opinions delivered merely ring the changes in the particular case
upon this general principle.
A volume, interesting and instructive, might unquestionably
be written upon the cases decided, but it is doubtful if any new
principles would be found in them. Moreover, as each new case
arises, those intrusted with its conduct will be forced to an
examination of the decisions in detail in order to discover in
what respects their case is similar to the others that have gone
before, and how far the decisions already rendered or passed upon
by the State affect the case submitted to them. For these
reasons, and for the further reason that this subject of due
process of law is to be treated in a separate volume, we shall
not discuss it further. (107)
Of the Equal Protection of the Law
Nearly all the cases above cited with reference to the
abridgment of privileges and immunities by due process of law
deal with the question of what is and what is not equal
protection of the law, and a full discussion in place of the
decisions in all those cases would not only involve infinite
repetition, but would occupy a space that cannot be spared to it.
It has been decided that the exclusion of colored citizens
by law from juries summoned to try persons of their race is a
denial of the equal protection of the law. The authorities on
this point are the same as those cited in connection with the
abridgment of privileges and immunities.
A State law establishing one system of law in one portion of
its territory and another system in another, prescribing the
jurisdiction of the several courts with reference to territory,
subject-matter, and the finality of the judgments rendered, was,
however, held not to be obnoxious to the XVI Amendment. That
amendment was declared to contemplate the protection or persons
and classes, and not to relate to territorial or municipal
arrangements made for the different portions of the States. (108)
So, too, in another case a distinction was pointed out
between discriminations concerning different kinds of business in
certain hours and discriminations between different classes
engaged in the same kind of business. The former were declared
to be admissible, the latter inadmissible. (109)
In the case of Yick Wo v. Hopkins, (110) which arose under
certain laws of San Francisco plainly discriminating against
Chinamen, and upon proof that these laws were partially
administered, it was held that arbitrary and unjust
discriminations founded on differences of race between persons
otherwise in similar circumstances were violative of the XIV
Amendment. The court said that if the law was so framed as to
admit of a partial administration, it was void. But in a later
case in which the constitution and laws of a State were assailed
as framed and fraudulently intended to exclude the negro
population from suffrage, the court said that where the
provisions of a State constitution or law do not, on their face,
show a discrimination, and it has not been shown that their
actual administration is evil, but only that evil is possible
under them, they are not obnoxious to the XIV Amendment. (111)
The creation of certain State railroad commissions with
power to regulate domestic operation of railroads was held not to
violate this principle.
The case which is perhaps more signally illustrative of the
extent to which these extravagant claims have been carried than
any other is that in which a man owning a Newfoundland dog sued a
railroad for killing the dog. The railroad defended by pleading
a State statute which denied to the owner of a dog the right to
sue for the same as property unless he had first registered the
animal and paid a license fee. The court below sustained the
plea, and the plaintiff appealed to the Supreme Court of the
United States on the ground that the State law denied the right
to sue for the value of his dog unless he registered it and paid
a license abridged his privilege, deprived him of his property
without due process of law, and denied him the equal protection
of the laws. It is hardly necessary to add that the Supreme
Court rejected the claims asserted. (112)
Having now fully considered every aspect of the amendment
and the decisions rendered under it, we may leave the subject
with the single remark that while it has not proved to be "a new
Magna Carte," the great discussions of the true relations between
the Nation and the States composing it, and of citizens to Nation
and State, to which this amendment has given rise, have resulted
in a most beneficial and thorough understanding of what rights of
the citizen are derived from and protected by the Nation, and
what are derived from and protected by the States. It is
doubtful whether without the XIV Amendment these questions would
have been so fully digested and settled in a century of
litigation.
The Fifteenth Amendment
The language of the XV Amendment is as follows: "The right of
citizens of the United States to vote shall not be denied or
abridged by the United States; or by any State on account of
race, color, or previous condition of servitude. The Congress
shall have power to enforce this article by appropriate
legislation."
The amendment relates exclusively to the subject of voting.
It simply forbids either the Federal or the State government to
deny or abridge the right of citizens of the United States to
vote "on account of race, color, or previous condition of
servitude."
It relates to no other cause of denial than race, color, or
previous condition of servitude. It does not forbid the denial
or abridgment of the right to vote, by the Nation or the State,
for any other cause.
It makes no attempt to forbid or to punish the effort by an
individual to deny or abridge the right of a citizen to vote, and
it gives to Congress no power to legislate against an individual
who attempts to deny or abridge the right of a citizen to vote.
The prohibition of the amendment is against the United States and
the States alone. The power given to Congress to enforce the
article is power to enforce it against the United States or the
States; which is not power to legislate against individuals for
like offenses. (113) Such legislation by Congress against
individuals has been held to be beyond the power of Congress, and
not "appropriate legislation" within the meaning of the
amendment.
The first case in which the power of Congress to legislate
under this amendment, against individuals, for offenses committed
against suffrage, is the case of U.S. v. Reese (114) and the last
case is the case of James v. Bowman. (115) Between these two
come the cases of U.S. v. Harris (116) and Baldwin v. Franks.
(117) All are to the same effect. In the cases of U.S. v.
Cruikshank, (118) McPherson v. Blacker, (119) Wiley v. Sinkler,
(120) and Swafford v. Templeton (121) the origin of suffrage was
fully discussed. The language used in the early case of Minor v.
Happersett, (122) which declared that suffrage originated solely
in the States, was modified to the extent of declaring that the
right to vote for members of Congress and for presidential
electors had its origin not in any State legislation, but in the
Constitution of the United States.
In the case of Neal v. Delaware, (123) it was declared that
the XV Amendment annulled the word "white" in the State
constitution of Delaware as a qualification of suffrage. The
Supreme Court, in referring to this, said, in the case of Ex p.
Yarbrough, (124) that there are cases in which the XV Amendment
substantially confers the right to vote on the negro, although it
gives him no affirmative right; as where it annuls the word
"white" in the State constitution of Delaware.
But it by no means follows from this prohibition of a
discrimination on the sole ground of race, color, or previous
condition of servitude, that any citizen of the United States is
entitled to vote by reason of his color. The decisions cited in
connection with the XIV Amendment, the rulings of which are
equally applicable to the XV Amendment, all hold that the States
may impose reasonable qualifications upon suffrage, and that if
those qualifications are not based on race, color, or previous
condition of servitude, but are applicable to all citizens alike,
they are within the power of the States and beyond the reach of
congressional legislation.
We may well conclude the discussion of this chapter with the
language of the Supreme Court of the United States in the ease of
Mattox v. U. S., (125) as follows: "We are bound to interpret
the Constitution in the light of the law as it existed at the
time it was adopted not as reaching out for new guaranties of the
rights of the citizen, but as securing to every individual such
as he already possessed,... such as his ancestors had inherited
and defended since the days of Magna Carte."
Footnotes:
(1) This amendment, as well as the Fourteenth, in undoubtedly
self-executing without any ancillary legislation, so far as
its terms are applicable to any existing state of
circumstances. By its own unaided force and effect it
abolished slavery and established universal freedom. Still
legislation may be necessary and proper to meet all the
various cases and circumstances to be affected by it, and to
prescribe proper modes of redress for its violation in
letter or spirit. And such legislation may be primary and
direct in its character; for the amendment is not a mere
prohibition of State laws establishing or upholding slavery,
but an absolute declaration that slavery or involuntary
servitude shall not exist in any part of the United States."
Civil Rights Cases, (1883) 109 U. S. 20. See also Peonage
Cases, (1903) 123 Fed. Rep. 671; U. S. v. McClellan, (1904)
127 Fed. Rep. 971.
(2) White v. Hart (1871) 13 Wall. U.S. 646; Osborn v.
Nicholson, (1871) 13 Wall. U.S. 654.
There is nothing in the language of the amendment which in
the slightest degree warrants the inference that those who
framed or those who adopted it intended that it should
effect the destruction of rights legally and completely
vested at the time of its adoption. Osborn v. Nicholson
(1871) 13 Wall. U.S. 602; White v. Hart (1871) 13 Wall.
U.S. 646.
(3) Undoubtedly, while negro slavery alone was in the mind of
the Congress which proposed the thirteenth article, it
forbids any other kind of slavery, now or hereafter. If
Mexican peonage or the Chinese cooly labor system shall
develop slavery of the Mexican or Chinese race within our
territory, this amendment may safely be trusted to make it
void. And so, if other rights are assailed by the States
which properly and necessarily fall within the protection of
these articles, that protection will apply though the party
interested may not be of African descent." Slaughter-House
Cases (1872) 16 Wall. 4 U.S. 71. See also Plessy v.
Ferguson, (1896) 163 U.S. 642; U.S. v. Wong Kim Ark, (1898)
169 U.S. 677.
(4) Civil Rights Cases (1883) 109 U.S. 3.
"A statute which implies merely a legal distinction between
the white and colored races -- a distinction which is
founded in the color of the two races, and which must always
exist so long as white men are distinguished from the other
race by color -- has no tendency to destroy the legal
equality of the two races, or re-establish a state of
involuntary servitude .... Legislation is powerless to
eradicate racial instinct or to abolish distinctions based
upon physical differences, and the attempt to do so can only
result in accentuating the difficulties of the present
situation. If the civil and political rights of both races
be equal, one cannot be inferior to the other civilly or
politically. If one race be inferior to the other socially,
the Constitution of the United States cannot put them upon
the same plane" Plessy v. Ferguson, (1896) 163 U.S. 543,
551.
(5) Louisville, etc., R. Co. v. Mississippi, (1890) 133 U. S.
587; Plessy v. Ferguson, (1896) 163 U. S. 537; Cumming v.
Board of Education, (1899) 175 U.S. 528; Chesapeake, etc.,
R. Co. v. Kentucky, (1900) 179 U. S. 387.
(6) Robertson v. Baldwin, (1897) 165 U. S. 275.
"The amendment was not intended to introduce any novel
doctrine with respect to certain descriptions of service
which have always been treated as exceptional, such as
military and naval enlistments, or to disturb the right of
parents and guardians to the custody of their minor children
or wards. The amendment, however, makes no distinction
between a public and a private service. To say that persons
engaged in a public service are not within the amendment is
to admit that there are exceptions to its general language,
and the further question is at once presented, where shall
the line be drawn? We know of no better answer to make than
to say that services which have from time immemorial been
treated as exceptional shall not be regarded as within its
purview." Robertson v. Baldwin, (1897) 165 U. S. 282.
(7) (1832) 6 Pet. U.S. 761.
(8) (1856) 19 How. U.S. 398.
(9) Slaughter-House Cases, (1872) 16 Wall. U.S. 36; Strauder v.
West Virginia, (1879) 100 U.S. 306; Elk v. Wilkins, (1884)
112 U.S. 101; U.S. v. Wong Kim Ark, (1898) 169 U.S. 676;
Maxwell v. Dow, (1900) 176 U.S. 593.
"Enough appears in the language employed in those provisions
[the Civil Rights Act and the Fourteenth Amendment to the
Federal Constitution] to allow that their principal object
wait to confer citizenship, and the rights which belong to
citizens as such, upon the colored people, and in that
manner to abrogate the rules previously adopted by this
court in the Dred Scott case." Per Mr. Justice Clifford in
Hall v. De Cuir, (1877) 95 U.S. 509.
The distinction between citizenship of the United States and
citizenship of a State is clearly recognized and
established. Not only may a man be a citizen of the United
States without being a citizen of a State, but an important
element is necessary to convert the former into the latter.
He must reside within the State to make him a citizen of it,
but it is only necessary that he should be born or
naturalized in the United States to be a citizen of the
Union. It is quite clear, then, that there is a citizenship
of the United States, and a citizenship of a State, which
are distinct from each other, and which depend upon
different characteristics in the individual." Slaughter-
House Cases, (1872) 16 Wall. U.S. 73.
(10) Positive rights and privileges are undoubtedly secured by
the Fourteenth Amendment; but they are secured by way of
prohibition against State laws and State proceedings
affecting those rights and privileges, and by power given to
Congress to legislate for the purpose of carrying such
prohibition into effect, and such legislation must
necessarily be predicated upon such supposed State laws or
State proceedings, and be directed to the correction of
their operation and effect." Civil Rights Cases, (1883) 109
U.S. 11. See also U.S. v. Cruikshank, (1875) 92 U.S. 542;
Virginia v. Rives (1879) 100 U.S. 313; Ex p. Virginia,
(1879) 104 U.S. 339; Plessy c. Ferguson, (1896) 163 U.S.
637.
(11) U.S. v. Reese, (1875) 92 U.S. 215.
(12) U.S. v. Cruikshank, (1875) 92 U.S. 542.
(13) (1882) 106 U.S. 640.
(14) Baldwin v. Frank, (1887) 120 U.S. 684; Powell v.
Pennsylvania, (1888) 127 U.S. 685; In re Kemmler, (1890)
136 U.S. 448; In re Rahrer, (1801) 140 U.S. 554; McPherson
v. Blacker (1892) 146 U.S. 39; Mobile, etc., R. Co. v.
Tennessee (1894) 153 U.S. 506; Scott v. McNeil (1894) 154
U.S. 34, 45; Chicago, etc., R. Co. v. Chicago, (1897) 166
U.S. 226, 233; Louisville, etc.. R. Co. v. Kentucky, (1902)
183 U.S. 511; Chadwick v. Kelley, (1903) 187 U.S. 540;
Missouri v. Dockery, (1903) 191 U.S. 170.
(15) (1800) 136 U.S. 448.
(16) Civil Rights Cases, (1883) 109 U.S. 11.
(17) "The prohibitions of the amendment are against State laws
and acts done under State authority. Of course, legislation
may, and should be, provided in advance to meet the exigency
when it arises; but it should be adopted to the mischief
and wrong which the amendment was intended to provide
against; and that is, State laws, or State action of some
kind, adverse to the rights of the citizen secured by the
amendment. Such legislation cannot properly cover the whole
domain of rights appertaining to life, liberty, and
property, defining them and providing for their vindication.
That would be to establish a code of municipal law
regulative of all private rights between man and man in
society. It would be to make Congress take the place of the
State legislatures and to supersede them." Civil Rights
Cases (1883) 109 U.S. 13.
(18) James v. Bowman, (1903) 100 U.S. 127.
(19) Strauder v. West Virginia, (1879) 100 U.S. 303.
(20) Virginia v. Rives (1879) 100 U.S. 313.
(21) (1879) Ex p. Virginia, 100 U.S. 339.
(22) (1882) 106 U.S. 640.
(23) (1883) 109 U.S. 3.
(24) (1887) 120 U.S. 684.
(25) (1903) 100 U.S. 127.
(26) In the Civil Rights Cases, (1883) 100 U.S. 3, the case of Ex
p. Virginia, (1879) 100 U.S. 330, is distinguished by the
Supreme Court in the following language: "In the Virginia
case, the State, through its officer, enforced a rule of
disqualification which the law was intended to abrogate and
counteract. Whether the statute book of the State actually
laid down any such rule of disqualification or not, the
State, through its officer, enforced such a rule; and it is
against such State action, through its officers and agents,
that the last clause of the section is directed. This
aspect of the law was deemed sufficient to divest it of any
unconstitutional character, and makes it differ widely from
the first and second sections of the same act which we are
now considering."
"The prohibition of the amendment refers to all the
instrumentalities of the State, to its legislative,
executive, and judicial authorities; and therefore whoever,
by virtue of public position under a State government,
deprives another of any right protected by that amendment
against deprivation by the State `violates the
constitutional inhibition; and as he acts in the name of
and for the State, and is clothed with the States power, his
act is that of the State.' This must be so, or, as we have
often said, the constitutional prohibition has no meaning,
and `the State has clothed one of its agents with power to
annul or evade it.'" Chicago, etc., R. Co. v. Chicago,
(1897) 166 U.S. 233.
(27) Missouri v. Lewis (1879) 101 U.S. 22; Neal v. Delaware,
(1880) 103 U.S. 370; Carter v. Texas, (1900) 177 U.S. 442;
Rogers v. Alabama, (1904) 192 U.S. 226; Tarrance v.
Florida, (1903) 188 U.S. 519.
(28) The decisions of the United States Supreme Court under the
XIV Amendment are listed in the order of their rendition in
the Appendix A at the close of this volume.
(29) The following are the only cases decided by the Supreme
Court of the United States sustaining claims set up under
the XIII, XIV, and XV Amendments:
Discrimination on juries against negroes: Strauder v. West
Virginia (1879) 100 U.S. 303; Ex p. Virginia, (1879) 100
U.S. 339; Missouri v. Lewis (1879) 101 U.S. 22; Neal v.
Delaware, (1880) 103 U.S. 370; Carter v. Texas (1900) 177
U.S. 442; Rogers v. Alabama (1904) 192 U.S. 226; Tarrance
v. Florida (1903) 188 U.S. 519.
Discriminating against Chinamen: Yick Wo v. Hopkins (1886)
118 U.S. 356.
Discriminating State laws of taxation, assessment, rates, or
regulations: Santa Clara County v. Southern Pac. R. Co.,
(1880) 118 U.S. 394; California v. Central Pac. R. Co.,
(1888) 127 U.S. 40; Chicago, etc., R. Co., v. Minnesota,
(1890) 134 U.S. 418; Minneapolis Eastern R. Co. v.
Minnesota (1890) 134 U.S. 467; Reagan v. Farmers' L. & T.
Co. (1894) 154 U.S. 362; Missouri Pac. R. Co. v. Nebraska
(1896) 164 U.S. 403; Covington,etc., Turnpike Road Co., v.
Sandford (1896) 164U.S. 578; Bulg, etc., R. Co. v. Ellis
(1897) 165U.S. 150; Smyth v. Ames(1898) 169 U.S. 466;
Norwood v. Baker (1898) 172 U.S. 269; Dewey v. Des Moines
(1899) 173U.S. 193; Lake Shore, etc. R. Co. v. Smith (1899)
173U.S. 684 (selling 1,000 mile tickets); Cotting v. Kansas
City Stock Yards Co. (1901) 183 U.S. 79; Louisville etc.,
Ferry Co. v. Kentucky (1903) 188 U.S. 385.
Discrimination in State procedure: Prout v. Starr (1903)
188 U.S. 537; Roller v. Holly (1900) 176 U.S. 398; Smyth
v. Ames (1898) 169 U.S. 466.
No due process: Scott v. McNeal (1894) 154 U.S. 34 (man
supposed to be dead; was alive).
Particular rights: Royall v. Virginia (1886) 116 U.S. 572
(abridging right to practice profession); Barron v.
Burnside (1887) 121 U.S. 186; Allgeyer v. Louisiana(1897)
165 U.S. 579 (abridging right of contract); Blake v.
McClung (1898) 172 U.S. 239 (discrimination between citizens
of States).
(30) The Fourteenth Amendment did not radically change the whole
theory of the relations of the State and Federal governments
to each other, and of both governments to the people. The
same person may be at the same time a citizen of the United
States and a citizen of a State. Protection to life,
liberty, and property rests primarily with the States, and
the amendment furnishes an additional guaranty against any
encroachment by the States upon the fundamental rights which
belong to citizenship, and which the State governments were
created to secure. The privileges and immunities of
citizens of the United States, as distinguished from the
privileges and immunities of citizens of the States, are
indeed protected by it; but those are privileges and
immunities arising out of the nature and essential character
of the national government, and granted or secured by the
Constitution of the United States." In re Kemmler (1800)
136 U.S. 448; Maxwell v. Dow (1900) 176 U.S. 593. See also
U.S. v. Cruikshank (1875) 92 U.S. 554; Mobile, etc., R. Co.
v. Tennessee (1894) 153 U.S. 506; Giozza v. Tiernan (1893)
148 U.S. 662.
(31) Slaughter House Cases (1872) 16 Wall. U.S. 36.
(32) Barbier v. Connolly (1885) 113 U.S. 27; Soon Hing v.
Crowley (1885) 113 U.S. 703; Yick Wo v. Hopkins (1886) 118
U.S. 356.
(33) License Cases (1847) 5 How. U.S. 504; Bartemeyer v. Iowa,
(1873) 18 Wall. U.S. 133; Boston Beer Co. v. Massachusetts,
(1877) 97 U.S. 25, 33; Foster v. Kansas (1884) 112 U.S.
205; Schmidt v. Cobb, (1886) 119 U.S. 286; Mugler v.
Kansas (1887) 123 U.S. 623; Bowman v. Chicago, etc., R.
Co., (1888) 125 U.S. 465; Kidd v. Pearson, (1888) 128 U.S.
1; Eilenbeeker v. District Ct., (189O) 134 U.S. 31; Leisy
v. Hardin, (1890) 135 U.S. 100; Lyng v. Michigan, (1890)
135 U.S. 161; Crowley v. Christensen, (1890) 137 U.S. 91;
Reymann Brewing Co. v. Brister, (1900) 179 U.S. 445; In re
Rahrer, (1891) 140 U.S. 545; Giozza v. Tiernan, (1893) 148
U.S. 657; Gray v. Connecticut, (1895) 159 U.S. 74; Cronin
v. Adams, (1904) 192 U.S. 108.
(34) Powell v. Pennsylvania, (1888) 127 U.S. 678; Minnesota v.
Barber, (1890) 136 U.S. 318; Brimmer v. Rebman, (1891) 138
U.S. 78.
(35) Kimmish v. Ball, (1889) 129 U.S. 222; Jones v. Brim, (1897)
165 U.S. 180; Rasmussen v. Idaho, (1901); Morris v.
Hitchcock, (1904) 194 U.S. 384; Reid v. Colorado, (1902)
187 U.S. 137.
(36) Hensington v. Georgia, (1896) 163 U.S. 29; Petit v.
Minnesota, (1900) 177 U.S. 164.
(37) Brennan v. Titusville, (1894) 153 U.S. 289; Gundling v.
Chicago (1900) 177 U.S. 183; Emert v. Missouri, (1895) 156
U.S. 296; W. W. Cargill Co. v. Minnesota, (1901) 180 U.S.
452.
(38) Montana Co. v. St. Louis Min., etc., Co., (1894) 152 U.S.
160; Holden v. Hardy, (1898) 169 U.S. 366; Backus v. Fort
St. Union Depot Co., (1898) 169 U.S. 557; Ohio Oil Co. v.
Indiana, (1900) 177 U.S. 190; St. Louis Consol. Coal Co. v.
Illinois, (1902) 185 U.S. 103; Atkin v. Kansas, (1903) 191
U.S. 207.
(39) Aikens v. Wisconsin (1904) 195 U.S. 194; Smiley v. Kansas,
(1905) 196 U.S. 447.
(40) Markets: Natal v. Louisiana (1891) 139 U.S. 621.
Dairies: Petit v. Minnesota, (1900) 177 U.S. 164.
Railroads in Streets: Richmond, etc., R. Co. v. Richmond,
(1877) 96 U.S. 521; New York v. Squire, (1892) 145 U.S.
175.
Grade Crossings: New York, etc., R. Co. v. Bristol, (1894)
151 U.S. 556.
Fishing: Lawton v. Steele, (1894) 152 U.S. 133.
Inspecting mines: Montana Co. v. St. Louis Min., etc., Co.,
(1894) 152 U.S. 160.
Restraining Contracts: Allgeyer v. Louisiana, (1897) 165
U.S. 579.
Marriage: Andrews v. Andrews, (1903) 188 U.S. 14.
Various objects: Wilson v. Eureka City, (1899) 173 U.S. 33;
Lake Shore, etc., R. Co. v. Smith, (1899) 173 U.S. 684.
(41) Bradwell v. State, (1872) 16 Wall. U.S. 130.
(42) Minor v. Happersett, (1874) 21 Wall. U.S. 162.
(43) Bradwell v. State, (1872) 16 Wall. U.S. 130; Dent v. West
Virginia, (1880) 129 U.S. 114; Royall v. Virginia, (1880)
116 U.S. 572; Gray v. Connecticut (1895) 159 U.S. 74;
Reetz v. Michigan, (1903) 188 U.S. 505.
"The power of the State to provide for the general welfare
of its people authorizes it to prescribe all such
regulations as, in its judgement, will secure or tend to
secure them against the consequences of ignorance and
incapacity as well as of deception and fraud.... If they
are appropriate to the calling or profession, and attainable
by reasonable study or application, no objection to their
validity can be raised because of their stringency or
difficulty. It is only when they have no relation to such
calling or profession, or are unattainable by such
reasonable study and application, that they can operate to
deprive one of his right to pursue a lawful vocation." Dent
v. West Virginia, (1880) 129 U.S. 122.
(44) Minor v. Happersett, (1874) 21 Wall. U.S. 162; U.S. v.
Reese (1875) 92 U.S. 214-217; U.S. v. Cruikshank, (1875)
92U.S. 542-554; Ex p. Yarbrough, (1884) 110 U.S. 651; Neal
v. Delaware (1880) 103 U.S. 370; U.S. v. Waddell, (1884)
112 U.S. 76; McPherson v. Blacker, (1892) 146 U.S. 1;
Taylor v. Beckham (1900) 178 U.S. 548; Mason v. Missouri,
(1900) 179 U.S. 328; Wiley v. Sinkler, (1900) 179 U.S. 58;
Swafford v. Templeton, (1902) 185 U.S. 487; Gibson v.
Mississippi, (1896)162 U.S. 565; William v. Mississippi
(1898)170U.S. 213; Giles v. harris (1903) 189 U.S. 486;
Green v. Mills(1895) 69 Fed. Rep. 852, 159U.S. 651; James
v. Bowman (1903) 190 U.S. 127; Pope v. Williams (1904) 193
U.S. 621; Report of Committee on Elections, 58th Congress,
Cong. Record, March 18, 1904, pp. 35, 92, 93.
"The amendment did not add to the privileges and immunities
of a citizen. It simply furnished an additional guaranty
for the protection of such as he already had. No new voters
were necessarily made by it. Indirectly it may have had
that effect, because it may have increased the number of
citizens entitled to suffrage under the constitution and
laws of the States, but it operates for this purpose, if at
all, through the States and State laws, and not directly
upon the citizen." Minor v. Happersett (1874) 21 Wall. U.S.
171.
(45) (1875) 92 U.S. 542.
(46) (1880) 103 U.S. 370.
(47) (1884) 110 U.S. 651.
(48) (1892) 146 U.S. 1.
(49) (1900) 179 U.S. 58.
(50) (1002) 185 U.S. 487.
(51) (1808) 162 U.S. 565.
(52) (1898) 170 U.S. 213.
(53) (1904) 193 U.S. 621.
(54) (1903) 189 U.S. 486.
(55) "A few years experience satisfied the thoughtful men who had
been the authors of the other two amendments that,
notwithstanding the restraints of those articles on the
States, and the laws passed under the additional powers
granted to Congress, these were inadequate for the
protection of life, liberty, and property. without which
freedom to the slave was no boon. They were in all those
States denied the right of suffrage. The laws were
administered by the white man alone it was urged that a race
of men distinctively remarked as was the negro, living in
the midst of another and dominant race, could never be fully
secured in their person and their property without the right
of suffrage. Hence the Fifteenth Amendment." Slaughter-
House Cases, (1872) 10 Wall. (U. S.) 71.
(56) "The privilege to vote in any State is not given by the
Federal Constitution or by any of its amendments. It is not
a privilege springing from citizenship of the United States.
It may not be refused on account of race, color or previous
condition of servitude, but it does not follow from mere
citizenship of the United States. In other words, the
privilege to vote in a State is within the jurisdiction of
the State itself, to be exercised as the State may direct,
and upon such terms as to it may seem proper, provided, of
course, no discrimination is made between individuals in
violation of the Federal Constitution." Pope v. Williams.
(1904) 193 U.S. 632.
(57) In answer to an objection that the Georgia constitution "was
adopted under the dictation and coercion of Congress, and is
the act of Congress rather than of the State," the Supreme
Court has said: "The result was submitted to Congress as a
voluntary and valid offering, and was so received and so
recognized in the subsequent action of that body. The State
is estopped to &"ail it upon such an assumption. Upon the
same grounds she might deny the validity of her ratification
of the constitutional amendments. The action of Congress
upon the subject cannot be inquired into. The case is
clearly one in which the judicial is bound to follow the
action of the political department of the government, and is
concluded by it." White v. Hart, (1871) 13 Wall. U.S. 649.
(58) For the above order of presentation and much of the
language, the author is indebted to the Hon. Edgar D.
Crunsacker, of Indiana, having found them in a remarkably
able speech on representation and suffrage made by him in
the House of Representatives. Feb. 24, 1905.
(59) "The limit of the full control which the State has in the
proceedings of its courts, both in civil and criminal cases,
in subject only to the qualification that such procedure
must not work a denial of fundamental rights or conflict
with specific and applicable provisions of the Federal
Constitution" West v. Louisiana. (1904) 104 U. S. 263.
The decisions of the United States Supreme Court on the
rights of the State to regulate procedure are listed at the
elude of this volume in Appendix B.
(60) Eilenbecker v. District Ct., (1890) 134 U. S. 31.
(61) Edwards v. Elliott, (1874) 21 Wall. U.S. 557; Walker v.
Sauvinet, (1875) 92 U.S. 90; Pearson v. Yewdall, (1877) 95
U.S. 294.
"The States, so far as this amendment is concerned, are left
to regulate trials in their own courts in their own way. A
trial by jury in suits at common law pending in the State
courts is not, therefore, a privilege or immunity of
national citizenship, which the States are forbidden by the
Fourteenth Amendment to abridge. A State cannot deprive a
person of his property without due process of law; but this
does not necessarily imply that all trials in the state
courts affecting the property of persons must be by jury.
This requirement of the Constitution is met if the trial is
had according to the settled course of judicial proceedings"
Walker v. Sauvinet, (1875) 92 U.S. 92.
(62) (1902) 183 U.S. 511.
(63) (1892) 146 U. S. 31
(64) (1898) 170 U. S. 213.
(65) (1891) 137 U. S. 6 31.
(66) (1891) 140 U. S. 297.
(67) A State "has the right to establish the forms of pleadings
and process to be observed in her own courts, in both civil
and criminal cases observed ony to those provisions of the
Constitution of the United States involving the protection
of life, liberty, and property in all the States of the
Union." Ex p. Reggel (1885) 114 U. S. 651.
(68) (1896) 162 U.S. 565.
(69) (1900) 176 U.S. 581.
(70) (1901) 180 U.S. 311.
(71) (1890) 136 U.S. 436.
(72) (1875) 92 U.S. 480.
(73) (1886) 116 U.S. 252.
(74) Hayes v. Missouri, (1887) 120 U.S. 68.
(75) Leeper v. Texas, (1891) 139 U.S. 462.
(76) (1896) 160 U.S. 393.
(77) (1903) 188 U.S. 14.
(78) Brownfield v. South Carolina, (1903) 189 U.S. 426; Smith v.
Mississippi, (1896) 162 U.S. 592.
(79) Northern Securities Co. v. Minnesota, 194 U.S. 48.
(80) The decisions of the United States Supreme Court on the
power of the States to regulate and control the business of
corporations are listed in the order of their rendition at
the close of this volume. See Appendix C.
(81) Santa Clara County v. Southern Pac. R. Co., (1886) 118 U.S.
394; Pembina Consol. Silver Min., etc., Co. v.
Pennsylvania, (1888) 125 U.S. 189; Missouri Pac. R. Co. v.
Mackey, (1888) 127 U.S. 209; Minneapolis, etc., R. Co. v.
Beckwith, (1889) 129 U.S. 28; Home Ins. Co. v. New York,
(1890) 134 U.S. 606; Charlotte, etc., R. Co. v. Gibbes,
(1892) 142 U.S. 391; Gulf, etc., R. Co. v. Ellis, (1897)
185 U.S. 154; Covington, etc., Turnpike Road Co. v.
Sandford, (1896) 164 U.S. 592; Lake Shore, etc., R. Co. v.
Smith, (1899) 173 U.S. 690; Covington, etc., Turnpike Road
Co. v. Sandford, (1896) 144 U.S. 578; Smyth v. Ames (1898)
169 U.S. 464.
"It is now settled that corporations are persons within the
meaning of the constitutional provisions forbidding the
deprivation of property without due process of law, an well
as a denial of the equal protection of the laws."
Covington, etc., Turnpike Road Co. v. Sandford, (1896) 164
U.S. 592.
"The rights and securities guaranteed to persons by that
instrument [the Constitution] cannot be disregarded in
respect to these artificial entities called corporations any
more than they can be in respect to the individuals who are
the equitable owners of the property belonging to such
corporations. A State has no more power to deny to
corporations the equal protection of the law than it has to
individual citizens." Gulf, etc., R. Co. v. Ellis, (1897)
165 U.S. 154.
(82) Philadelphia F. Assoc. v. New York, (1888) 119 U.S. 110;
Waters-Pierce Oil Co. v. Texas, (1900) 177 U.S. 28; Orient
Ins. Co. v. Daggs (1899) 172 U.S. 557.
(83) Missouri Pac. R. Co. v. Humes (1885) 115 U.S. 513.
"The inhibition of the amendment that no State shall deprive
any person within its jurisdiction of the equal protection
of the law was designed to prevent any person or class of
persons from being singled out as a special subject for
discriminating and hostile legislation. Under the
designation of person there is no doubt that a private
corporation is included . . [but] the State is not
prohibited from discriminating in the privileges it may
grant to foreign corporations as a condition of their doing
business or hiring offices within its limits, provided
always such discrimination does not interfere with any
transaction by such corporations of interstate or foreign
commerce." Pembina Consol. Silver Min., etc., Co. v.
Pennsylvania, (1888) 125 U. S. 188.
(84) New York, etc., R. Co. v. Bristol, (1894) 151 U.S. 556.
(85) Tullis v. Lake Erie, etc., R. Co., (1899) 175 U.S. 348.
(86) Field v. Barber Asphalt Paving Co., (1904) 194 U. S. 621,
where the court said: "It is not the purpose of the
Fourteenth Amendment, as has been frequently held, to
prevent the States from classifying the subjects of
legislation and making different regulations an to the
property of different individuals differently situated. The
provision of the Federal Constitution is satisfied if all,
persons similarly situated are treated alike in privileges
conferred or liabilities imposed."
"Legislation does not infringe upon the clause of the
Fourteenth Amendment requiring legal protection of the laws,
because it is special in its character; if in conflict at
all with that clause, it must be on other grounds. And when
legislation applies to particular bodies or associations ,
imposing upon them additional liabilities, it is not open to
the objection that it denies to them the equal protection
of the laws, if all persons brought under its influence are
treated alike under the same conditions." Missouri Pac. R.
co. v. Mackey (1888) 127 U.S. 209.
(87) "Neither the amendment -- broad and comprehensive as it is
-- nor any earlier amendment, was designed to interfere with
the power of the State, sometimes termed its police power,
to prescribe regulations to promote the health, peace,
morals, education, and good order of the people, and to
legislate so as to increase the industries of the State,
develop its resources, and add to its wealth and
prosperity." Barbier v. Connolly (1885) 113 U.S. 31.
"The police power cannot be put forward as an excuse for
oppressive and unjust legislation, [but] it may be lawfully
resorted to for the purpose of preserving the public health,
safety, or morals, or the abatement of public nuisances, and
a large discretion `is necessarily vested in the legislature
to determine not only what the interests of the public
require, but what measures are necessary for the protection
of such interests.'" Holden v. Hardy (1898) 169 U.S. 392.
(88) (1886) 116 U.S. 252.
(89) (1897) 167 U.S. 44.
(90) (1899) 173 U.S. 32.
(91) Pace v. Alabama (1882) 106 U.S. 583.
(92) Davis v. Beason, (1890) 133 U.S. 333.
(93) Booth v. Illinois, (1902) 184 U.S. 425. See also McDonald v.
Massachusetts (1901) 180 U.S. 311; Otis v. Parker (1903)
187 U.S. 606; U.S. v. Williams (1904) 194 U. S. 279;
Public Clearing House v. Coyne, (1904) 104 U.S. 497.
"If, looking at all the circumstances which attend or may
ordinarily attend the pursuit of a particular calling, a
State thinks that certain admitted evil cannot be
successfully reached unless that calling be actually
prohibited, the courts cannot interfere unless, looking
through mere forms and at the substance of the matter, they
can say that the statute, enacted professedly to protect the
public morals, had no real or substantial relation to that
object, but in a clear, unmistakable infringement of rights
secured by the fundamental law." Booth v. Illinois (1902)
184 U.S. 425.
(94) (1890) 133 U.S. 587.
(95) (1896) 163 U.S. 544; Chesapeake, etc., R. Co., v. Kentucky
(1900) 179 U.S. 388.
(96) (1899) 175 U.S. 528.
(97) The decisions of the United States Supreme Court on the
power of the States to regulate State taxation are listed in
the order of their rendition at the close of this volume.
See Appendix D.
(98) "The amendment does not prevent the classification of
property for taxation, subjecting one kind of property to
one rate of taxation, and another kind of property to a
different rate; distinguishing between franchises, licenses
and privileges, and visible and tangible property, and
between real and personal property. Nor does the amendment
prohibit special legislation. Indeed, the greater part of
all legislation is special, either in the extent to which it
operates , or the object bought to be obtained by it. And
when such legislation applies to artificial bodies, it is
not open to objection if all such bodies are treated alike
under similar circumstances and conditions, in respect and
the privileges conferred upon them and the liabilities to
which they are subjected." Home lns. Co. v. New York,
(1890) 134 U. S. 606.
(99) "Clear and hostile discriminations against particular
persons and classes, especially such as are of an unusual
character, unknown to the practice of our government, might
be obnoxious to the constitutional prohibition. It would,
however, be impracticable and unwise to attempt to lay down
any general rule or definition on the subject, that would
include all cases. They must be decided as they arise. We
think that we are safe in saying that the Fourteenth
Amendment was not intended to compel the State to adopt an
iron rule of equal taxation. If that were its proper
construction, it would not only supersede all those
constitutional provisions and laws of some of the States,
whose object is to secure equality of taxation, and which
are usually accompanied with qualifications deemed material;
but it would render nugatory those discriminations which the
best interests of society require, which are necessary for
the encouragement of needed and useful industries, and the
discouragement of intemperance and vice, aud which every
State, in one form or another, deems it expedient to adopt."
Bell's Gap R. Co. v. Pennsylvania, (1890) 134 U.S. 237.
"Perfect equality and perfect uniformity of taxation an
regards individuals or corporations, or the different
classes of property subject to taxation, is a dream
unrealized. It may be admitted that the system which most
nearly attains this is the beet. But the most complete
system which can be devised must, when we consider the
immense variety of subjects which it necessarily embraces,
be imperfect." State Railroad Tax Cases (1875) 92 U.S. 612.
(100) (1900) 178 U.S. 548, where the court said in part: "It is
obviously essential to the independence of the States, and
to their peace and tranquillity, that their power to
prescribe the qualifications of their own officers, the
tenure of their offices, the manner of their election, and
the grounds on which, the tribunals before which, and the
mode in which, such elections may be contested, should be
exclusive, and free from external interference, except so
far as plainly provided by the Constitution of the United
States."
(101) (1855) 18 How. U.S. 272.
(102) (1877) 96 U.S. 97.
While the provision of the Fourteenth Amendment which
ordains that no State shall "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 ..." is new in the Constitution of the United
States, as a limitation upon the powers of the States, it is
old as a principle of civilized government. It is found in
Magna Carte, and, in substance if not in form, in nearly or
quite all the constitutions that have been from time to time
adopted by the several States of the Union. By the Fifth
Amendment, it was introduced into the Constitution of the
United States as a limitation upon the powers of the
national government, and by the Fourteenth, as a guaranty
against any encroachment upon an acknowledged right of
citizenship by the legislatures of the States." Munn v.
Illinois (1876) 94 U. S. 123.
(103) Orient Ins. Co. v. Daggs (I899) 172 U. S. 557.
(104) (1877) 96 U.S. 97.
(105) (1876) 92 U.S. 480.
To ascertain whether a particular process is due process "we
must examine the Constitution itself, to see whether this
process be in conflict with any of its provisions. It not
found to be so, we must look to those settled usages and
modes of proceeding existing in the common and statute law
of England, before the emigration of our ancestors, and
which are shown not to have been unsuited to their civil and
political condition by having been acted on by them after
the settlement of this country." Murray v. Hoboken Land,
etc., Co., (1855) 18 How. U.S. 277.
(106) (1891) 137 U.S. 692.
(107) See also Due Process of Law " by Lucius P. Mc.Gheen.
(108) Missouri v. Lewis, (1879) 101 U.S. 22.
(109) Soon Hing v. Crowley, (1885) 113 U.S. 703, where the court
said: "The specific regulations for one kind of business,
which may be necessary for the protection of the public, can
never be the just ground of complaint because like
restrictions are not imposed upon other business of a
different kind. The discriminations which are open to
objection are those where persons engaged in the same
business are subjected to different restrictions, or are
held entitled to different privileges under the same
conditions. It is only then that the discrimination can be
said to impair that equal right which all can claim in the
enforcement of the laws."
(110) (1886) 118 U.S. 356.
(111) Williams v. Mississippi (1898) 170 U.S. 213.
On the other hand, "though the law itself be fair on its
face and impartial in appearance, yet, if it is applied and
administered by public authority with an evil eye and an
unequal hand, so practically to make unjust and illegal
discriminations between persons in similar circumstances,
material to their rights, the denial of equal justice is
still within the prohibition of the Constitution." Yick Wo
v. Hopkins (1886) 118 U.S. 356.
(112) Sentell v. New Orleans, etc., R. Co. (1897) 166 U.S. 698.
(113) "The principles of interpretation applicable to the first
section of the Fourteenth Amendment are equally applicable
to the construction of the Fifteenth Amendment. The
amendment simply limits State power in respect to suffrage
at State elections by prohibiting discrimination in the
enjoyment of the elective franchise on account of race,
color, or condition. The right to vote in its own election
can be conferred only by the State. No one, therefore, but
the State can `deny or abridge' the right to vote. The
amendment is therefore properly addressed to the State.
Individuals may by unlawful force or fraud prevent an
otherwise lawful voter from voting. But it would simply be
an act of lawless violence. The right of suffrage would not
be denied or abridged. Individuals cannot deny or abridge
the right of suffrage, for they cannot confer it. It is a
right which is secured by, and dependent upon, law ....
Both the Fourteenth and the Fifteenth Amendments are
addressed to State action through some channel exercising
the power of the State." Karem v. U.S. (1903) 121 Fed. Rep.
258.
(114) (1875) 92 U.S. 214.
(115) (1903) 190 U.S. 127.
(116) (1882) 106 U.S. 640.
(117) 120 U.S. 678.
(118) 92 U.S. 542, 554.
(119) 146 U.S. 1.
(120) (1900) 179 U.S. 58.
(121) (1902) 185 U.S. 487.
(122) (1874) 21 Wall. U.S. 162.
(123) (1880) 103 U.S. 370.
(124) (1884) 110 U.S. 651.
(125) (1895) 156 U.S. 237.
# # #
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John S. Wise