CONGRESS, UNITED STATES. 



161 



the party in the Senate denounces it in the 

 most eloquent terms that his fertile brain and 

 inventive genius can suggest. The President 

 recommends civil service reform, and the dis- 

 tinguished Senator from Wisconsin (Mr. Car- 

 penter) pours out upon it all the phials of his 

 wrath and the wonderful scintillations of his 

 wit, and all around the Senate-Chamber we 

 find that civil service reform, though recom- 

 mended by the President and inaugurated by 

 him, gets the cold shoulder from those who are 

 looked upon as his most particular supporters 

 and friends. I do not understand this Admin- 

 istration. If I were an uncharitable man, I 

 should say that here was what in common par- 

 lance is called throwing a tub to the whale ; 

 that it is a promise held out to the ear to be 

 disappointed in the fulfilment ; that when the 

 President says, ' Let us have civil service re- 

 form,' there is a mental reservation that civil 

 service reform shall be killed in Congress; 

 that when he says, 'Let us have amnesty,' there 

 is a mental reservation that leading radicals in 

 the Senate shall kill amnesty stone-dead. 



"Now, Mr. President, I do not charge any 

 such false dealing upon the President ; I charge 

 no such hypocrisy upon him ; and yet it does 

 look wonderfully strange that nearly every im- 

 portant recommendation he makes is ignored 

 by his friends in this Chamber, and the knife 

 put to its throat for the purpose of drawing 

 the life-blood from it. 



" So much, sir, for that. Now, let us have 

 a word or two upon the Constitution ; for my 

 friend from Indiana has considered that the 

 Constitution must be looked into a little. He 

 lays down this broad proposition, that what- 

 ever rights are conferred upon citizens of the 

 United States by the Federal Constitution are 

 taken under the protection of the Federal Con- 

 stitution, and may be enforced by Congress by 

 appropriate legislation. I might grant that 

 proposition, and it would not touch the ques- 

 tion before us ; for there would still remain to 

 be considered whether the rights of the citizen 

 are conferred by the Federal Constitution. 

 That is the first question. 



" Then, secondly, if rights, etc., are so con- 

 ferred, are the rights, privileges, or immunities, 

 assumed by the Senator from Massachusetts in 

 his amendment among them? If either of 

 these questions be answered in the negative, 

 then the Senator's proposition has no applica- 

 tion. Thirdly, comes the question, assuming 

 that we have power to enforce or secure rights, 

 privileges, and immunities, conferred or guar- 

 anteed by the Constitution, in what manner 

 are we authorized to enforce or secure them ; 

 quo modo can we enforce or secure them? 

 And if it is found that you cannot constitution- 

 ally enforce or secure them in the mode pro- 

 posed by the Senator from Massachusetts, that 

 is a conclusive answer to his amendment. If 

 there is some other mode in which you can 

 enforce them according to the Constitution, 

 that other mode is the proper mode. That is 



VOL. XII. 11 A 



the * appropriate legislation ' which it is pro- 

 vided that Congress may adopt. 



" But, says the Senator, these are questions 

 not left to the courts, because it is provided in 

 the fourteenth amendment, in the last clause 

 of it, that ' Congress shall have power to en- 

 force by appropriate legislation the provisions 

 of this article.' Need the Senator from Indi- 

 ana be told that Congress would have precise- 

 ly the same power if that section were stricken 

 out ; that that section is no broader at all than 

 the section of the original Constitution, which 

 gave to Congress the power to enact all legis- 

 lation necessary to carry into effect the provi- 

 sions of the Constitution, or the powers con- 

 ferred upon any department of the Government 

 by it? 



" This very language, ' appropriate legisla- 

 tion,' is taken from an opinion of Chief-Justice 

 Marshall in the case of McCulloch vs. Mary- 

 land, if my memory is right, in which he 

 makes the terms ' necessary legislation ' and 

 ' appropriate legislation ' synonymous and con- 

 vertible terms. So that this language, ' Con- 

 gress shall have power by appropriate legisla- 

 tion to enforce the provisions of this article,' 

 is nothing more than the implied power which 

 Congress would have if the section were 

 stricken out of the article altogether ; nothing 

 more than .Congress had under the old provi- 

 sion authorizing it to enact all legislation 

 necessary to carry out the power conferred 

 upon the Government, or upon any depart- 

 ment thereof. That is all. It is not a substan- 

 tive grant of power; it is simply putting into 

 the form of an express power that which 

 would have been an implied power, were this 

 provision not in the Constitution at all. Does 

 that take the question out of the jurisdiction 

 of the courts ? No, sir, not at all. What, then, 

 is ' appropriate legislation ? ' I will tell you 

 what is appropriate legislation. The Constitu- 

 tion consists of several categories or classes, so 

 to speak. One is a grant of powers to the 

 Federal Government ; another class is a pro- 

 hibition against the exercise of powers by the 

 Federal Government ; and the third class is a 

 prohibition upon the exercise of certain powers 

 by the States. This is the Constitution of the 

 United States : affirmatively, a grant of power ; 

 negatively, a prohibition of power on the part 

 of the Federal Government ; and, secondly, a 

 prohibition against the exercise of power by 

 the State governments. The fourteenth amend- 

 ment, in the main, is confined to this latter 

 category or class. It prohibits the States from 

 exercising certain powers, and the remedy is 

 precisely the same, if a State shall violate that 

 provision of the Constitution, that it would be 

 if it were to violate one of the provisions in the 

 original Constitution. 



" What says the original Constitution ? ' No 

 State shall coin money.' Suppose a State does 

 coin money, how do you get at that ? You get 

 at that under your law in this way: that the 

 act of legislation which authorized the coinage 



