162 



CONGRESS, UNITED STATES. 



Any classification which preserves substantially 

 equal school advantages is not prohibited by either 

 State or Federal Constitution, nor would it contra- 

 vene the provisions of either. There is then no 

 ground upon which the plaintiff can claim his rights 

 under the fourteenth amendment have been in- 

 fringed. 



" This is a case which was decided by a Re- 

 publican court of the State of Ohio, in which 

 decision it was held that it was no infringement 

 of the fourteenth article of amendment to the 

 Constitution to prohibit colored children from 

 attending the same school with white children. 



" But since that time we have had a decision 

 made by the Supreme Court of the United 

 States, which I believe settles the question of 

 power involved in this bill. It. was a decision 

 rendered in the celebrated Slaughter-house 

 cases at the December term, 1872, to which I 

 will call the attention of the House. It in- 

 volved directly the examination of the powers 

 which were granted to Congress and of the im- 

 munities and privileges which were conferred 

 by the fourteenth article of amendment to the 

 Constitution. The Supreme Court laid down 

 distinctly, and clearly, the difference between 

 the rights and immunities of citizens of the 

 United States, and the rights and immunities 

 of citizens of the several States. The court say 

 in that opinion : 



It is quite clear, then, that there is a citizenship of 

 the United States and a citizenship of a State which 

 are distinct from each other^ and which depend upon 

 different characteristics or circumstances in the indi- 

 vidual. 



We think these distinctions and its explicit recog- 

 nition in this amendment of great weight in this 

 argument, because the next paragraph of this same 

 section, which is the only one mainly relied on by 

 the plaintiffs in error, speaks only of privileges 

 and immunities of citizens of the United States, and 

 does not speak of those of citizens of the several 

 States. The argument, however, in favor of plain- 

 tiffs rests wholly on the assumption that the citizen- 

 ship is the same and the privileges and immunities 

 guaranteed by the clause are the same. 



The language is, " No State shall make or enforce 

 any law which shall abridge the privileges or immu- 

 nities of citizens of the United States." It is a little 

 remarkable, if this clause was intended as a protec- 

 tion to the citizen of a State against the _ legislative 

 power of his own State, that the word citizen of the 

 State should be left out when it is so carefully used, 

 and used in contradistinction to citizens of the Unit- 

 ed States, in the very sentence which precedes it. 

 It is too clear for argument that the change in phra- 

 seology was adopted understandingly and with a 

 purpose. 



Of the privileges and immunities of the citizen of 

 the United States and of the privileges and immuni- 

 ties of the citizen of the State, and what they re- 

 spectively are, we will presently consider ; but we 

 wish to state here that it is only the former which 

 are placed by this clause under the protection of the 

 Federal Constitution, and that the latter, whatever 

 they may be, are not intended to have any additional 

 protection by this paragraph of the amendment. 



If, then, there is a difference between the privi- 

 leges and immunities belonging to a citizen of the 

 United States as such, and those belonging to the 

 citizen of the State as such, the latter 



" That is, the rights and immunities of citi- 

 zens of a State 



must rest for their security and protection where 

 they have heretofore rested, for they are not em- 

 braced by this paragraph of the amendment. 



u Here is the clear and distinct statement by 

 the court in this case that the privileges and 

 immunities of citizens of a State must rest 

 where they heretofore haye rested, under the 

 protection of the State. And further on in 

 this decision the court vindicates what it had 

 already said in regard to the distinction be- 

 tween the privileges and immunities belonging 

 to the citizens of the,United States, and privi- 

 leges and immunities belonging to citizens of 

 the State as such. The court say : 



It would be the vainest show of learning to at- 

 tempt to prove by citations of authority that up to 

 the adoption of the recent amendments no claim or 

 pretense was set up that those rights depended on 

 the Federal Government for their existence or pro- 

 tection, beyond the very few express limitations 

 which the Federal Constitution imposed upon the 

 States such, for instance, as the prohibition against 

 ex post facto laws, bills of attainder, and laws im- 

 pairing the obligations of contracts. But with the 

 exception of these and a few other restrictions, the 

 entire domain of the privileges and immunities of 

 citizens of the States, as above defined, lay within 

 the constitutional and legislative power of the States 

 and without that of the Federal Government. Was 

 it the purpose of the fourteenth amendment, by the 

 simple declaration that no State should make or en- 

 force any law which shall abridge the privileges and 

 immunities of citizens of the United States, to trans- 

 fer the security and protection of all the civil rights 

 which we have mentioned from the States to the 

 Federal Government? And where it is declared 

 that Congress shall have the power to enforce that 

 article, was it intended to bring within the power of 

 Congress the entire domain of civil rights heretofore 

 belonging exclusively to the States ? 



All this and more must follow if the proposition 

 of the plaintiff in error be sound. For not only are 

 these rights subject to the control of Congress when- 

 ever in its discretion any of them are supposed to 

 be abridged by State legislation, but that body may 

 also pass laws in advance, limiting and restricting 

 the exercise of legislative power by the States, in 

 their most ordinary and usual functions, as in its 

 judgment it may think proper on all such subjects. 

 Ana still further, such a construction followed by 

 the reversal of the judgments of the Supreme Court 

 of Louisiana in these cases would constitute this 

 court a perpetual censor upon all legislation of the 

 States, on the civil rights of their own citizens, with 

 authority to nullify such as it did not approve as 

 consistent with those rights, as they existed at the 

 time of the adoption of this amendment. The argu- 

 ment we admit is not always the most conclusive 

 which is drawn from the consequences urged against 

 the adoption of the particular construction of an in- 

 strument. But when, as in the case before us, these 

 consequences are so serious, so far-reaching, and 

 pervading, so great a departure from the structure 

 and spirit of our institutions ; when the effect is to 

 fetter and degrade the State governments by subjecting 

 them to the control of Congress in the exercise of pow- 

 ers heretofore universally conceded to them of the most 

 ordinary and fundamental character, when in fact it 

 radically changes the whoU theory rf the relations of 

 the State and Federal Governments to each other, and 

 of both these governments to the people, the argument 

 has a force that is irresistible in the absence of language 

 which expresses such a purpose too clearly to admit of 

 doubt. 



" The court goes on further to say : 

 We are convinced that no such results were in- 



