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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 coolly 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
Charta." 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.
(c) 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 wilful 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 vendors.(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)
k. To prescribe regulations concerning many other things.(40)
2. The Right to Regulate Woman'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 nominated."
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 abridgement 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 year's 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 suffrage 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 suffrage 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 suffrage 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 whose 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 Machiavelian 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 ow n
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 Regu-
late 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.
ii. 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 Charta and in the V and XIV
Amendments of the Constitution of the United States. ln 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, and 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 ia 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 YickWo 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 Charta," 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
Charta."
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
coolly 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, (l900) 179
U. S. 387.
(6) Robertson v. Baldwin, (l897) 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. 8. 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 Iegislation 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 refer 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) 164 U.S.
578; Bulg, etc., R. Co. v. Ellis (1897) 165 U.S. 150; Smyth v.
Ames(1898) 169 U.S. 466; Norwood v. Baker (1898) 172 U.S. 269; Dewey v.
Des Moines (1899) 173 U.S. 193; Lake Shore, etc. R. Co. v. Smith (1899)
173 U.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 ofdeception and fraud.... If they
are apprropriate 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 callingor profession, or are unattainable by
such reasonable studyand 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 subsequeut 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 tull control which the State has in the
proceedings of its courts, both in civil and criminal cases, in subject
only to the qualification that s uch 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, wbich the States are
forbidden by the Fourteenth Amendment to abridge. A State cannot deprive
a person of his property without due process of Iaw; but this does not
necessarily imply that all trials in the state courts affecting the
property of persons muat 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) (l892) 146 U. S. 3L
(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 o n ly to t hose provisions of the Constitution uf 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) l88 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) l85 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. 5I3.
"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. Penniiylvania, (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 topromote
the health, peace, morals, education, and good order of the people, and
tolegislate so as toincrease the indisturies 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 forthe
purpose of preserving the public health, safety, ormorals, 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 respectt
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 Charta,
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 emmigration 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 protectionof the public, can never bethe 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 enformment 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
unpartial 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 accountof race, color, or
condition. The right tovote in its own election can be conferred only
by the State. No one, therefore, but the State cna `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 deniedor 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) 92U.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) 179U.S. 58.
(121) (1902) 185U.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.