Part 5

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.

12. The 14th Amendment provides that all persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside. This is also an affirmation. It is not a prohibition. The moment that amendment was adopted, it became the duty of the United States to protect the citizens recognized or created by that amendment. We are no longer citizens of the United States because we are citizens of a State, but we are citizens of the United States because we have been born or have been naturalized within the jurisdiction of the United States. It therefore follows, that it is not only the right, but it is the duty, of Congress, to pass all laws necessary for the protection of citizens of the United States.

13. Congress can not shirk this responsibility by leaving citizens of the United States to the care and keeping of the several States.

The recent decision of the Supreme Court cuts, as with a sword, the tie that binds the citizen to the nation. Under the old Constitution, it was not certainly known who were citizens of the United States. There were citizens of the States, and such citizens looked to their several States for protection. The Federal Government had no citizens. Patriotism did not rest on mutual obligation. Under the 14th Amendment, we are all citizens of a common country; and our first duty, our first obligation, our highest allegiance, is not to the State in which we reside, but to the Federal Government. The 14th Amendment tends to destroy State prejudices and lays a foundation for national patriotism.

14. All statutes--all amendments to the Constitution--in derogation of natural rights, should be strictly construed.

15. All statutes and amendments for the preservation of natural rights should be liberally construed. Every court should, by strict construction, narrow the scope of every law that infringes upon any natural human right; and every court should, by construction, give the broadest meaning to every statute or constitutional provision passed or adopted for the preservation of freedom.

16. In construing the 13th, 14th and 15th Amendments, the Supreme Court need not go back to decisions rendered in the days of slavery--when every statute was construed in favor of the sovereignty of the State and the rights of the master. These amendments utterly obliterated such decisions. The Supreme Court should begin with the amendments. It need not look behind them. They are a part of the fundamental organic law of the nation. They were adopted to destroy the old statutes, to obliterate the infamous clauses in the Constitution, and to lay a new foundation for a new nation.

17. Congress has the power to eradicate all forms and incidents of slavery and involuntary servitude, by direct and primary legislation binding upon States and individuals alike. And when citizens are denied the exercise of common rights and privileges--when they are refused admittance to public inns and railway cars, on an equality with white persons--and when such denial and refusal are based upon race and color, such citizens are in a condition of involuntary servitude.

The Supreme Court has failed to take into consideration the intention of the framers of these amendments. It has failed to comprehend the spirit of the age. It has undervalued the accomplishment of the war. It has not grasped in all their height and depth the great amendments to the Constitution and the real object of government. To preserve liberty is the only use for government. There is no other excuse for legislatures, or presidents, or courts, for statutes or decisions. Liberty is not simply a means--it is an end. Take from our history, our literature, our laws, our hearts--that word, and we are naught but moulded clay. Liberty is the one priceless jewel. It includes and holds and is the weal and wealth of life. Liberty is the soil and light and rain--it is the plant and bud and flower and fruit--and in that sacred word lie all the seeds of progress, love and joy.

This decision, in my judgment, is not worthy of the Court by which it was delivered. It has given new life to the serpent of State Sovereignty. It has breathed upon the dying embers of ignorant hate. It has furnished food and drink, breath and blood, to prejudices that were perishing of famine, and in the old case of _Civilization vs. Barbarism_, it has given the defendant a new trial.

From this decision, John M. Harlan had the breadth of brain, the goodness of heart, and the loyalty to logic, to dissent. By the fortress of Liberty, one sentinel remains at his post. For moral courage I have supreme respect, and I admire that intellectual strength that breaks the cords and chains of prejudice and damned custom as though they were but threads woven in a spider's loom. This judge has associated his name with freedom, and he will be remembered as long as men are free.

We are told by the Supreme Court that:

"Slavery cannot exist without law, any more than property and lands and goods can exist without law."

I deny that property exists by virtue of law. I take exactly the opposite ground. It was the fact that man had property in lands and goods, that produced laws for the protection of such property. The Supreme Court has mistaken an effect for a cause. Laws passed for the protection of property, sprang from the possession and ownership of the thing to be protected. When one man enslaves another, it is a violation of all justice--a subversion of the foundation of all law. Statutes passed for the purpose of enabling man to enslave his fellow-man, resulted from a conspiracy entered into by the representatives of brute force. Nothing can be more absurd than to call such a statute, born of such a conspiracy a law. According to the idea of the Supreme Court, man never had property until he had passed a law upon the subject. The first man who gathered leaves upon which to sleep, did not own them, because no law had been passed on the leaf subject. The first man who gathered fruit--the first man who fashioned a club with which to defend himself from wild beasts, according to the Supreme Court, had no property in these things, because no laws had been passed, and no courts had published their decisions.

So the defenders of monarchy have taken the ground that societies were formed by contract--as though at one time men all lived apart, and came together by agreement and formed a government. We might just as well say that the trees got into groves by contract or conspiracy. Man is a social being. By living together there grow out of the relation, certain regulations, certain customs. These at last hardened into what we call law--into what we call forms of government--and people who wish to defend the idea that we got everything from the king, say that our fathers made a contract. Nothing can be more absurd. Men did not agree upon a form of government and then come together; but being together, they made rules for the regulation of conduct. Men did not make some laws and then get some property to fit the laws, but having property they made laws for its protection.

It is hinted by the Supreme Court that this is in some way a question of social equality. It is claimed that social equality cannot be enforced by law. Nobody thinks it can. This is not a question of social equality, but of equal rights. A colored citizen has the same right to ride upon the cars--to be fed and lodged at public inns, and to visit theatres, that I have. Social equality is not involved.

The Federal soldiers who escaped from Libby and Andersonville, and who in swamps, in storm, and darkness, were rescued and fed by the slave, had no scruples about eating with a negro. They were willing to sit beneath the same tree and eat with him the food he brought. The white soldier was then willing to find rest and slumber beneath the negro's roof. Charity has no color. It is neither white nor black. Justice and Patriotism are the same. Even the Confederate soldier was willing to leave his wife and children under the protection of a man whom he was fighting to enslave.

Danger does not draw these nice distinctions as to race or color. Hunger is not proud. Famine is exceedingly democratic in the matter of food. In the moment of peril, prejudices perish. The man fleeing for his life does not have the same ideas about social questions, as he who sits in the Capitol, wrapped in official robes. Position is apt to be supercilious. Power is sometimes cruel. Prosperity is often heartless.

This cry about social equality is born of the spirit of caste--the most fiendish of all things. It is worse than slavery. Slavery is at least justified by avarice--by a desire to get something for nothing--by a desire to live in idleness upon the labor of others--but the spirit of caste is the offspring of natural cruelty and meanness.

Social relations depend upon almost an infinite number of influences and considerations. We have our likes and dislikes. We choose our companions. This is a natural right. You cannot force into my house persons whom I do not want. But there is a difference between a public house and a private house. The one is for the public. The private house is for the family and those they may invite. The landlord invites the entire public, and he must serve those who come if they are fit to be received. A railway is public, not private. It derives its powers and its rights from the State. It takes private land for public purposes. It is incorporated for the good of the public, and the public must be served. The railway, the hotel, and the theatre, have a right to make a distinction between people of good and bad manners--between the clean and the unclean. There are white people who have no right to be in any place except a bath-tub, and there are colored people in the same condition. An unclean white man should not be allowed to force himself into a hotel, or into a railway car--neither should the unclean colored. What I claim is, that in public places, no distinction should be made on account of race or color. The bad black man should be treated like the bad white man, and the good black man like the good white man. Social equality is not contended for--neither between white and white, black and black, nor between white and black.

In all social relations we should have the utmost liberty--but public duties should be discharged and public rights should be recognized, without the slightest discrimination on account of race or color. Riding in the same cars, stopping at the same inns, sitting in the same theatres, no more involve a social question, or social equality, than speaking the same language, reading the same books, hearing the same music, traveling on the same highway, eating the same food, breathing the same air, warming by the same sun, shivering in the same cold, defending the same flag, loving the same country, or living in the same world.

And yet, thousands of people are in deadly fear about social equality. They imagine that riding with colored people is dangerous--that the chance acquaintance may lead to marriage. They wish to be protected from such consequences by law. They dare not trust themselves. They appeal to the Supreme Court for assistance, and wish to be barricaded by a constitutional amendment. They are willing that colored women shall prepare their food--that colored waiters shall bring it to them--willing to ride in the same cars with the porters and to be shown to their seats in theatres by colored ushers--willing to be nursed in sickness by colored servants. They see nothing dangerous--nothing repugnant, in any of these relations,--but the idea of riding in the same car, stopping at the same hotel, fills them with fear--fear for the future of our race. Such people can be described only in the language of Walt Whitman. "They are the immutable, granitic pudding-heads of the world.".

Liberty is not a social question. Civil equality is not social equality. We are equal only in rights. No two persons are of equal weight, or height. There are no two leaves in all the forests of the earth alike--no two blades of grass--no two grains of sand--no two hairs. No two any-things in the physical world are precisely alike. Neither mental nor physical equality can be created by law, but law recognizes the fact that all men have been clothed with equal rights by Nature, the mother of us all.

The man who hates the black man because he is black, has the same spirit as he who hates the poor man because he is poor. It is the spirit of caste. The proud useless despises the honest useful. The parasite idleness scorns the great oak of labor on which it feeds, and that lifts it to the light.

I am the inferior of any man whose rights I trample under foot. Men are not superior by reason of the accidents of race or color. They are superior who have the best heart--the best brain. Superiority is born of honesty, of virtue, of charity, and above all, of the love of liberty. The superior man is the providence of the inferior. He is eyes for the blind, strength for the weak, and a shield for the defenceless. He stands erect by bending above the fallen. He rises by lifting others.

In this country all rights must be preserved, all wrongs redressed, through the ballot. The colored man has in his possession in his care, a part of the sovereign power of the Republic. At the ballot-box he is the equal of judges and senators, and presidents, and his vote, when counted, is the equal of any other. He must use this sovereign power for his own protection, and for the preservation of his children. The ballot is his sword and shield. It is his political providence. It is the rock on which he stands, the column against which he leans. He should vote for no man who dees not believe in equal rights for all--in the same privileges and immunities for all citizens, irrespective of race or color.

He should not be misled by party cries, or by vague promises in political platforms. He should vote for the men, for the party, that will protect him; for congressmen who believe in liberty, for judges who worship justice, whose brains are not tangled by technicalities, and whose hearts are not petrified by precedents; and for presidents who will protect the blackest citizen from the tyranny of the whitest State. As you cannot trust the word of some white people, and as some black people do not always tell the truth, you must compel all candidates to put their principle' in black and white.

Of one thing you can rest assured: The best white people are your friends. The humane, the civilized, the just, the most intelligent, the grandest, are on your side. The sympathies of the noblest are with you. Your enemies are also the enemies of liberty, of progress and of justice. The white men who make the white race honorable believe in equal rights for you. The noblest living are, the noblest dead were, your friends. I ask you to stand with your friends.

Do not hold the Republican party responsible for this decision, unless the Republican party endorses it. Had the question been submitted to that party, it would have been decided exactly the other way--at least a hundred to one. That party gave you the 13th, 14th and 15th Amendments. They were given in good faith. These amendments put you on a constitutional and political equality with white men. That they have been narrowed in their application by the Supreme Court, is not the fault of the Republican party. Let us wait and see what the Republican party will do. That party has a strange history, and in that history is a mingling of cowardice and courage. The army of progress always becomes fearful after victory, and courageous after defeat. It has been the custom for principle to apologize to prejudice. The Proclamation of Emancipation gave liberty only to slaves beyond our lines--those beneath our flag were left to wear their chains. We said to the Southern States: "Lay down your arms, and you shall keep your slaves." We tried to buy peace at the expense of the negro.