resides in Congress to enforce the provisions of this amendment and which proceeds from that power which necessarily flows from the right of Congress to enforce its laws, that body saw fit to include in this amendment, and also in the Thirteenth and Fifteenth Amendments, a provision which expressly confers upon Congress the power to enforce the respective provisions of the amendments. There is, however, a limitation upon the power of Congress contained in the amendments. It is not a general power. The manner in which its enforcement is to be made is contained in the section under consideration and similar sections in the other two amendments. It must be by "appropriate legislation." This naturally suggests the question where does the power reside to determine what is appropriate legislation? Is Congress to be the judge of the appropriateness of its own acts, or is the power vested in the judiciary to determine the question? Fortunately, the question cannot be regarded as any longer open to construction or debate. It rests with the judicial branch of the government to determine what legislation under the amendment is, and what is not appropriate. When Congress can act.-It is a fundamental principle in the construction of the amendment under consideration that it is a limitation upon the power of the States. It was this principle that led Mr. Justice Bradley, in the Civil Rights Cases," to say: "Until some State law has been passed, or some State action through its officers or agents has been taken, adverse to the rights of citizens sought to be protected by the Fourteenth Amendment, no legislation of the United States under said amendment, nor any proceeding under such legislation, can be called into activity. Of course, legislation may, and should be, provided in advance to meet the exigency when it arises; but it should be adapted 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 77 109 U. S., 3, 13. 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. It is absurd to affirm that, because the rights of life, liberty and property (which include all civil rights that men have), are by the amendment sought to be protected against invasion on the part of the State without due process of law, Congress may therefore provide due process of law for their vindication in every case; and that, because the denial by a State to any persons, of the equal protection of the laws, is prohibited by the amendment, therefore Congress may establish laws for their equal protection. In fine, the legislation which Congress is authorized to adopt in this behalf is not general legislation upon. the rights of the citizen, but corrective legislation, that is, such as may be necessary and proper for counteracting such laws as the States may adopt or enforce, and which, by the amendment, they are prohibited from making or enforcing, or such acts and proceedings as the States may commit or take, and which, by the amendment, they are prohibited from committing or taking." In United States v. Sanges,78 Mr. Justice Lamar held: "The provision of the Fourteenth Amendment, authorizing Congress to enforce its guaranties by legislation, means such legislation as is necessary to control and counteract State abridgment." What may be protected by Congress.-It was held in Strauder v. West Virginia, that "A right or an immunity, whether created by the Constitution or only guaranteed by it, even without any express delegation of power, may be protected by Congress." The court said in United States v. Reese, 80 "Rights and immunities created by or dependent upon the Constitution of the United States can be protected by Congress," and "The form and manner of that protection may be such as Congress, in the legitimate exercise of its legislative discretion, shall provide, and this may be varied to meet the necessities of the particular right to be protected." 78 48 F. R., 78, 87. When Congress may not act.-In United States v. Harris,81 the broad rule was established that Congress would have no right to enforce the provisions of the amendment in any of the following cases: "When the State has been guilty of no violation of its provisions; when it has not made or enforced any law abridging the privileges or immunities of citizens of the United States; when no one of its departments has deprived any person of life, liberty or property without due process of law, or denied to any person within its jurisdiction the equal protection of the laws; when, on the contrary, the laws of the State, as enacted by its legislative, and construed by its judicial, and administered by its executive departments, recognize and protect the rights of all persons, the amendment imposes no duty and confers no power upon Congress." In the great Civil Rights Cases82 the question was whether the law of Congress which provided, "All persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude," and providing punishment for any person who violated such law, was constitutional. Mr. Justice Bradley, in speaking of the present clause of the Fourteenth Amendment, said (p. 11) that it authorized Congress "to adopt appropriate legislation for correcting the effects of prohibited State laws and State acts, and thus to render them effectually null, void and innocuous. This is the legislative power conferred upon Congress, and this is the whole of it. It does not invest Congress with power to legislate upon subjects which are within the domain of State legislation; but to provide modes of relief against State legislation, or State action, of the kind referred to. It does not authorize Congress to create a code of municipal law for the regulation of private rights; but to provide modes of redress against the operation of State laws, and the action of State 81 106 U. S., 629, 639. 82 109 U. S., 3-11, 17. officers, executive or judicial, when these are subversive of the fundamental rights specified in the amendment." The act of Congress was held unconstitutional. Mr. Justice Bradley further said (p. 17): "In this connection it is proper to state that civil rights, such as are guaranteed by the Constitution against State aggression, cannot be impaired by the wrongful acts of individuals, unsupported by State authority in the shape of laws, customs or judicial or executive proceedings. The wrongful act of an individual, unsupported by any such authority, is simply a private wrong, or a crime of that individual; an invasion of the rights of the injured party, it is true, whether they affect his person, his property, or his reputation; but if not sanctioned in some way by the State, or not done under State authority, his rights remain in full force, and may presumably be vindicated by resort to the laws of the State for redress. Hence (p. 17) in all those cases where the Constitution seeks to protect the rights of the citizens against discriminative and unjust laws of the State by prohibiting such laws, it is not individual offenses, but abrogation and denial of rights, which it denounces, and for which it clothes the Congress with power to provide a remedy. This abrogation and denial of rights, for which the States alone were or could be responsible, was the great seminal and fundamental wrong which was intended to be remedied. And the remedy to be provided must necessarily be predicated upon that wrong. It must assume that in the cases provided for, the evil or wrong actually committed rests upon some State law or State authority for its excuse and perpetration. In Ex parte Virginia, the rule was stated by Mr. Justice Strong to be (pp. 345, 346): "Congress is authorized to enforce the prohibitions by appropriate legislation. Some legislation is contemplated to make the amendments fully effective. Whatever legislation is appropriate, that is, adapted to carry out the objects the amendments have in view, whatever tends to enforce submission to the prohibitions they contain, and to secure to all persons the enjoyment of perfect equality of civil rights and equal 83 100 U. S., 339, 345, 346. protection of the laws against State denial or invasion, if not prohibited, is brought within the domain of congressional power." But Congress could not, under this clause, undertake, on the ground that the legislation was appropriate, to interfere with State legislation which was purely domestic. Chief Justice Fullers stated the rule to be, "The Four 84 In re Raher, 140 U. S., 545, 555. If the genius and labor of one man more than any other can be said to have brought about the passage of this amendment, that man was Thaddeus Stevens, a representative in Congress from Pennsylvania. The sublime tribute paid to this great and earnest man by Mr. Thorpe for his work in connection with this amendment is inserted here because of its historical value and its characterization of a statesman whose life has not yet been fully appreciated by his countrymen: "Of the authors of the Fourteenth Amendment the most conspicuous and unflinchingly devoted to its adoption, and to the general welfare of the race for whose benefit it was primarily intended, was Thaddeus Stevens of Pennsylvania. No other member of Congress, unless it be Lyman Trumbull, a Senator from Illinois, was more closely identified with the whole policy of Congress formulated in the Reconstruction Acts and culminating now in the changed Constitution. Certainly no member of the House divided authority with Thaddeus Stevens. He dominated its proceedings throughout the Reconstruction period. Yet at this time he had passed the time of life when most men are glad to retire to well-earned repose. If Lincoln was the Moses of the African race in America, Thaddeus Stevens was its Joshua. He fought its battles with terrible earnestness and routed its foes in hopeless defeat. To him the negro was the helpless ward of the Nation and he guarded his interests with a fatherly watchfulness which never slumbered. He bore the wearisome details and vexations of congressional life with the endurance of the granite hills of his native Vermont. "Though the Father of the House in years, his tireless energy exhausted its youngest members; and though a cripple and in broken health, he was never known to be absent from duty, whether in committee or as the leader of the House. He clung to its leadership tenaciously. Conscious that his life was drawing swiftly to a close, he was carried to the sessions, daily, in his chair, from which by the courtesy of the House, he seldom arose, though participating with virile vigor in its work. In the long struggle which culminated in the impeachment of President Johnson, it was the irresistible leadership of Thaddeus Stevens that gave power and coherence to the whole movement. He it was, who, on that Tuesday morning in February, entered the Senate Chamber, and in the name of the House of Representatives and of the American people impeached Andrew Johnson, President of the United States, of high crimes and misdemeanors in office; and it was he, who on the part of the House managed the impeachment throughout and was most disappointed at the President's acquittal. |