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been based upon a confused notion that the XIII, XIV, and XV Amendments in some way altered and extended the general scope of Federal powers, even to the point of effecting this fundamental change. But an unbroken line of Federal decisions has denied that such a change in the organic structure of the Federal government was either contemplated or effected by the amendments, and points out that the legislation which Congress is authorized to enact under the amendments is not general legislation upon the rights of citizens, but only certain corrective legislation, if such be necessary, to counteract State legislation prohibited by the amendments upon special subjects named in the amendments.
When we come to examine the multitudinous decisions of the Supreme Court on questions which have arisen under the amendments it will be seen that the cases have for the most part not originated in any alleged act of the Federal government invading the sphere of State action, but upon the contention made by citizens of the States that Federal powers, as enlarged by the amendments, are much more far-reaching and restrictive upon State powers than the Federal courts themselves have been willing to admit. The decisions rendered by the Supreme Court have in an overwhelming majority of cases been against the broad effect of the constitutional amendments as authorizing extended Federal powers, or as restricting State powers, contended for by the citizens; and they declare unanimously the continuing power of the States, notwithstanding the amendments, to regulate exclusively the rights, privileges and immunities of citizens upon the matters in issue, subject only to the particular limitations named in the amendments.
22. RIGHTS OF CITIZENSHIP UNDER THE FOURTEENTH
The following extracts from recent decisions by the Supreme Court of the United States will serve to amplify the statement made in the preceding selection that the effect of the War Amendments was not to destroy the control exercised by the States over the great body of civil rights. In the famous Civil Rights cases decided in 1883, in which the Civil Rights Act of 1875 was held unconstitutional, the court said :
Until some State law has been passed, or some State action through its officers or agents has been taken, adverse to the rights of citizens sought to be protected by the Fourteenth Amendment, no legislation of the United States under said amendment nor any proceeding under such legislation, can be called into activity; for the prohibitions of the amendment are against States laws and acts done under State authority. Of course, legislation may, and should be, provided in advance to meet the exigency when it arises; but it should be adapted to the mischief and wrong which the amendment was intended to provide against; and that is, State laws, or State action of some kind, adverse to the rights of the citizen secured by the amendment. Such legislation cannot properly cover the whole domain of rights appertaining to life, liberty and property, defining them and providing for their vindication. That would be to establish a code of municipal law regulative of all private rights between man and man in society. It would be to make Congress take the place of the State legislatures and to supersede them. It is absurd to affirm that, because the rights of life, liberty and property (which include all civil rights that men have), are by the amendment sought to be protected against invasion on the part of the State without due process of law, Congress may therefore provide due process of law for their vindication in every case; and that, because the denial by a State to any persons, of the equal protection of the laws, is prohibited by the amendment, therefore Congress may establish laws for their equal protection. In fine, the legislation which Congress is authorized to adopt in this behalf is not general legislation upon the rights of the citizens, but corrective legislation, that is, such as may be necessary and proper for counteracting such laws as the States may adopt or enforce, and which, by the amendment, they are prohibited from making or enforcing, or such acts and proceedings as the States may commit or take, and which, by the amendment, they are prohibited from committing or taking. It is not necessary for us to state, if we could, what legislation would be proper for Congress to adopt. It is sufficient for us to examine whether the law in question is of that character.
And again, in the Slaughter House cases in which the authority of the United States was invoked to prevent the Legislature of Louisiana from making certain regulations to govern the slaughtering business in New Orleans, the Court held that no such authority had been conferred upon the United States by the amendments in question: (1873].
It would be the vainest show of learning to attempt to prove by citation 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 protection, beyond the very few express limitations which the Federal Constitution imposed upon the State such, for instance, as the prohibition against ex post facto laws, bills of attainder, and laws impairing the obligation 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 enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer 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 plaintiffs in error be sound. For not only are these rights subject to the control of Congress whenever 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. And 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 argument, we admit, is not always the most conclusive which is drawn from the consequences urged against the adoption of a particular construction of an, instrument. 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 powers, heretofore universally conceded to them of the most ordinary and fundamental character; when in fact it radically changes the whole theory of the relations of the State and Federal government 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.
We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.
Having shown that the privileges and immunities relied on in the argument are those which belong to citizens of the States as such, and that they are left to the State goverments for security and protection, and not by this article placed under the special care of the Federal government, we may hold ourselves excused from defining the privileges and immunities of citizens of the United States which no State
can abridge, until some case involving those privileges may make it necessary to do so.
But lest it should be said that no such privileges and immunities are to be found if those we have been considering are excluded, we venture to suggest some which owe their existence to the Federal government, its National character, its Constitution, or its laws.
One of these is well described in the case of Crandall v. Nevada. It is said to be the right of the citizen of this great country, protected by implied guarantees of its Constitution, “to come to the seat of government to assert any claim he may have upon that government, to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions. He has the right of free access to its seaports, through which all operations of foreign commerce are conducted, to the sub-treasuries, land offices, and courts of justices in the several States." And quoting from the language of Chief Justice Taney in another case, it is said “that for all the great purposes for which the Federal government was established, we are one people, with one common country; we are all citizens of the United States,' and it is as such citizens that their rights are supported in this court in Crandall v. Nevada.
Another privilege of a citizen of the United States is to demand the care and protection of the Federal government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government. Of this there can be no doubt, nor that the right depends upon his character as a citizen of the United States. The right to peaceably assemble and petition for redress of grievances, the privileges of the writ of habeas corpus, are rights of the citizen guaranteed by the Federal Constitution. The right to use the navigable waters of the United States, however they may penetrate the territory of the several States, all rights secured to our citizens by treaties with foreign nations, are dependent upon citizenship of the United States, and not