A Just and Lasting Peace: A Documentary History of Reconstruction (52 page)

If we are to be likened in legal view to “unwholesome trades,” to “large and offensive collections of animals,” to “noxious slaughterhouses,” to “the offal and stench which attend on certain manufactures,” let it be avowed. If that is still the doctrine of the political party, to which the gentlemen belong, let it be put upon record. If state laws which deny us the common rights and privileges of other citizens, upon no possible or conceivable ground save one of prejudice, or of “taste” as the gentleman from Texas termed it, and as I suppose the gentlemen will prefer to call it, are to be placed under the protection of a decision which affirms the right of a state to regulate the police power of her great cities, then the decision is in conflict with the bill before us. No man will dare maintain such a doctrine. It is as shocking to the legal mind as it is offensive to the heart and conscience of all who love justice or respect manhood. I am astonished that the gentleman from Kentucky or the gentleman from Georgia should have been so grossly misled as to rise here and assert that the decision of the Supreme Court in these cases was a denial to Congress of the power to legislate against discriminations on account of race, color or previous conditions of servitude because that Court has decided that exclusive privileges conferred for the common protection of the lives and health of the whole community are not in violation of the recent amendments. The only ground upon which the grant of exclusive privileges to a portion of the community is ever defended is that the substantial good of all is promoted; that in truth it is for the welfare of the whole community that certain persons should alone pursue certain occupations. It is not the special benefit conferred on the few that moves the legislature, but the ultimate and real benefit of all, even of those who are denied the right to pursue those specified occupations. Does the gentleman from Kentucky say that my good is promoted when I am excluded from the public inn? Is the health or safety of the community promoted? Doubtless his prejudice is gratified. Doubtless his democratic instincts are pleased; but will he or his able coadjutor say that such exclusion is a lawful exercise of the police power of the state, or that it is not a denial to me of the equal protection of the laws? They will not so say.

But each of these gentlemen quote at some length from the decision of the court to show that the court recognizes a difference between citizenship of the United States and citizenship of the states. That is true and no man here who supports this bill questions or overlooks the difference. There are privileges and immunities which belong to me as a citizen of the United States, and there are other privileges and immunities which belong to me as a citizen of my state. The former are under the protection of the Constitution and laws of the United States, and the latter are under the protection of the constitution and laws of my state. But what of that? Are the rights which I now claim—the right to enjoy the common public conveniences of travel on public highways, of rest and refreshment at public inns, of education in public schools, of burial in public cemeteries—rights which I hold as a citizen of the United States or of my state? Or, to state the question more exactly, is not the denial of such privileges to me a denial to me of the equal protection of the laws? For it is under this clause of the Fourteenth Amendment that we place the present bill, no state shall “deny to any person within its jurisdiction the equal protection of the laws.” No matter, therefore, whether his rights are held under the United States or under his particular state, he is equally protected by this amendment. He is always and everywhere entitled to the equal protection of the laws. All discrimination is forbidden; and while the rights of citizens of a state as such are not defined or conferred by the Constitution of the United States, yet all discrimination, all denial of equality before the law, all denial of equal protection of the laws whether state or national laws, is forbidden.

The distinction between the two kinds of citizenship is clear, and the Supreme Court has clearly pointed out this distinction, but it has nowhere written a word or line which denies to Congress the power to prevent a denial of equality of rights whether those rights exist by virtue of citizenship of the United States or of a state. Let honorable members mark well this distinction. There are rights which are conferred on us by the United States. There are other rights conferred on us by the states of which we are individually the citizens. The Fourteenth Amendment does not forbid a state to deny to all its citizens any of those rights which the state itself has conferred with certain exceptions which are pointed out in the decision which we are examining. What it does forbid is inequality, is discrimination or, to use the words of the amendment itself, is the denial “to any person within its jurisdiction, the equal protection of the laws.” If a state denies to me rights which are common to all her other citizens, she violates this amendment, unless she can show, as was shown in the Slaughterhouse cases, that she does it in the legitimate exercise of her police power. If she abridges the rights of all her citizens equally, unless those rights are specifically guarded by the Constitution of the United States, she does not violate this amendment. This is not to put the rights which I hold by virtue of my citizenship of South Carolina under the protection of the national government; it is not to blot out or overlook in the slightest particular the distinction between rights held under the United States and rights held under the states; but it seeks to secure equality to prevent discrimination, to confer as complete and ample protection on the humblest as on the highest.

The gentleman from Kentucky, in the course of the speech to which I am now replying, made a reference to the state of Massachusetts which betrays again the confusion which exists in his mind on this precise point. He tells us that Massachusetts excludes from the ballot box all who cannot read and write, and points to that fact as the exercise of a right which this bill would abridge or impair. The honorable gentleman from Massachusetts (Mr. Dawes) answered him truly and well, but I submit that he did not make the best reply; why did he not ask the gentleman from Kentucky if Massachusetts had ever discriminated against any of her citizens on account of color or race or previous condition of servitude? When did Massachusetts sully her proud record by placing on her statute book any law which admitted to the ballot the white man and shut out the black man? She has never done it; she will not do it; she cannot do it so long as we have a Supreme Court which reads the constitution of our country with the eyes of justice; nor can Massachusetts or Kentucky deny to any man on account of his race, color or previous condition of servitude, that perfect equality of protection under the laws so long as Congress shall exercise the power to enforce by appropriate legislation the great and unquestionable securities embodied in the Fourteenth Amendment to the Constitution. . . .

Now, sir, recurring to the venerable and distinguished gentleman from Georgia (Mr. Stephens) who has added his remonstrance against the passage of this bill, permit me to say that I share in the feeling of high personal regard for that gentleman which pervades this House. His years, his ability, and his long experience in public affairs entitle him to the measure of consideration which has been accorded to him on this floor. But in this discussion I cannot and will not forget that the welfare and rights of my whole race in this country are involved. When, therefore, the honorable gentleman from Georgia lends his voice and influence to defeat this measure, I do not shrink from saying that it is not from him that the American House of Representatives should take lessons in matters touching human rights or the joint relations of the state and national governments. While the honorable gentleman contented himself with harmless speculations in his study, or in the columns of a newspaper, we might well smile at the impotence of his efforts to turn back the advancing tide of opinion and progress, but, when he comes again upon this national arena, and throws himself with all his power and influence across the path which leads to the full enfranchisement of my race, I meet him only as an adversary; nor shall age or any other consideration restrain me from saying that he now offers this government, which he has done his utmost to destroy, a very poor return for its magnanimous treatment, to come here and seek to continue, by the assertion of doctrines obnoxious to the true principles of our government, the burdens and oppressions which rest upon five millions of his countrymen who never failed to lift their earnest prayers for the success of this government when the gentleman was seeking to break up the union of these states and to blot the American Republic from the galaxy of nations. [Loud applause.]

Sir, it is scarcely twelve years since that gentleman shocked the civilized world by announcing the birth of a government which rested on human slavery as its cornerstone. The progress of events has swept away that pseudo government which rested on greed, pride and tyranny; and the race whom he then ruthlessly spurned and trampled on is here to meet him in debate, and to demand that the rights which are enjoyed by its former oppressors—who vainly sought to overthrow a government which they could not prostitute to the base uses of slavery—shall be accorded to those who even in the darkness of slavery kept their allegiance true to freedom and the Union. Sir, the gentleman from Georgia has learned much since 1861; but he is still a laggard. Let him put away entirely the false and fatal theories which have so greatly marred an otherwise enviable record. Let him accept, in its fullness and beneficence, the great doctrine that American citizenship carries with it every civil and political right which manhood can confer. Let him lend his influence with all his masterly ability, to complete the proud structure of legislation which makes this nation worthy of the great declaration which heralded its birth, and he will have done that which will most nearly redeem his reputation in the eyes of the world and best vindicate the wisdom of that policy which has permitted him to regain his seat upon this floor.

To the diatribe of the gentleman from Virginia (Mr. Harris) who spoke on yesterday, and who so far transcended the limits of decency and propriety as to announce upon this floor that his remarks were addressed to white men alone, I shall have no word of reply. Let him feel that a Negro was not only too magnanimous to smite him in his weakness, but was even charitable enough to grant him the mercy of his silence. I shall, sir, leave to others less charitable the unenviable and fatiguing task of sifting out of that mass of chaff the few grains of sense that may, perchance, deserve notice. Assuring the gentleman that the Negro in this country aims at a higher degree of intellect than that exhibited by him in this debate, I cheerfully commend him to the commiseration of all intelligent men the world over—black men as well as white men.

Sir, equality before the law is now the broad, universal, glorious rule and mandate of the Republic. No state can violate that. Kentucky and Georgia may crowd their statute books with retrograde and barbarous legislation; they may rejoice in the odious eminence of their consistent hostility to all the great steps of human progress which have marked our national history since slavery tore down the Stars and Stripes on Fort Sumter; but, if Congress shall do its duty, if Congress shall enforce the great guarantees which the Supreme Court has declared to be the one pervading purpose of all the recent amendments, then their unwise and unenlightened conduct will fall with the same weight upon the gentlemen from those states who now lend their influence to defeat this bill, as upon the poorest slave who once had no rights which the honorable gentlemen were bound to respect.

But, sir, not only does the decision in the Slaughterhouse cases contain nothing which suggests a doubt of the power of Congress to pass the pending bill, but it contains an express recognition and affirmance of such power. I quote from page 81 of the volume:

 

“Nor shall any State deny to any person within its jurisdiction the equal protection of the laws:”

In the light of the history of these amendments and the pervading purpose of them which we have already discussed, it is not difficult to give a meaning to this clause. The existence of laws in the states where the newly emancipated Negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied by this clause, and by it such laws are forbidden.

If, however, the states did not conform their views to its requirements, then, by the fifth section of the article of amendment, Congress was authorized to enforce it by suitable legislation. We doubt very much whether any action of a state not directed by way of discrimination against the Negroes as a class, or on account of their race, will ever be held to come within the purview of this provision. It is so clearly a provision for that race and that emergency, that a strong case would be necessary for its application to any other. But as it is a state that is to be dealt with, and not alone the validity of its laws, we may safely leave that matter until Congress shall have exercised its power, or some case of state oppression, by denial of equal justice in its courts, shall have claimed a decision at our hands.

 

No language could convey a more complete assertion of the power of Congress over the subject embraced in the present bill than is here expressed. If the states do not conform to the requirements of this clause, if they continue to deny to any person within their jurisdiction the equal protection of the laws or, as the Supreme Court had said, “deny equal justice in its Courts” then Congress is here said to have power to enforce the Constitutional guarantee by appropriate legislation. That is the power which this bill now seeks to put in exercise. It proposes to enforce the Constitutional guarantee against inequality and discrimination by appropriate legislation. It does not seek to confer new rights, nor to place rights conferred by state citizenship under the protection of the United States, but simply to prevent and forbid inequality and discrimination on account of race, color or previous condition of servitude. Never was there a bill more completely within the constitutional power of Congress. Never was there a bill which appealed for support more strongly to that sense of justice and fair play which has been said, and in the main with justice, to be a characteristic of the Anglo-Saxon race. The Constitution warrants it; the Supreme Court sanctions it; justice demands it.