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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.
646. Citizenship Defined. This clause is a denial of the principle on which the Dred Scott decision rested, viz., that a negro could not be a citizen of the United States. The Civil Rights Act of April, 1866, had declared the right of colored persons to citizenship; but as this was only opposing an act of Congress to a decision of the Supreme Court, it was deemed advisable to declare, by constitutional provision, all persons born or naturalized in the United States, and subject to the jurisdiction thereof, citizens of the United States and of the State wherein they reside. The privileges or immunities of the citizens of the United States cannot be readily catalogued; but legal protection of life, liberty, and property, the right to form family relations, the right to exemption from unequal taxations, to choose one's profession, and to the use of the courts of law, are unquestionably included. The suffrage is a political and not a civil right.
647. Due Process of Law.-The effect of the provision in relation to this subject is, that these rights are placed under the protection of known and established principles and maxims. Life, liberty, and property are representative terms and cover every right to which a member of the body politic is entitled under the phrase, “the equal protection of the laws." It is not understood that this phrase relates to class distinctions that are founded in nature and reason, but only such as are purely arbitrary. "It is a formal declaration," says Judge Cooley, "of the great principle that has been justly said to pervade and animate the whole spirit of our constitution of government, that all are equal before the law."
The Supreme Court has refused writs of habeas corpus asked for to stay the execution of criminals condemned to death by the use of electricity uuder a law of New York prescribing that mode of punishment in capital cases. Iu Kemmler's case ? the petition for the writ was put on the ground that since the punishment was cruel and ünusual, the execution of the sentence would be in contravention of the clause 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." The Court held that the statute was not repugnant to the Constitution. The Chief Juslice said burning at the stake, crucifixion, breaking at the wheel, or the like, would be cruel punishments within the meaning of the Constitution. The Court also held that Amendment VIII, has no application to State jurisprudence. The Superior Court of New York has also decided that the proposed punishment is not cruel or unusual,
Section 2.-Representatives shall be apportioned among the sev. eral States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the executive and judicial officers of a State, or members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
648. Reason for the Section.--In 1868 negroes were denied the suffrage in nearly all the States, North as well as South. The statesmen controlling Congress at that time believed that this was a situation that boded ill to the colored race, especially in view of the recent emancipation of the slaves. The whites, it was feared, would discriminate against the negroes, and it was held to be the duty of the National Government to see that they were protected in their civil rights. According to American ideas, the direct road to such protection is the right of voting. But the regulation of the suffrage had always belonged to the States; there was also a widespread prejudice against conferring it ou colored men at all. So this clause was devised, in the expectation that the Southern States, rather than submit to a large reduction of their representation in the House of Representatives and in the Electoral Colleges, would grant the suffrage to colored men. The clause offered the Southern States a strong political inducement to give the negro the vote; not one of them complied with the condition ; but, as the next apportionment of Representatives was not made until Amendment XV. had been declared in force, the clause has never had the slightest effect. Nor is the first section of the Article anything more than a formal declaration of the rule of apportionment since the three-fifths rule ceased to operate.
1 In Re Kemmler, Petitioner, 136 U. S. 436.
Section 3.-No person shall be a Senator or Representative in Congress, or Elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State Legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrectiou or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.
649. Object of the section. The effect of this section was to put the political and military leaders of the Rebellion under a temporary disability to hold office. Congress has often legislated on the subject. The last general Amnesty Act, passed in 1872, removed their disabilities from all persons save Senators and Representatives of the Thirtysixth and Thirty-seventh Congresses, officers in the judicial, military, and naval service, and foreign ministers.
Section 4. —The validity of the public debt of the United States, authorized by law, including debts incurred for the payment of pensions and bounties for services in suppressing insurrection and rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations, and claims shall be held illegal and void.
650. Objects of the Section.-In 1866 it was feared that efforts might be made (1) to repudiate the National debt created to carry on the war; (2) to pay the Southern war debt; or (3) to pay for the slaves that had been emancipated. Hence the incorporation of the foregoing prohibitions in the Constitution.
Section 5.-The Congress shall have power to enforce, by appropriate legislation, the provisions of this Article.
651. Amendment XV.-When the Constitution went into operation in 1789, persons of color voted in several of the States. Subsequently the right was denied in nearly all of the States, and this was the situation in 1866. It was soon seen that the indirect plan of securing such persons the suffrage, (Amendment XIV., section 2,) would either fail wholly of accomplishing its purpose, or would be a long time in doing so. Congress accordingly proposed, February 27, 1869, a new amendment to reach that end directly. Thirty of the thirty-seven States having duly ratified it, Secretary Fish issued his certificate declaring it in force, March 30, 1870. It is in these words:
Section 1.–The right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color, or previous condition of servitude.
Section 2.—The Congress shall have power to enforce this Article by appropriate legislation.
652. Effect of Amendments XIII.-XV.-The circumstances under which these Amend nents were incorporated into the Constitution, were not favorable to a careful consideration of their real import and probable effect. They were adopted to prevent existing evils, and how far-reaching they might prove to be, was not maturely considered. Even those members of Congress who agreed in desiring to make such another struggle as the Civil War impossible, by no means agreed as to their immediate or ultimate effect. Hence, when the Amendments had become parts of the Constitution, the questions arose at once : How far have they weakened the States? How far have they strengthened the Union ? These questions have since been passed upon, in their general features, by the Supreme Court. In the Slaughter-House Cases the Court said :
“We do not see in those amendments any purpose to disturb the main features of the general system. Under the pressure of all the excited feeling growiug out of the war, our statesmen have still believed that the existeuce of the States, with powers for domestic and local government, including the regulation of civil rights-the rights of person and property-was essential to the perfect working of our complex form of government, though they have thought proper to impose additional limitations on the States, and to confer additional power on that of the Nation."1
And Mr. Justice Miller, commenting upon the decision, has said : “The necessity of the great powers conceded by the Constitution originally to the Federal Government, and the equal necessity of the autonomy of the States and their power to regulate their domestic affairs, remain as the great features of our complex form of goverument."
653. Civil Rights Acts. Soon after the Thirteenth Amendment was declared in force, Congress passed the first of that series of acts known as the Civil Rights Acts, with a view “to protect all persons in the United States in their civil rights.” The last of these Acts, beariug date March, 1875, section 1, declared :
"That all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theatres and other places of public amusement, subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude."
The succeeding section imposed penalties for violations of the rights here enumerated, and prescribed legal remedies. It is clear that if the new Amendments authorized such legislation as this, then they had fundamentally changed the nature of the Government. But in the Civil Rights Cases, 2 decided in December, 1882, the Supreme Court held that this legislation was unconstitutional so far as it related to the States.
1 16 Wallace 36. 2 109 U. S. Reports 3.