A Just and Lasting Peace: A Documentary History of Reconstruction (64 page)

The only other case, prior to the adoption of the recent amendments, to which reference will be made, is that of
Dred Scott
v.
Sandford,
19 How. 399[60 U.S., XV., 663]. That case was instituted in a Circuit Court of the United States by Dred Scott, claiming to be a citizen of Missouri, the defendant being a citizen of another State. Its object was to assert the title of himself and family to freedom. The defendant pleaded in abatement that Scott—being of African descent, whose ancestors, of pure African blood, were brought into this country and sold as slaves—was not a
citizen
. The only matter in issue, said the court, was whether the descendants of slaves thus imported and sold, when they should be emancipated, or who were born of parents who had become free before their birth, are citizens of a State in the sense in which the word “citizen” is used in the Constitution of the United States.

In determining that question, the court instituted an inquiry as to who were citizens of the several States at the adoption of the Constitution, and who, at that time, were recognized as the people whose rights and liberties had been violated by the British Government. The result was a declaration by this court, speaking by
Chief Justice
Taney
, that the legislation and histories of the times and the language used in the Declaration of Independence, showed “That neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that instrument;” that “they had for more than a century before been regarded as beings of an inferior race, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit;” that he was “bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it;” and that “this opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without for a moment doubting the correctness of this opinion.”

The judgment of the court was that the words “people of the United States” and “citizens” meant the same thing, both describing “the political body who, according to our republican institutions, form the sovereignty and hold the power and conduct the government through their representatives;” that “they are what we familiarly call the ‘sovereign people,' and every citizen is one of this people and a constituent member of this sovereignty;” but, that the class of persons described in the plea in abatement did not compose a portion of this people, were not “included, and were not intended to be included, under the word ‘citizens' in the Constitution;” that, therefore, they could “claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States;” that, “on the contrary, they were at the time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and whether emancipated or not, yet remained subject to their authority and had no rights or privileges but such as those who held the power, and the government might choose to grant them.”

Such were the relations which formerly existed between the government, whether national or state, and the descendants, whether free or in bondage, or those of African blood, who had been imported into this country and sold as slaves.

The 1st section of the 13th Amendment provides that “Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” Its 2d section declares that “Congress shall have power to enforce this article by appropriate legislation.” This Amendment was followed by the Civil Rights Act of April 9, 1866, which, among other things, provided that “All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” 14 Stat. at L., 27. The power of Congress, in this mode, to elevate the enfranchised race to national citizenship, was maintained by the supporters of the Act of 1866 to be as full and complete as its power, by general statute, to make the children, being of full age, of persons naturalized in this country, citizens of the United States without going through the process of naturalization. The Act of 1866, in this respect, was also likened to that of 1843, in which Congress declared “That the Stockbridge Tribe of Indians, and each and every one of them, shall be deemed to be and are hereby declared to be citizens of the United States to all intents and purposes, and shall be entitled to all the rights, privileges and immunities of such citizens, and shall in all respects be subject to the laws of the United States.” If the Act of 1866 was valid in conferring national citizenship upon all embraced by its terms, then the colored race, enfranchised by the 13th Amendment, became citizens of the United States prior to the adoption of the 14th Amendment. But, in the view which I take of the present case, it is not necessary to examine this question.

The terms of the Thirteenth Amendment are absolute and universal. They embrace every race which then was, or might thereafter be, within the United States. No race, as such, can be excluded from the benefits or rights thereby conferred. Yet, it is historically true that that Amendment was suggested by the condition, in this country, of that race which had been declared, by this court, to have had—according to the opinion entertained by the most civilized portion of the white race, at the time of the adoption of the Constitution—“no rights which the white man was bound to respect,” none of the privileges or immunities secured by that instrument to citizens of the United States. It had reference, in a peculiar sense, to a people which (although the larger part of them were in slavery) had been invited by an Act of Congress to aid in saving from overthrow a government which, theretofore, by all of its departments, had treated them as an inferior race, with no legal rights or privileges except such as the white race might choose to grant them.

These are the circumstances under which the Thirteenth Amendment was proposed for adoption. They are now recalled only that we may better understand what was in the minds of the people when that Amendment was considered, and what were the mischiefs to be remedied and the grievances to be redressed by its adoption,

We have seen that the power of Congress, by legislation, to enforce the master's right to have his slave delivered up on claim was
implied
from the recognition of that right in the National Constitution. But the power conferred by the Thirteenth Amendment does not rest upon implication or inference. Those who framed it were not ignorant of the discussion, covering many years of our country's history, as to the constitutional power of Congress to enact the Fugitive Slave Laws of 1793 and 1850. When, therefore, it was determined, by a change in the fundamental law, to uproot the institution of slavery wherever it existed in the land, and to establish universal freedom, there was a fixed purpose to place the authority of Congress in the premises beyond the possibility of a doubt. Therefore,
ex industria,
power to enforce the Thirteenth Amendment, by appropriate legislation, was expressly granted. Legislation for that purpose, my brethren concede, may be direct and primary. But to what specific ends may it be directed? This court has uniformly held that the National Government has the power, whether expressly given or not, to secure and protect rights conferred or guarantied by the Constitution.
U.S.
v.
Reese,
92 U. S., 214 [XXIII., 563];
Strauder
v.
W. Va.,
100 U. S., 303 [XXV., 664]. That doctrine ought not now to be abandoned when the inquiry is not as to an implied power to protect the master's rights, but what may Congress, under powers expressly granted, do for the protection of freedom and the rights necessarily inhering in a state of freedom.

The 13th Amendment, it is conceded, did something more than to prohibit slavery as an
institution
, resting upon distinctions of race, and upheld by positive law. My brethren admit that it established and decreed universal
civil freedom
throughout the United States. But did the freedom thus established involve nothing more than exemption from actual slavery? Was nothing more intended than to forbid one man from owning another as property? Was it the purpose of the Nation simply to destroy the institution, and then remit the race, theretofore held in bondage, to the several States for such protection, in their civil rights, necessarily growing out of freedom, as those States, in their discretion, might choose to provide? Were the States against whose protest the institution was destroyed, to be left free, so far as national interference was concerned, to make or allow discriminations against that race, as such, in the enjoyment of those fundamental rights which by universal concession, inhere in a state of freedom? Had the 13th Amendment stopped with the sweeping declaration, in its 1st section, against the existence of slavery and involuntary servitude, except for crime, Congress would have had the power, by implication, according to the doctrines of
Prigg
v.
Commonwealth
of Pennsylvania,
repeated in
Strauder
v.
West Virginia,
to protect the freedom established and, consequently, to secure the enjoyment of such civil rights as were fundamental in freedom. That it can exert its authority to that extent is made clear, and was intended to be made clear, by the express grant of power contained in the 2d section of the Amendment.

That there are burdens and disabilities which constitute badges of slavery and servitude, and that the power to enforce by appropriate legislation the 13th Amendment may be exerted by legislation of a direct and primary character, for the eradication, not simply of the institution, but of its badges and incidents, are propositions which ought to be deemed indisputable. They lie at the foundation of the Civil Rights Act of 1866. Whether that Act was authorized by the 13th Amendment alone, without the support which it subsequently received from the 14th Amendment, after the adoption of which it was re-enacted with some additions, my brethren do not consider it necessary to inquire. But I submit, with all respect to them, that its constitutionality is conclusively shown by their opinion. . . .

I am of the opinion that such discrimination practiced by corporations and individuals in the exercise of their public or
quasi
public functions is a badge of servitude, the imposition of which Congress may prevent under its power, by appropriate legislation, to enforce the 13th Amendment; and, consequently, without reference to its enlarged power under the 14th Amendment, the Act of March 1, 1875, is not, in my judgment, repugnant to the Constitution.

It remains now to consider these cases with reference to the power Congress has possessed since the adoption of the 14th Amendment. Much that has been said as to the power of Congress under the 13th Amendment is applicable to this branch of the discussion, and will not be repeated.

Before the adoption of the recent Amendments, it had become, as we have seen, the established doctrine of this court that negroes, whose ancestors had been imported and sold as slaves, could not become citizens of a State, or even of the United States, with the rights and privileges guaranteed to citizens by the national Constitution; further, that one might have all the rights and privileges of a citizen of a State without being a citizen in the sense in which that word was used in the national Constitution, and without being entitled to the privileges and immunities of citizens of the several States. Still further, between the adoption of the 13th Amendment and the proposal by Congress of the 14th Amendment, on June 16, 1866, the statute books of several of the States, as we have seen, had become loaded down with enactments which, under the guise of Apprentice, Vagrant, and contract regulations, sought to keep the colored race in a condition, practically, of servitude. It was openly announced that whatever might be the rights which persons of that race had as freemen, under the guarantees of the national Constitution, they could not become citizens of a State, with the privileges belonging to citizens, except by the consent of such State; consequently, that their civil rights as citizens of the State depended entirely upon State legislation. To meet this new peril to the black race, that the purposes of the nation might not be doubted or defeated, and by way of further enlargement of the power of Congress, the 14th Amendment was proposed for adoption.

Remembering that this court, in the
Slaughterhouse Cases,
declared that the one pervading purpose found in all the recent amendments, lying at the foundation of each and without which none of them would have been suggested, was

 

the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly made freeman and citizen from the oppression of those who had formerly exercised unlimited dominion over him

 

—that each amendment was addressed primarily to the grievances of that race—let us proceed to consider the language of the 14th Amendment.

Its first and fifth sections are in these words:

 

SEC. 1. All persons born 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. 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. . . .