220 



CONGRESS, UNITED STATES. 



Neither slavery nor involuntary servitude, except 

 us a punishment for crime whereof the party shall 

 have oeen duly convicted, shall exist within the 

 United States, or any place subject to their jurisdic- 

 tion. 



" There is a prohibition upon both the Fed- 

 eral and the State governments. It is not 

 directed against an individual, for how could 

 any individual constitute slavery? Slavery 

 can only exist by operation of law, and law 

 could only be enacted by either the Federal or 

 the State governments. The prohibition then, 

 is upon these governments as governments, 

 and in no other sense whatsoever. 



" Now, let us come to article fourteen, sec- 

 tion 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 where- 

 in they reside. 



" That is mere definition. Then comes the 

 prohibition : 



No State 



"Not 'no individual,' but 'no State' 

 shall make or enforce any law which shall abridge 

 the privileges or immunities of citizens of the United 

 States. 



"An individual cannot make law; it is the 

 State alone that can make law, and it is the 

 State alone that can enforce law ; and there- 

 fore the prohibition is directly upon that sov- 

 ereign being, the State, that it shall neither 

 make nor enforce any law that ' shall abridge 

 the privileges or immunities of citizens of the 

 United States ; ' and proceeding, it says : 



Nor shall any State deprive any person of life, lib- 

 erty, or property, without due process of law ; nor 

 deny to any person within its jurisdiction the equal 

 protection of the laws. 



" Mr. President, is not that plainly a prohi- 

 bition directed to the States in their capacity 

 as States? Is that provision a mere statute of 

 murder, etc. ? Is that merely a provision that 

 no man in the United States shall commit mur- 

 der, that no man in the United States shall 

 kidnap, that no man in the United States shall 

 unlawfully arrest and detain? Is that it? In 

 other words, is this great provision of the Con- 

 stitution degraded to the mere office of an or- 

 dinary criminal code ? No, sir ; but it is a 

 limitation on the power of the States, and its 

 prohibition is addressed to the States. 



"What next? I need not speak of sections 

 2, 3, and 4 of that article, because they are 

 not necessary to illustrate what I am endeav- 

 oring to prove. I therefore proceed to article 

 fifteen ; and what is that ? 



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." 



Mr. Morton, of Indiana, said : " The Senator 

 states that the prohibitions in the first section 

 of the fourteenth amendment are addressed to 

 the States as corporations and not to individ- 

 uals. Calling his attention to the fact that the 

 last section provides that Congress may en- 



force the amendment by appropriate legisla- 

 tion, I ask him how Congress may enforce the 

 prohibitions against a State ? " 



Mr. Thurman : " Just precisely as it enforces 

 the prohibition against a State that it shall not 

 pass any law impairing the obligation of con- 

 tracts, contained in the original Constitution. 

 It enforces it by providing for the making of a 

 case for the judicial tribunals of the United 

 States, in which that law impairing the obliga- 

 tion of contracts may be declared to be null 

 and void. So, too, any law which any State 

 may pass or enforce in violation of the thir- 

 teenth, fourteenth, or fifteenth amendments 

 may be declared void in precisely the same 

 way ; and the only proper and constitutional 

 mode in my judgment for Congress to adopt, 

 is to provide for bringing any such cases 

 that it seems proper to provide for decision 

 before the judicial tribunals of the Federal 

 Government. That was the mode under the 

 Constitution before these amendments were 

 adopted ; and it is the proper mode yet. 



".The Constitution is not so imperfect an 

 instrument as some seem to suppose. It pro- 

 vides not simply for an executive and legis- 

 lative department, but also for a judicial 

 department, and provides that the judicial 

 power shall extend to all cases arising under 

 this Constitution or the laws and treaties made 

 in pursuance thereof. That gives the judicial 

 power ample cognizance of every case that can 

 possibly arise that brings into discussion the 

 validity of any State law which is said to be 

 in contravention of the Constitution of the 

 United States, or the laws of Congress passed 

 in pursuance thereof. 



"And now, in regard to this clause that 

 ' Congress shall have power by appropriate 

 legislation to enforce this article,' Congress 

 would have exactly the same power if that 

 clause were not in the Constitution at all. 

 That does not add one iota to the power of 

 Congress. 



"The section is. 



The Congress shall have power to enforce this ar- 

 ticle by appropriate legislation. 



"That does not add, as I say, one iota to 

 the power of Congress ; and if it were strick- 

 en out of each of the thirteenth and four- 

 teenth and fifteenth amendments, the power 

 of Congress would be precisely what it now 

 is. For what is 'appropriate legislation? ' It 

 is the very same thing that is provided for by 

 the eighth section of article one, as construed 

 by the Supreme Court in McCulloch vs. Mary- 

 land, the well-known and familiar provision as 

 to the power of Congress to make necessary 

 laws, and which reads : 



The Congress shall have power to make all laws 

 which shall be necessary and proper for carrying 

 into execution the foregoing powers, and all other 

 powers vested by this Constitution in the Govern- 

 ment of the United States, or in any department or 

 officer thereof. 



" That provision covers the amendments 



