CONGRESS, UNITED STATES. 



189 



of the fourteenth amendment to the Constitu- 

 tion : 



" The prohibitions of the fourteenth amendment are 

 directed to the States, and they are to a degree re- 

 strictions of State power. It is these which Congress 

 is empowered to enforce, and to force against State 

 action, however put forth, whether that action be ex- 

 ecutive, legislative, or judicial. Such enforcement is 

 no invasion of State sovereignty. No law can be which 

 the people of the States have, by the Constitution of 

 the United States, empowered Congress to enact. This 

 extent of the powers of the General Government is 

 overlooked when it is said, as it has been in this case, 

 that the act of March 1, 1875, interferes with State 

 rights. It is said the selection of jurors for her courts 

 and the administration of her laws belong to each 

 State ; that they are her rights. This is true in the 

 general ; but in exercising her rights a State can not 

 disregard the limitations which the Federal Constitu- 

 tion has applied to her power. Her rights do not 

 reach to that extent. Nor can she deny to the Gen- 

 eral Government the right to exercise all its granted 

 powers, though they niay interfere with the lull en- 

 joyment of rights she would have if those powers had 

 not been thus granted. Indeed, every addition of 

 power to the General Government involves a corre- 

 sponding diminution of the governmental powers of 

 the States. It is carved out of them. 



" We have said the prohibitions of the fourteenth 

 amendment are addressed to the States. They are : 

 ' No State shall make or enforce any law which shall 

 abridge the privileges or immunities of citizens of the 

 United States; . . . nor deny to any person with- 

 in its jurisdiction the equal protection of the laws.' 



" And now the court, in passing upon the 

 exact phraseology used in section 2 of the four- 

 teenth amendment, says: 



" A State acts by its legislative, its executive, or its 

 judicial authorities. It can act in no other way. The 

 constitutional provision, therefore, must mean that no 

 agency of the State, or of the officers or agents by 

 whom its powers are exerted, shall deny to any per- 

 son within its jurisdiction the equal protection of the 

 laws. Whoever by virtue of public position under a 

 State government deprives another of property, life, 

 or liberty, without due process of law, or denies or 

 takes away the equal protection of the laws, violates 

 the constitutional inhibition, and as he acts in the name 

 and for the State, and is clothed with the State's 

 power, his act is that of the State. This must be so, or 

 the constitutional prohibition has no meaning. Then 

 the State has clothed one of its agents with power to 

 annul or to evade it. 



" But the constitutional amendment was ordained 

 for a purpose. It was to secure equal rights to all per- 

 sons ; and, to insure to all persons the enjoyment of 

 such rights, power was given to Congress to enforce 

 its provisions by appropriate legislation. Such legis- 

 lation must act upon persons, not upon the abstract 

 thing denominated a State, but upon the persons who 

 are the agents of the State in the denial of the rights 

 which were intended to be secured. 



" In 1876, in the fierce struggle for political 

 power in this country, it was supposed that 

 every State in the Union had polled its full 

 vote for President in that year. New York, 

 my own State, cast upward of a million in that 

 election, the largest vote ever cast up to the 

 election of 1880. Four years pass away. "We 

 have another presidential election in 1880, and 

 it is fair to assume that the lapse of four years 

 would have brought increased numbers of 

 voters in all of the States of the Union, but it 

 will be found that in certain States the vote 

 cast in 1880 for presidential electors is con- 



siderably less than that cast in 1876. I have 

 stated as a reason for my opposition to the pas- 

 sage of any apportionment bill by this Con- 

 gress that every one of these bills for the ap- 

 portionment of Representatives is based upon 

 numbers without taking into the count voters. 

 Under the Constitution as amended, I regard 

 voters as well as numbers a basis for an appor- 

 tionment bill, where citizens are denied the 

 right to vote by State action. I am not speak- 

 ing in a partisan sense ; but it is alleged and 

 believed that in some parts of the Union, in 

 some of the States in this Union or in some 

 sections of the country, there exist and have 

 existed fraud, intimidation, and violence, by 

 which means a large number of voters have 

 been denied the right of voting in elections in 

 the past. I do not assert, sir, whether that is 

 so or not. The allegation has been made, and 

 it is believed in a portion of this Union that 

 this condition of affairs absolutely exists. 



" I am in favor of having one of the commit- 

 tee of this Congress, or a select committee, if 

 you please, raised, which shall investigate the 

 whole question of disqualification, either edu- 

 cational or property, in all these States of the 

 Union where constitutional prohibitions against 

 the right of suffrage are alleged to exist ; and 

 I would have this committee look into this 

 whole question and report to Congress what 

 qualifications or disqualifications exist in all 

 sections of the country to deprive citizens of 

 the right to vote." 



Mr. Thompson, of Kentucky : " Mr. Speaker, 

 I do not see why we should go into this mat- 

 ter at all. It is a dangerous subject, to say 

 the least of it, when we see what progress has 

 been made in this direction by the legislation 

 of Congress during the last forty years. The 

 year 1842 was the first time that Congress ever 

 undertook to interfere with the regulations of 

 the States on this subject. Then it was that 

 the moiety system was first adopted, giving to 

 each State on even divisions so many Repre- 

 sentatives, and to each State having a fraction 

 greater than one half an additional member. 

 At that time another change was introduced. 

 Theretofore, whenever it was necessary to ap- 

 portion representation, the ratio was first found, 

 the populations of the States divided by that 

 ratio, and whatever number of members they 

 might obtain by that division was given to 

 them. Then for the first time a limit was fixed 

 upon the membership of this House, the num- 

 ber being fixed at two hundred and forty-one, 

 and the ratio being adopted to produce that 

 result. Theretofore a ratio was determined, 

 and the number of members was left to be 

 what it might under the ratio determined. A 

 new system was devised, carrying with it the 

 moiety system, or some system allowing frac- 

 tional representation. Then for the first time 

 what is now known as the district system was 

 adopted. How have we progressed in our leg- 

 islation on this subject? We have gone on 

 until Congress has assumed almost entire con- 



