A Just and Lasting Peace: A Documentary History of Reconstruction

by John David Smith

  These are the circumstances under which the Thirteenth Amendment was proposed for adoption. They are now recalled only that we may better understand what was in the minds of the people when that Amendment was considered, and what were the mischiefs to be remedied and the grievances to be redressed by its adoption,

  We have seen that the power of Congress, by legislation, to enforce the master’s right to have his slave delivered up on claim was implied from the recognition of that right in the National Constitution. But the power conferred by the Thirteenth Amendment does not rest upon implication or inference. Those who framed it were not ignorant of the discussion, covering many years of our country’s history, as to the constitutional power of Congress to enact the Fugitive Slave Laws of 1793 and 1850. When, therefore, it was determined, by a change in the fundamental law, to uproot the institution of slavery wherever it existed in the land, and to establish universal freedom, there was a fixed purpose to place the authority of Congress in the premises beyond the possibility of a doubt. Therefore, ex industria, power to enforce the Thirteenth Amendment, by appropriate legislation, was expressly granted. Legislation for that purpose, my brethren concede, may be direct and primary. But to what specific ends may it be directed? This court has uniformly held that the National Government has the power, whether expressly given or not, to secure and protect rights conferred or guarantied by the Constitution. U.S. v. Reese, 92 U. S., 214 [XXIII., 563]; Strauder v. W. Va., 100 U. S., 303 [XXV., 664]. That doctrine ought not now to be abandoned when the inquiry is not as to an implied power to protect the master’s rights, but what may Congress, under powers expressly granted, do for the protection of freedom and the rights necessarily inhering in a state of freedom.

  The 13th Amendment, it is conceded, did something more than to prohibit slavery as an institution, resting upon distinctions of race, and upheld by positive law. My brethren admit that it established and decreed universal civil freedom throughout the United States. But did the freedom thus established involve nothing more than exemption from actual slavery? Was nothing more intended than to forbid one man from owning another as property? Was it the purpose of the Nation simply to destroy the institution, and then remit the race, theretofore held in bondage, to the several States for such protection, in their civil rights, necessarily growing out of freedom, as those States, in their discretion, might choose to provide? Were the States against whose protest the institution was destroyed, to be left free, so far as national interference was concerned, to make or allow discriminations against that race, as such, in the enjoyment of those fundamental rights which by universal concession, inhere in a state of freedom? Had the 13th Amendment stopped with the sweeping declaration, in its 1st section, against the existence of slavery and involuntary servitude, except for crime, Congress would have had the power, by implication, according to the doctrines of Prigg v. Commonwealth of Pennsylvania, repeated in Strauder v. West Virginia, to protect the freedom established and, consequently, to secure the enjoyment of such civil rights as were fundamental in freedom. That it can exert its authority to that extent is made clear, and was intended to be made clear, by the express grant of power contained in the 2d section of the Amendment.

  That there are burdens and disabilities which constitute badges of slavery and servitude, and that the power to enforce by appropriate legislation the 13th Amendment may be exerted by legislation of a direct and primary character, for the eradication, not simply of the institution, but of its badges and incidents, are propositions which ought to be deemed indisputable. They lie at the foundation of the Civil Rights Act of 1866. Whether that Act was authorized by the 13th Amendment alone, without the support which it subsequently received from the 14th Amendment, after the adoption of which it was re-enacted with some additions, my brethren do not consider it necessary to inquire. But I submit, with all respect to them, that its constitutionality is conclusively shown by their opinion. . . .

  I am of the opinion that such discrimination practiced by corporations and individuals in the exercise of their public or quasi public functions is a badge of servitude, the imposition of which Congress may prevent under its power, by appropriate legislation, to enforce the 13th Amendment; and, consequently, without reference to its enlarged power under the 14th Amendment, the Act of March 1, 1875, is not, in my judgment, repugnant to the Constitution.

  It remains now to consider these cases with reference to the power Congress has possessed since the adoption of the 14th Amendment. Much that has been said as to the power of Congress under the 13th Amendment is applicable to this branch of the discussion, and will not be repeated.

  Before the adoption of the recent Amendments, it had become, as we have seen, the established doctrine of this court that negroes, whose ancestors had been imported and sold as slaves, could not become citizens of a State, or even of the United States, with the rights and privileges guaranteed to citizens by the national Constitution; further, that one might have all the rights and privileges of a citizen of a State without being a citizen in the sense in which that word was used in the national Constitution, and without being entitled to the privileges and immunities of citizens of the several States. Still further, between the adoption of the 13th Amendment and the proposal by Congress of the 14th Amendment, on June 16, 1866, the statute books of several of the States, as we have seen, had become loaded down with enactments which, under the guise of Apprentice, Vagrant, and contract regulations, sought to keep the colored race in a condition, practically, of servitude. It was openly announced that whatever might be the rights which persons of that race had as freemen, under the guarantees of the national Constitution, they could not become citizens of a State, with the privileges belonging to citizens, except by the consent of such State; consequently, that their civil rights as citizens of the State depended entirely upon State legislation. To meet this new peril to the black race, that the purposes of the nation might not be doubted or defeated, and by way of further enlargement of the power of Congress, the 14th Amendment was proposed for adoption.

  Remembering that this court, in the Slaughterhouse Cases, declared that the one pervading purpose found in all the recent amendments, lying at the foundation of each and without which none of them would have been suggested, was

  the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly made freeman and citizen from the oppression of those who had formerly exercised unlimited dominion over him

  —that each amendment was addressed primarily to the grievances of that race—let us proceed to consider the language of the 14th Amendment.

  Its first and fifth sections are in these words:

  SEC. 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 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. . . .

  SEC. 5. That Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

  It was adjudged in Strauder v. West Virginia, 100 U.S. 303, and Ex parte Virginia, 100 U.S. 339, and my brethren concede, that positive rights and privileges were intended to be secured, and are, in fact, secured, by the 14th Amendment.

  But when, under what circumstances, and to what extent may Congress, by means of legislation, exert its power to enforce the provisions of this amendment? The theory of the opinion of the majority of the court—the foundation upon which their reasoning seems to rest—is that the general government cannot, in advance of hostile state laws or hostile state proceedings, actively interfere for the protection of any of the rights, privileges and immunities secured by the 14th Amendment. It is said that such rights, privile
ges and immunities are secured by way of prohibition against state laws and state proceedings affecting such rights and privileges, and by power given to Congress to legislate for the purpose of carrying such prohibition into effect; also, that congressional legislation must necessarily be predicated upon such supposed state laws or state proceedings, and be directed to the correction of their operation and effect.

  In illustration of its position, the court refers to the clause of the Constitution forbidding the passage by a State of any law impairing the obligation of contracts. That clause does not, I submit, furnish a proper illustration of the scope and effect of the 5th section of the 14th Amendment. No express power is given Congress to enforce, by primary direct legislation, the prohibition upon state laws impairing the obligation of contracts. Authority is, indeed, conferred to enact all necessary and proper laws for carrying into execution the enumerated powers of Congress and all other powers vested by the Constitution in the Government of the United States or in any department or officer thereof. And, as heretofore shown, there is also, by necessary implication, power in Congress, by legislation, to protect a right derived from the National Constitution. But a prohibition upon a State is not a power in Congress or in the National Government. It is simply a denial of power to the State. And the only mode in which the inhibition upon state laws impairing the obligation of contracts can be enforced, is, indirectly, through the courts, in suits where the parties raise some question as to the constitutional validity of such laws. The judicial power of the United States extends to such suits for the reason that they are suits arising under the Constitution. The 14th Amendment presents the first instance in our history of the investiture of Congress with affirmative power, by legislation, to enforce an express prohibition upon the States. It is not said that the judicial power of the Nation may be exerted for the enforcement of that Amendment. No enlargement of the judicial power was required, for it is clear that had the 5th section of the 14th Amendment been entirely omitted the judiciary could have stricken down all state laws and nullified all state proceedings in hostility to rights and privileges secured or recognized by that Amendment. The power given is in terms, by congressional legislation, to enforce the provisions of the Amendment.

  The assumption that this Amendment consists wholly of prohibitions upon state laws and state proceedings in hostility to its provisions, is unauthorized by its language. The first clause of the 1st section—“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”—is of a distinctly affirmative character. In its application to the colored race, previously liberated, it created and granted, as well citizenship of the United States, as citizenship of the State in which they respectively resided. It introduced all of that race, whose ancestors had been imported and sold as slaves, at once, into the political community known as the “People of the United States.” They became, instantly, citizens of the United States, and of their respective States. Further, they were brought, by this supreme act of the Nation, within the direct operation of that provision of the Constitution which declares that “The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” Art. 4, sec. 2.

  The citizenship thus acquired, by that race, in virtue of an affirmative grant from the Nation, may be protected, not alone by the judicial branch of the government, but by congressional legislation of a primary direct character; this, because the power of Congress is not restricted to the enforcement of prohibitions upon state laws or state action. It is, in terms distinct and positive, to enforce “the provisions of this article” of Amendment; not simply those of a prohibitive character, but the provisions—all of the provisions—affirmative and prohibitive, of the Amendment. It is, therefore, a grave misconception to suppose that the 5th section of the Amendment has reference exclusively to express prohibitions upon state laws or state action. If any right was created by that Amendment, the grant of power, through appropriate legislation, to enforce its provisions, authorizes Congress, by means of legislation, operating throughout the entire Union, to guard, secure and protect that right.

  It is, therefore, an essential inquiry what, if any, right, privilege or immunity was given, by the Nation, to colored persons, when they were made citizens of the State in which they reside? Did the constitutional grant of state citizenship to that race, of its own force, invest them with any rights, privileges and immunities whatever? That they became entitled, upon the adoption of the 14th Amendment, “to all privileges and immunities of citizens in the several States,” within the meaning of section 2 of article 4 of the Constitution, no one, I suppose, will for a moment question. What are the privileges and immunities to which by that clause of the Constitution they became entitled? To this it may be answered, generally, upon the authority of the adjudged cases, that they are those which are fundamental in citizenship in a free republican government, such as are “common to the citizens in the latter States under their constitutions and laws by virtue of their being citizens.” Of that provision it has been said, with the approval of this court, that no other one in the Constitution has tended so strongly to constitute the citizens of the United States one people. Ward v. Maryland, 12 Wall., 418; Corfield v. Coryell, 4 Wash. C. C., 871; Paul v. Va., 8 Wall., 168; Slaughter-House Cases, 16 Id., 36.

  Although this court has wisely forborne any attempt, by a comprehensive definition, to indicate all of the privileges and immunities to which the citizen of a State is entitled, of right, when within the jurisdiction of other States, I hazard nothing, in view of former adjudications, in saying that no State can sustain her denial to colored citizens of other States, while within her limits, of privileges or immunities, fundamental in republican citizenship, upon the ground that she accords such privileges and immunities only to her white citizens and withholds them from her colored citizens. The colored citizens of other States, within the jurisdiction of that State, could claim, in virtue of section 2 of article 4 of the Constitution, every privilege and immunity which that State secures to her white citizens. Otherwise, it would be in the power of any State, by discriminating class legislation against its own citizens of a particular race or color, to withhold from citizens of other States, belonging to that proscribed race when within her limits, privileges and immunities of the character regarded by all courts as fundamental in citizenship; and that, too, when the constitutional guaranty is that the citizens of each State shall be entitled to “all privileges and immunities of citizens of the several States.” No State may, by discrimination against a portion of its own citizens of a particular race, in respect of privileges and immunities fundamental in citizenship, impair the constitutional right of citizens of other States, of whatever race, to enjoy in that State all such privileges and immunities as are there accorded to her most favored citizens. A colored citizen of Ohio or Indiana, while in the jurisdiction of Tennessee, is entitled to enjoy any privilege or immunity, fundamental in citizenship, which is given to citizens of the white race in the latter State. It is not to be supposed that anyone will controvert this proposition.

  But what was secured to colored citizens of the United States—as between them and their respective States—by the national grant to them of state citizenship? With what rights, privileges or immunities did this grant invest them? There is one, if there be no other: exemption from race discrimination in respect of any civil right belonging to citizens of the white race in the same State. That, surely, is their constitutional privilege when within the jurisdiction of other States. And such must be their constitutional right, in their own State, unless the recent Amendments be splendid baubles, thrown out to delude those who deserved fair and generous treatment at the hands of the Nation. Citizenship in this country necessarily imports at least equality of civil rights among citizens of every race in the same State. It is fundamental in American citizenship that, in respect of such rig
hts, there shall be no discrimination by the State or its officers, or by individuals or corporations exercising public functions or authority, against any citizen because of his race or previous condition of servitude. . . .

  My brethren say, that when a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men’s rights are protected. It is, I submit, scarcely just to say that the colored race has been the special favorite of the laws. The Statute of 1875, now adjudged to be unconstitutional, is for the benefit of citizens of every race and color. What the Nation, through Congress, has sought to accomplish in reference to that race, is—what had already been done in every State of the Union for the white race—to secure and protect rights belonging to them as freemen and citizens; nothing more. It was not deemed enough “to help the feeble up, but to support him after.” The one underlying purpose of congressional legislation has been to enable the black race to take the rank of mere citizens. The difficulty has been to compel a recognition of the legal right of the black race to take the rank of citizens, and to secure the enjoyment of privileges belonging, under the law, to them as a component part of the people for whose welfare and happiness government is ordained. At every step, in this direction, the Nation has been confronted with class tyranny, which a contemporary English historian says is, of all tyrannies, the most intolerable, “For it is ubiquitous in its operation, and weighs, perhaps, most heavily on those whose obscurity or distance would withdraw them from the notice of a single despot.” Today, it is the colored race which is denied, by corporations and individuals wielding public authority, rights fundamental in their freedom and citizenship. At some future time, it may be that some other race will fall under the ban of race discrimination. If the constitutional Amendments be enforced, according to the intent with which, as I conceive, they were adopted, there cannot be in this Republic, any class of human beings in practical subjection to another class, with power in the latter to dole out to the former just such privileges as they may choose to grant. The supreme law of the land has decreed that no authority shall be exercised in this country upon the basis of discrimination, in respect of civil rights, against freeman and citizens because of their race, color or previous condition of servitude. To that decree—for the condition of servitude. To that decree—for the due enforcement of which, by appropriate legislation, Congress has been invested with express power—every one must bow, whatever may have been, or whatever now are, his individual views as to the wisdom or policy, either of the recent changes in the fundamental law, or of the legislation which has been enacted to give them effect.