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exercise of its acknowledged powers. In the case which held the white slave law constitutional, Hoke v. The United States (227 U.S. pp. 308 and 309), the court said:
" " While our dual form of Government has its perplexities, State and Nation having different spheres of jurisdiction, we are one people and the powers reserved to the States and those conferred on the Nation are adapted to be exercised, whether independently or concurrently, to promote the general welfare, material and moral.
• • The White Slave Traffic Act is a legal exercise of the power of Congress under the commerce clause of the Constitution and does not abridge the privileges or immunities of citizens of the States or interfere with the reserved powers of the States, especially those in regard to regulation of immoralities of persons within their several jurisdictions.'
“ In Hoke v. United States (227 U.S. 308, 323), speaking expressly of the power of Congress over interstate transportation, it was said 'the power is complete in itself, and that Congress, as an incident to it, may adopt not only means necessary but convenient to its exercise, and the means may have the quality of police regulations.'
"And in Wilson v. United States (232 U.S. 563, 567), speaking of the white slave law, which was held constitutional, the court said:
“As has already been decided, it has the quality of a police regulation, although enacted in the exercise of the power to regulate interstate commerce.'
“ In seven cases of Eckman's Alterative v. United States (239 U.S. 510, 515) it was said:
“Congress is not to be denied the exercise of its constitutional authority over interstate commerce, and its power to adopt not only means necessary but convenient to its exercise, because these means may have the quality of police regulations.'
"And an even more direct statement to this effect is :
" . Congress may establish police regulations as well as the States, confining their operations to the subjects over which it is given control by the Constitution;
Gloucester Ferry Co. v. Pennsylvania (114 U.S. 196, 215), citing Cooley's Constitutional Limitations, 732.'
“ In other words, when necessary for the proper exertion of its express powers Congress may use exactly the same means which the State may use for the exertion of its own powers. This is no new doctrine. In Gibbons v. Ogden, supra, it was said :
*. It is obvious that the Government of the Union, in the exercise of its express powers, that, for example, of regulating commerce with foreign nations and among the States, may use means that may also be employed by a State in the exercise of its acknowledged powers; that, for example, of regulating commerce within the State.'
“And again, in the very recent case, Hamilton v. Kentucky Distilleries Co. (251 U.S. 146, 156) (decided December 1919), inolving the constitutionality of the war-time prohibition act, Mr. Justice Brandeis, speaking for the Court, stated the principle thus:
" That the United States lacks the police power, and that this was reserved to the States by the tenth amendment, is true. But it is none the less true that when the United States exerts any of the powers conferred upon it by the Constitution, no valid objection can be based upon the fact that such exercise may be attended by the same incidents which attend the exercise by a State of its police power, or that it may tend to accomplish a similar purpose.'
“We had a gomewhat hazy comprehension of the police powers of the State and the corresponding rights of the Federal Government. This line of cases holds that there is a Federal police power. Now, if there is a Federal police power, it must be by virtue of some power conferred on the Federal Government by our Constitution. It was conferred in the white-slave cases by the commerce clause. I assume, therefore, in this argument that there is such a Federal police power, a concomitant, as it were, to preserve law and order, and to see that the laws are equally enforced, and to see that no man is denied ar deprived of the common right to enjoy life, liberty, and property, and that such rights are conferred upon the Federal Government by the fourteenth amendment to the United States Constitution.
"A case which has caused some discussion is the case of James v. Boroman (190 U.S. 127). I refer to this case, tirst, because it may be cited in contradie tion of the underlying principles of the statement I have made. This case involved the fifteenth amendment to the t'nited States Constitution. It grew out of an indictinent in the State of Kentucky, based upon sertion 5507 of the Revised Statutes of the l'nited States, which sought to panish sarone who attempted to interfere with a person going to or from the polls, or intimidate those who sought to exercise their prerogatire to rate as they saw it. The Supreme Court held that the indietment was improvidently conceived and sid that the fifteenth amendment, which reads: •The right of citizens of the Cnited States to vote shall not be denied or abridged by the Cnited States or by any State on account of race, color, or previous condition of servitude", was an amendment which prohibited the State bat did not reach the individual. Such was the underlying principle which controlled and which differentiates this case from the other cases Mr. Justice Brewer wrote the opinion and, in addition to holding that the fifteenth amendment was a curb upon the Federal and State Governments, expressly said that it did not in any sense relate to individuals. He recognized the undoubted existence of the police power of the State and, in the last lines of the decision, remarked that the act was unconstitutional because it was too broad in its terms:
“ Congress, he concluded, has no power to punish bribery at all elections. The limits of its power are in respect to elections in which the Natiou is directly interested, or in wbich some mandate of the National Constitution is disobeyed. and courts are not at liberty to take a criminal statute, broad and comprehensive in its terms, and in these terms berond the power of Congress, and change it to fix some particular transaction for which Congress might have legislated if it had seen fit.
** The court recognized the rule, with which we are all familiar, that while a statute may be constitutional in some provisions and unconstitutional in others the courts will hold it constitutional if they can separate, without destroying the purpose of the statute, the unconstitutional from the constitutional: or if you prefer, that where a statute cannot be separated or resolved into its constituent parts without committing judicial legislation, the courts will not, under such circumstances, attempt to hold the statute constitutional, but will declare it unconstitutional and deny the application of a comity rule of the judiciary. which strives to sustain legislation wherever possible. This case, as I say, ree ognized that where an inhabitant of a State attempted to interfere with the pxercise of a general right which did not relate to a Federal election, that he was not guilty of violating this act. But I must draw this conclusion and emphasize it: I do not think the court attempted to decide that if the same acts so attempted under the broad general terms of the law, which the court felt constrained to hold as beyond the authoritz of Congress, had been attempted or accomplished in a specific general Federal election, that such acts would not have been a violation of the fifteenth amendment to the l'nited States (onstitution, obviously a law meeting the facts of such a situation would be constitutional. In Er parte Virginia (100 U.S. 339, 346), construing the provisions of the fourteenth amendment, it was said:
** They have reference to actions of the political body denominated a State, by whatever instruments or in whatever modes that action may be taken. A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted. shall deny to any person within its jurisdiction the equal protection of the laws.'
" In view of that interpretation and merely for the purposes of convenience and acuracy, permit me to refer expressly to the amendment:
** No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the l'vited States; nor shall any State deprire 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.'
“ Justice Brewer in the Bowman case, referring to the leading case of Er parte Virginia, supra, gives to the fourteenth amendment, clearly and unequivocally, this interpretation: That no State shall deprive any person-not as a mere abstract entity, but through its legislative, its executive, or its judicial functions--of life, liberty, or property. In other words, the fourteenth amendment to the Constitution of the l'nited States, insofar as it guarantees to the people of this country life, liberty, and property, means that the legislative department of a State shall in no sense encroach upon such common rights; it means that the executive department-that is, any person empowered with the enforcement of legislative acts, be it a governor, sheriff, or police official, act. ing under the municipal law of a State shall not deny to any person the rights
which the fourteenth amendment pronounces shall be preserved, nor deny to any person the equal protection of the laws of that State.
“The learned justice also quotes from the very important case of United States v. Cruikshank (92 U.S. 542, 554). He adopts the statement :
". The fourteenth amendment prohibits a State from denying to any person within its jurisdiction the equal protection of the laws; but this provision does not, any more than the one which precedes it and which we have just considered, add anything to the rights which one citizen has under the Constitution against another. The equality of the rights of citizens is a principle of republicanism. Every republican government is in duty bound to protect all its citizens in the enjoyment of this principle, if within its power. That duty was originally assumed by the States, and it still remains there. The only obligation resting upon the United States is to see that the States do not deny the right.'
“The State can deny this right through an executive officer as readily as it can through a legislative or a judicial act. If a State, acting through its highest judicial officers, denies this right, there is a direct appeal, if the record has properly raised the point, to the Supreme Court of the United States. If the legislative department denies the right, we know, of course, how the right is preserved and enforced.
“ The mere fact that the Congress of the United States has never affimatively, so far as I have been able to find, invaded the field, and by appropriate legislation under this constitutional provision sought to restrain the executive officers of the States from denying this right is no reason why Congress should not now take such appropriate action as will tend to protect their and similar rights. Therefore, without citing additional authorities, I unhesitatingly make this deduction :
" Wherever the Constitution has delegated to Congress certain rights and duties which Congress is permitted or bound to enforce and to carry out, the extent to which Congress may go in thus enforcing rights or fulfilling duties within the limitations prescribed by the Constitution is sufficiently great to permit of the exercise of a Federal police power, and the exercise of this Federal police power is neither repugnant to nor superior to the police power of the State. Each is concurrent with the other. Thus, if in the proper use of its taxing power, or in the constitutional regulation of commerce, or in the establishment of war-time rules, it becomes necessary to resort to measures which partake of the nature of or are, in fact, equivalent and similar to the police regulations of a State, Congress has the right to adopt such measures and to enforce them. How appropriately might the quotation from Gibbons v. Ogden be paraphrased to fit any of the express powers of Congress? Is it not a logical step to adopt this principle of constitutional law to the fourteenth amendment as to any other provision? If it be so applied, and if the aforementioned opinion be so paraphrased, is it not correct to say, with the great Chief Justice
"It is obvious that the Government of the Union, in the exercise of its express powers, that, for example, of providing to all citizens equal protection of its laws, may use means that may also be employed by a state in the exercise of its acknowledged powers.'
“ In a word, it has been definitely established that there is a Federal police power; that Congress can invoke this power within the limits and according to the provisions of constitutional limitations; and that ('ongress having so invoked the power can enforce it to the fullest extent. If the State, in the mind of Congress, denies this right because all legislation assumes the existence of an evil to be corrected, then Congress, having legislatively determined that fact (and the courts will not consider whether Congress was or was not justified, but will assume because of Congress having passed appropriate legislation that the States have denied the rights in question), obviously, Congress possesses the authority under the fourteenth amendment and under the interpretation which the courts have given it to go forward and say that since the States of this country have denied to many people within their borders beca use of race and nationality the right to be protected in their property, in their lives and their liberty, and have also denied them the equal protection of the laws, a necessity exists that not only justifies but compels adequate and appro priate legislation to the end that the people of our several States may enjoy and be secure in those rights which the organic law guarantees them.
** We have, as you know, a great many instances where a State takes Juris diction before the Federal Government and where the Federal Government may bave and take concurrent jurisdiction. Those are the cases where the same act is a crime against separate sorereigoties. If one sprerezezt pro ceeds to punishment before the other, the punishment «f the first percent is generally pleaded as an equitable defense in criminal law to the impositive of a penalty by the other sovereignty, and I think that well be a case per senting possibly the situation pou suggest. If Congress ss fit to pass a law which came within the meaning, as the courts have defined that meezing the fourteenth amendment, that then the courts coul Ecope an inquiry as to whether Congress was justified in deciding what is generally termed a legislative fact. Congress, as we know, can taše afirmative activa e De upon many questions within its jurisdiction. I reall, as me will the law relative to bankruptcy. A few years ago we had no natioual beingratis law, merely the State insolveney laws. The mere fact that ('agress mes it te decide that the time has come, within the life of this country as a prereia Xation, to determine in faror of the affirmative esercise of a power which it has permitted to lie dormant is not to be questionel after congres boss actel. Neither is the existence of the power to be questioned, merely becam of congressional inaction, default, or beglect.
- The Supreme Court, speaking through Mr. Chief Justice Waite, in the case of the United States against Cruikshank (92 U.S. R 542), si adidreving himself to a very exhaustire consideration of the fourteenth amer.viment:
"• The fourteenth amendment prohibits a State from depriving any person of life, liberty, or property without due process of law.
"And from denying to any person within its jurisdiction the whole protection of the laws.
“* But this adds nothing to the rights of one citizen as against another. It simply furnished an additional guaranty against any eneroachment by the States upon the fundamental rights which belong to erers citizea as a member of society.
* The duty of protecting all of its citizens in the enjoyment of rights was originally assumed by the States, and it still remains the re. Will you please note this:
- "The only obligation resting upon the ['pited States is to see that the States do not deny the right.'
* My conclusion is this: Must the Congress of this country sit supinely by when it knows that a State, either affirmatively or negatirely. is denying that right? If the State omits to give or withholds protection through motives of indifference or inability, is the guaranty performed and the duty of the Federal Government discharged? In a word, is the fourteenth amendment meaningless Tecause of State negativity? I hope not, and I think not. The Congress of the United States elearly is charged under the Constitution, as interpreted by the Supreme Court, with the duty of seeing that the States do not neglect this right. Then, if the Congress of the United States decides that the States have, by omission. neglect, incapacity. or local prejudice, if you please, failed to insure and secure to every citizen within those States the full protection of the laws and the right to life, liberty, and property, then does not the obligation arise to protect these rights?
“We are all familiar with that state of affairs where if the Congress of the United States and it has recently decided it-concludes as a matter of fact that a republican form of government does not exist in a State because the State has not the means or the instrumentalities by which such forms of government are recognized and protected; that it, the Congress of the United States, has the right to go into that State and see that a republican form of government is maintained and preserved. It was done only recently, as you know, in the State of West Virginia, and a committee of the Senate of the United States, merely upon a determination of the legislative fact that a republican form of government did not exist there, invaded the State to see whether the State was properly enforcing its laws under its constitution and the Constitution of the United States.
“ If a State omits affirmatively to legislate upon such questions it has denied this protection by not taking affirmative action; if it takes affirmative action and does not enforce that action, or if it says it will take no action because within the judgment of the State, no action along those lines should be taken. then I say the Federal Government can say to that particular State, You have denied negatively,' 'You have failed to give,' . You have defaulted.' if I may so phrase it, to the citizens of these States the protection that the Constitution of the l'nited States, as interpreted by the Supreme Court, says they are entitled to receive.' Now, I contend that under the general police power, the Federal Government may go in, and, side by side with the States, as it does in
bankruptcy, aid the States in securing the protection which for any reason the local governments cannot give.
* The Federal Government was given the power to curb the States in these particulars and the States reserved the correlative right to so police' its citizens that in maintaining order it would not deprive any person of life, liberty, or property. And if it fails to preserve these rights—and the Congress concludes that such rights are denied the people and that they are deprived of due process of law-no matter the cause_then ale we to be told that these guaianties cannot be enforced by appropriate legislation?
* Section 5 of the fourteenth amendment says:
". The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.'
" This has received special consideration in Logan v. United States (144 U.S. 263, 293), where Mr. Justice Gray stated its meaning to be:
• Every right created by arising under or dependent upon the Constitution of the United States may be protected and enforced by Congress by such means and in such manner as Congress, in the exercise of the correlative duty of protection, or of the legislative powers conferred upon it by the Constitution may, in its discretion, deem the most eligible and best adapted to attain its object.'
* There is a limitation, however, in the amendment itself upon the power of Congress. The clause of the amendment under consiileration provides that ('ongress may enforce the provisions of the amendment by appropriate legislation', and the right to judge what is appropriate legislation rests with the lawmaking body of the Government ; that is, with Congress.
“ Mr. Justice Lamar, in United States against Sanges, said:
" . The provision of the fourteenth amendment authorizing Congress to enforce its guaranties by legislation means such legislation as is necessary to control and counteract State abridgement.'
“ The Supreme Court of the United States has held that Congress would have po right to provide for the enforcement of the provisions of this amendment in the following cases :
" • When the State has been guilty of no violation of its provisions ; when it las not made or enforced any law abridging the privileges or immunities of citizens of the United States; when no one of its departments has deprived any person of life, liberty, or property without due process of law or denied to any person within its jurisdiction the equal protection of the laws; when, on the contrary, the laws of the State as enacted by its legislative and construed by its judicial and administered by its executive departments recognize and protect the rights of all persons the amendment imposes no duty and confers no power upon Congress,
** But by implication when a State has been guilty of violating any of the above provisions then Congress may provide for the enforcement of the provisions of the amendment. " In Ex parte Virginia, supra, Mr. Justice Strong stated the rule to be:
" • Congress is authorized to enforce the prohibitions by appropriate legislation. Some legislation is contemplated to make the amendments fully effective. Whatever legislation is appropriate that is, adapted to carry out the objects the amendments have in view--whatever tends to enforce submission to the prohibitions they contain, and to secure to all persons the enjoyment of perfect equality of civil rights and equal protection of the laws against State denial or invasion, if not prohibited, is brought within the domain of congressional power."
" In Mccray v. t'nited States (195 U.S. 27) the authorities are reviewed and reference is especially made to Er parte McCardle 17 Wall. 506), where the court said:
** We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution : and the power to make exceptions to the appellate jurisdiction of this court is given by express words.'
“The courts have no right to question the expedienry or the reasonableness of legislation. In Treat v. White (181 U.S. 264). the court said:
*. The power of ('ongress in this direction is unlimited. It does not come within the province of this court to consider why agreements to sell shall be subject to the stamp duty and agreements to buy not. It is enough that ('ongress, in this legislation, has imposed a stamp duty upon this one and not upon the other.'