"Congress must possess the choice of means, and must be empowered to use any means which are in fact conducive to the exercise of a power granted by the Constitution." U. S. vs. Fisher, 2 Cranch, 358.
Again:
"The power of Congress to pass laws to enforce rights conferred by the Constitution is not limited to the express powers of legislation enumerated in the Constitution. The powers which are necessary and proper as means to carry into effect rights expressly given and duties expressly enjoined, are always implied. The end being given, the means to accomplish it are given also." _Prigs vs. The Commonwealth_, 16 Peters, 539.
This decision was delivered by Justice Story, and is the same one already referred to, in which liberty was taken from a human being by judicial construction. It was held in that case that the 2nd Section of the 4th Article of the Constitution, to which I have already called attention, contained "a positive and unqualified recognition of the right" of the owner in a slave, unaffected by any State law or regulation. If this is so, then I assert that the 13th Amendment "contains a positive and unqualified recognition of the right" of every human being to liberty; that the 14th Amendment "contains a positive and unqualified recognition of the right" to citizenship; and that the 15th Amendment "contains a positive and unqualified recognition of the right"
to vote.
Justice Story held in that case that:
"Under and by virtue of that section of the Constitution the owner of a slave was clothed with entire authority in every State in the nation to seize and recapture his slave."
He also held that:
"In that sense, and to that extent, that clause of the Constitution might properly be said to execute itself, and to require no aid from legislation--State or National."
"But," says Justice Story:
"The clause of the Constitution does not stop there, but says that he, the slave, shall be delivered up on claim of the party to whom such service or labor may be due."
And he holds that:
"Under that clause of the section Congress became clothed with the appropriate authority to legislate for its enforcement."
Now let us look at the 13th and 14th Amendments in the light of that decision.
First. Liberty and citizenship were given the colored people by this amendment. And Justice Story tells us that:
"The power of Congress to enforce rights conferred by the Constitution is not limited to the express powers of legislation enumerated in the Constitution, but the powers which are necessary to protect such rights are always implied."
Language cannot be stronger; words cannot be clearer. But now this decision has been reversed by the Supreme Court, and Congress is left powerless to protect rights conferred by the Constitution. It has been shorn of implied powers. It has duties to perform, and no power to act.
It has rights to protect, but cannot choose the means. It is entangled in its own strength. It is a prisoner in the bastile of judicial construction.
Let us go further. Justice Story tells us that:
"The words 'but shall be given up on the claim of the person to whom such labor or service may be due,' clothes Congress with the appropriate authority to legislate for its enforcement."
In the light of this remark, let us look at the 14th Amendment:
"All persons bom or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."
To which are added these words:
"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 the laws."
Now, if the words: "But shall be delivered up on claim of the party to whom such service or labor may be due," clothes Congress with power to legislate upon the entire subject, then I ask if the words in the 14th Amendment declaring that "no law shall be made by any State, or enforced, which shall abridge the privileges or immunities of citizens of the United States; and that no State shall 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 the laws," does not clothe Congress with the power to legislate upon the entire subject?
In the two cases there is only this difference: The first decision was made in the interest of human slavery--made to protect property in man; and the second decision ought to have been made for exactly the opposite purpose. Under the first decision, Congress had the right to select the means--but now that is denied. And yet it was decided in _M'Cauley vs.
The State_, 4 Wheaton, 316, that:
"When the Government has a right to do an act, and has imposed on it the duty of performing an act, then it must, according to the dictates of reason, be allowed to select the means."
Again:
"The Government has the right to employ freely every means not prohibited, for the fulfillment of its acknowledged duties."
_The Legal Tender Cases_--12 Wallace, 457.
It will thus be seen that Congress has the undoubted right to make all laws necessary for the exercise of all the powers vested in it by the Constitution. When the Constitution imposes a duty upon Congress, it grants the necessary means. Congress certainly, then, has the right to pass all necessary laws for the enforcement of the 13th, 14th and 15th Amendments. Any legislation is "appropriate" that is calculated to accomplish the end sought and that is not repugnant to the Constitution.
Within these limits Congress has the sovereign power of choice. No better definition of "appropriate legislation" has been given than that by the Supreme Court of California, in the case of The People vs.
Washington, 38 California, 658:
"Legislation which practically tends to facilitate the securing to all, through the aid of the judicial and executive departments of the Government, the full enjoyment of personal freedom, is appropriate."
The Supreme Court despairingly asks:
"If this legislation is appropriate for enforcing the prohibitions of the Amendment, it is difficult to see where it is to stop. Why may not Congress, with equal show of authority, enact a code of laws for the enforcement and vindication of all rights of life, liberty and property?"
My answer is: The legislation will stop when and where the discriminations on account of race, color or previous condition of servitude, stop. Whenever an immunity or privilege of a citizen of the United States is trodden down by the State, or by an individual, under the circumstances mentioned in the Civil Rights Act--that is to say, on account of race, color, or previous condition of servitude--then the Federal Government must interfere. The Government must defend the immunities and privileges of its citizens, not only from State invasion, but from individual invaders, when that invasion is based upon the distinction of race, color, or previous condition of servitude. The Government has taken upon itself that duty. This duty can be discharged by a law making a uniform rule, obligatory not only upon States, but upon individuals. All this will stop when the discriminations stop.
After such examination of the authorities as I have been able to make, I lay down the following propositions, namely:
1. The sovereignty of a State extends only to that which exists by its own authority.
2. The powers of the General Government were not conferred by the people of a single State; they were given by the people of the United States; and the laws of the United States, in pursuance of the Constitution, are supreme over the entire Republic.
3. The Constitution of the United States is the supreme law of each State.
4. The United States is a Government whose authority extends over the whole territory of the Union, acting upon all the States and upon all the people of all the States.
5. No State can exclude the Federal Government from the exercise of any authority conferred upon it by the Constitution, or withhold from it, for a moment, the cognizance of any subject which that instrument has committed to it.
6. It is the duty of Congress to enforce the Constitution, and it has been clothed with power to make all laws necessary and proper for carrying into execution all the powers vested by the Constitution in the General Government.
7. It is the duty of the Government to protect every citizen of the United States in all his rights, everywhere, without regard to race, color, or previous condition of servitude; and this the Government has the right to do by direct legislation.
8. Every citizen, when his privileges and immunities are invaded by the legislature of a State, has the right of appeal from such. State to the Supreme Court of the nation.
9. When a State fails to pass any law protecting a citizen from discrimination on account of race or color, and fails, in fact, to protect such citizen, then such citizen has the right to find redress in the Federal Courts.
10. Whenever, in the Constitution, a State is prohibited from doing anything that in the nature of the thing can be done by any citizen of that State, then the word "State" embraces and includes all the people of a State.
11. The 13th Amendment declares that neither slavery nor involuntary servitude shall exist within the jurisdiction of the United States.
This is not a mere negation--it is a splendid affirmation. The duty is imposed upon the General Government by that amendment to see to it that neither slavery nor involuntary servitude shall exist.
It is a question absolutely within the power of the Federal Government, and the Federal Government is clothed with power to make all necessary laws to enforce that amendment against States and persons.