CONGRESS, UNITED STATES. 



161 



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 its laws. 



" Now, what is the effect of this clause of 

 the fourteenth amendment ? It is a prohibi- 

 tion upon the States. It is a command directed 

 against the States in their organization as 

 States. 



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 its laws. 



"Now, sir, I deny that there is any grant of 

 power contained in this article of amendment 

 which confers upon the Federal Government 

 the power to pass a law to regulate the keep- 

 ing of an hotel, or the running of a steamboat, 

 or a railroad train within a State, or to pre- 

 scribe who shall be permitted to enter into a 

 theatre, and what class of children shall go 

 into the common schools of the States. 



" The amendment prohibits the States from 

 doing certain things. No State shall do so and 

 so ; " nor shall any State deprive any person 

 of life, liberty, or property, without due pro- 

 cess of law ; nor deny to any person within its 

 jurisdiction the equal protection of the laws." 

 It is a command to the State. But it does not 

 confer upon Congress any affirmative power to 

 go into the States and regulate the intercourse 

 of citizens of the State one with the other 

 not a particle. And this provision of the 

 amendment that the "Congress shall have 

 power to enforce, by appropriate legislation, 

 the provisions of this article, 1 ' does not confer 

 upon Congress any power to pass this bill. 



" It will be observed that the first clause of 

 the fourteenth article of amendment defines 

 who shall be citizens of the United States and 

 of the States ; and the next clause provides 

 that 



No State shall make or enforce any law which 

 shall abridge the privileges or immunities of citizens 

 of the United States. 



" "We have a decision made by the Supreme 

 Court of the State of Ohio in regard to the 

 common schools of that State, in which this 

 clause of the fourteenth amendment was fully 

 considered and discussed by that court. It is a 

 decision made in 1871 by a full court, composed 

 of five eminent jurists of that State, every one 

 of whom was a leading and prominent member 

 of the Republican party. In that decision they 

 held that this clause of the amendment did 

 not authorize the Government of the United 

 States to control the schools within the State ; 

 that that was a question for the people of the 

 State under their own constitution and laws. 

 The question grew out of the refusal of the 

 board of school directors of one of the sub- 

 districts in the State of Ohio to permit colored 

 children to attend a school with white chil- 

 dren. A suit was prosecuted in the courts of 

 VOL. xv.ll A 



Ohio and carried up to the Supreme Court of 

 the State ; and this question in relation to 

 mixed schools was fully discussed and decided, 

 and the court held, by the unanimous opinion 

 of all the judges, that the State of Ohio had 

 the right to establish separate schools for col- 

 ored children, and that the fourteenth amend- 

 ment to the Constitution of the United States 

 did not impair that right. 



' ; I read from the opinion of the court in 

 the case of The State of Ohio ex rel. William 

 Games vs. John W. McCan and others, 21 Ohio 

 State Reports : 



But it is claimed that the law authorizing the clas- 

 sification in question contravenes the provisions ot 

 the fourteenth amendment to the Constitution of the 

 United States, and is abrogated, therefore, there- 

 by. ... 



It would seem then that these provisions of the 

 amendment contain nothing conflicting with the 

 statute authorizing the classification in question ; nor 

 the decisions heretofore made touching the point in 

 controversy in the case. But the clause relied on in 

 behalf of the plaintiff is that which forbids any State 

 to make or enforce any law which shall abridge the 

 privileges or immunities of citizens of the United 

 States. This involves the inquiry as to what privi- 

 leges and immunities are embraced in the inhibition 

 of this clause. We are not aware that this has been 

 as yet judicially settled. 



The language of the clause, however, taken in con- 

 nection with other provisions of the amendment and 

 of the Constitution of which it forms a part, affords 

 strong reasons for believing that it includes only 

 such privileges and immunities as are derived from 

 or recognized by the Constitution of the United 

 States. A broader interpretation opens into a field 

 of conjecture limitless as the range of speculative 

 theories ; and might work such limitations on the 

 power of the States to manage and regulate their lo- 

 cal institutions! and affairs as were never contem- 

 plated by the amendment. If this construction be 

 correct the clause has no application to this case, for 

 all the privileges of the school system of this State 

 are derived solely from the constitution and laws of 

 the State. 



If the General Assembly should pass a law repeal- 

 ing all laws creating and regulating the system, it 

 cannot be claimed that the fourteenth amendment 

 could be interposed to prevent so grievous an abridg- 

 ment of the privileges of the citizens of the State, 

 for they would thereby be deprived of privileges de- 

 rived from the State, and not of privileges derived 

 from the United States. 



"And further on in the same case the court 

 say: 



We have seen that the law in the case before us 

 works no substantial inequality of school privileges 

 between the children of both classes in the locality 

 of the parties. Under the lawful regulation of equal 

 educational privileges, the children of each class are 

 required to attend the school provided for them, and 

 to which they are assigned by those having the law- 

 ful official control of all. 



The plaintiff then cannot claim that his privileges 

 are abridged on the ground of inequality of school 

 advantages for his children. Nor can he dictate 

 where his children shall be instructed or what teacher 

 shall perform that office, without obtaining privileges 

 not enjoyed by white citizens. Equality of rights 

 does not involve the necessity of educating white 

 and colored persons in the same school any more 

 than it does that of educating children of both sexes 

 in the same school, or that different grades of schol- 

 ars must be kept in the saine school. 



