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should be regarded as definitely and forever overthrown. This has finally been effected by the national power, as it had often been before by overwhelming argument. . . . The United States is not only a government, but it is a national government, and the only government in this country that has the character of nationality; it is invested with power over all the foreign relations of the country, war, peace, and negotiations and intercourse with other nations ; all which are forbidden to the state governments. It has jurisdiction over all those general subjects of legislation and sovereignty which affect the interests of the whole people equally and alike, and which require uniformity of regulations and laws, such as the coinage, weights and measures, bankruptcies, the postal system, patent and copyright laws, public lands, and interstate commerce : all which subjects are expressly or impliedly prohibited to the state governments. It has power to suppress insurrections, to repel invasions, to organize, arm, discipline into the service, the militia of the whole country. The President is charged with the duty, and invested with the power to take care that the laws be faithfully executed. The judiciary has jurisdiction to decide controversies between the states, and between their respective citizens, as well as questions of national concern; and the government is clothed with power to guarantee to every state a republican form of government, and to protect each of them against invasion and domestic violence. For the purpose of carrying into effect these and other powers conferred, and of providing for the common defence and general welfare, Congress is further invested with the taxing power in all its forms, except that of laying duties upon exports, with the power to borrow money on the national credit, to punish crimes against the laws of the United States and of nations, to constitute courts, and to make all laws necessary


proper carrying into execution the various powers vested in the government or any department or officer thereof."

In 1883, Mr. Justice Miller said:1

The proposition that the general government has not the power to protect the elections upon which its existence depends from violence and force is supported by the old argument, often heard, often repeated, and in this Court never assented to, that when a question of the power of Congress arises, the advocate of the power must be able to place his finger on words which expressly granted it. It destroys at one blow, in construing the Constitution of the United States, the doctrine universally applied to all instruments in writing,

1 Ex parte Yarbrough, 110 U. S. Rep. 658.

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that what is implied is as much a part of the instrument as what is expressed. This principle in its application to the Constitution of the United States, more than to almost any other writing, is a necessity, by reason of the inherent inability to put into words all derivative powers, a difficulty which the instrument itself recognizes, by conferring upon Congress the authority to pass all laws necessary and proper for carrying into execution the powers expressly granted, and all other powers vested in the government or any branch of it by the Constitution.”

In Texas v. White, Chief Justice Chase, after referring to the Articles of Confederation, by which the Union was declared to “ be perpetual,” and then to the Constitution, ordained “ to form a more perfect union,” said :

“ What can be indissoluble, if a perpetual union made more perfect, is not? ... The people of each state compose a state, having its own government and endowed with all the functions essential to separate and independent existence, and without the states in union there could be no such political body as the United States. The preservation of the states and the maintenance of their governments are as much within the care of the Constitution as the preservation of the Union and the maintenance of the national government. The Constitution in all its provisions looks to an indestructible Union composed of indestructible states.”

17 Wallace, 725.

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The Thirteenth, Fourteenth, and Fifteenth amendments mark a new era in our constitutional history. They did not grant universal manhood suffrage, but they led to it. They did constitute the deed of gift, by the United States, of freedom and citizenship to the slave and to the native and naturalized negro, and hence, either directly or indirectly, of every civil right, privilege, and immunity which freedom and citizenship confer upon the negro race. This was their primary object. But their scope was far wider ; and its full extent has not yet been ascertained. The possible scope and effect of these amendments upon all the people of the United States, and upon the power of the nation, to exercise, control, , and abridge the powers of the states in the making of the laws which affect the personal rights of all the people, made these amendments a critical turning-point in our constitutional history. Both the nation and the states stood at the dividing of ways. Which way would be taken depended upon the

. construction which the Supreme Court should give to these amendments. No more solemn or momentous responsibility had devolved upon the Court since the foundation of the government. Passing by the question of the liberty, citizenship, and civil rights of the negro race, with respect to which the purpose and effect of the amendments were supposed to be clear, the first section of the Fourteenth Amendment presented questions, not only fairly debatable, but of a consequence and gravity scarcely possible to overestimate.

This section provides :

“ 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."

The fifth section provides :-

“ The Congress shall have power to enforce by appropriate legislation the provisions of this article."

The extent and definition of citizenship of the United States had been a vexed question, greatly discussed but not settled in the Dred Scott case. Did this amendment put all these questions aside and make citizenship of the United States the primary and greater citizenship, including all the less, — such as citizenship of a territory or the District of Columbia, – and make it sufficient of itself to be the source, support, and protection of all the civil rights of the freeman? Would these civil rights be and remain the privileges and immunities of the citizen of the United States, and, because of the greater citizenship of the nation, be above the reach of any part of the whole ? Were the life, liberty, and property of every person thus brought within the supreme protection of the supreme power, and hence made inviolable except by due process of law, to be prescribed by the appropriate legislation of Congress ? and hence were the states commanded not to deprive any person of this gift of the supreme power, except by such process of law? Was Congress authorized to provide by appropriate legislation for the equal protection of every person, and for such purpose enact laws which should be paramount in every jurisdiction ? and therefore was it that the states were forbidden to deny to any person within their respective jurisdictions such protection ? Were there to be a major and a minor jurisdiction, and should the minor deny no right, privilege, immunity, protection, form, or process of law which the major jurisdiction should establish? And if so, should the nation make every person secure against such denial by the state, by “appropriate legislation ” prescribing the laws, touching all these matters, which laws the state, and upon its default, the nation, should execute everywhere? Would it not be appro




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priate legislation to supersede every state law respecting every
one of these matters, define by a national code their nature
and extent, and prescribe for their protection, regulation, and
enjoyment? Let these questions be answered in the affirma-
tive, and the states would cease to be sovereignties, and would
become mere territorial or geographical divisions of the nation.

And it was easy to answer them in the affirmative. The
Supreme Court had held with respect to the surrender of the
fugitive slave that the constitutional provision that no law of
any state into which the slave might escape should discharge
him from slavery, but that he should be delivered up, was not
only a veto of such state law, but an enabling power in Con-
gress to make the necessary laws to give complete effect to the
master's right to reclaim his slave. Mr. Justice Harlan, in his
dissenting opinion in the Civil Rights cases," said: -

“I insist that the national legislature may, without transcending
the limits of the Constitution, do for human liberty and the fundamen-
tal rights of American citizenship what it did, with the sanction of
this Court, for the protection of slavery and the rights of the masters
of fugitive slaves.”

Mr. Justice Swayne, in the like opinion in the Slaughter-
House cases, 2 said :-

“These amendments are all consequences of the late civil war.
The prejudices and apprehension as to the central government which
prevailed when the Constitution was adopted were dispelled by the
light of experience. The public mind became satisfied that there
was less danger of tyranny in the head than of anarchy and tyranny
in the members. Before the war ample protection was given against
oppression by the Union, but little was given against wrong and op-
pression by the states. That want was intended to be supplied by
this amendment.”

In the exposition of these amendments the Supreme Court has in a great degree disappointed the expectation of their framers. Certainly, the Court has not risen to the summit level of the revolutionary reformers. It has refused to give them that construction which would draw to Congress full power of affirmative legislation over all the important matters embraced within them. It has discriminated sharply and 1 109 U. S. 26, 53.

2 16 Wallace, 128.

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