CONGRESS, UNITED STATES. 



adopted afterward, lust as much aa it covora 

 tliu i>u\\ ITS conferred by the original Constitu- 

 tion. 



"The judicial power extends to 'all cases' 

 you must have a case made before you can 

 have a decision that a State law or a State 

 decision is unconstitutional. The function of 

 Congress is to provide by law for the making 

 of the case, and then the judicial power inter- 

 venes and decides upon the validity or invalid- 

 ity of the State law. 



" The provision at the close of section 

 eight of article one, ' that Congress shall have 

 power to make all laws,' etc., applies to all 

 provisions of the Constitution that may be in 

 it in nil time to come. It is a standing, speak- 

 ing power that continues for all time as long 

 as the Constitution shall endure, and reaches 

 every particle of it, however it may be added 

 to by amendment. We all know perfectly 

 well that that provision ' to make all laws 

 which shall be necessary and proper for car- 

 rying into execution the foregoing powers,' 

 and so on, is wholly and absolutely unneces- 

 sary. It was so declared and no man ever 

 contradicted it in the Federalist, and proved 

 to be wholly unnecessary, and it was put in 

 only out of abundant caution. In no debate 

 whatever, either in the Federal Convention or 

 in the conventions of the States, have I ever 

 seen, nor do I believe that it has ever been 

 found, the position that that was a substantive, 

 independent power of Congress. It was noth- 

 ing but putting in words, in the form of an ex- 

 press grant, that power which would have re- 

 sulted by necessary implication even if those 

 words were stricken out of the Constitution ; 

 and so it is expressly stated in the Federalist. 

 There is no question about that. 



41 Now, whence come these words, ' appro- 

 priate legislation?' They come from the lan- 

 guage' of Marshall in deciding the case of 

 McCulloch vs. The State of Maryland. It had 

 been argued that Congress could not pass laws 

 under this provision ' which may be necessary 

 and proper for carrying into execution the 

 foregoing powers,' etc., unless the measure 

 adopted by Congress was one that was ' abso- 

 lutely necessary,' and by ' absolutely neces- 

 sary' was meant one which if it were not 

 enacted would leave an express power with- 

 out execution ; that it was one which must be 

 enacted in order that the express power could 

 be executed at all, and therefore it must be 

 one upon which the very existence of the ex- 

 press power in practice must depend. Other- 

 wise it was not necessary legislation. We 

 know with what power Marshall reasoned 

 that down ; and, going perhaps to the other 

 extreme, he said that it was sufficient that the 

 legislation was a natural and proper mode of 

 effecting the end to be accomplished ; that if 

 the end was within the competency of Con- 

 gress under the Constitution, then Congress 

 had the power to adopt any means which are 

 4 appropriate ' and proper. 4 Appropriate ' was 



the very word he used, and it was from that 

 decision, using that word, that Congress had 

 the power to adopt any legislation which was 

 in its judgment appropriate, that the last sec- 

 tion in each of the thirteenth, fourteenth, and 

 fifteenth amendments was derived. It was 

 taken right from that decision, showing con- 

 clusively that nothing more was meant by this 

 clause, ' Congress shall have power to enforce 

 by appropriate legislation the provisions of this 

 article,' than was meant by the last clause in 

 the eighth section of the first article of the 

 Constitution, which says that Congress may 

 make all laws which shall be necessary and 

 proper for carrying into execution the forego- 

 ing powers, etc. They mean precisely the 

 same thing; and therefore if this pro vision upon 

 which so much has been based, and which the 

 Senator from Indiana over the way (Mr. Pratt) 

 seems to think overrides every thing in the Con- 

 stitution and allows us to legislate whatever 

 we please, whatever we may deem to be ap- 

 propriate on the subjects provided for in these 

 amendments to the Constitution, were stricken 

 out of these articles, their provisions would not 

 be weakened one single particle ; not by the 

 weight of a hair would they be weakend ; they 

 would be precisely the same. Nay, if the last 

 clause were stricken out of section 8 of article 

 1, the Constitution would be precisely what it 

 is. 



44 1 have said that these are prohibitions upon 

 the powers of the States. But what does this 

 bill undertake to do ? Does this bill undertake 

 to treat with laws made or enforced by States 

 that deprive any citizen of the United States of 

 any privileges or immunities of a citizen of the 

 United States, or that deny him the equal pro- 

 tection of the laws? Does it do any such thing 

 as that ? Let us see. Mark it, this bill must 

 rest, if it have any constitutional warrant at 

 all, upon these words : ' No State shall make or 

 enforce any law which shall abridge the priv- 

 ileges or immunities of citizens of the United 

 States.' And again: 'Nor shall any State de- 

 prive any person of life, liberty, or property, 

 without due process of law ; nor deny to any 

 person within its jurisdiction the equal protec- 

 tion of the laws.' 



44 * No State shall make or enforce any law 

 which shall abridge the privileges or immuni- 

 ties of citizens of the United States.' Does this 

 bill deal with any such law of a State? No, 

 sir ; it does not profess to do so. It is not 

 aimed at any law of a State. It is aimed 

 against the acts of individuals ; it is aimed 

 against keepers of theatres, keepers of circuses, 

 keepers of hotels, managers of railroads, stage- 

 coaches, and the like. There is not one single 

 sentence in the whole bill which is leveled 

 against any law made or enforced by a State. 

 The Constitution says that no State shall make 

 or enforce any such law. This bill says to a 

 State : ' Although you do not make any such 

 law, although you do not enforce any such law, 

 although your law is directly the opposite, ul- 



