Numerous cases under this amendment have blazed the way to a considerable extent, but have not made a broad, clear highway. Its construction is still, after thirty years, in a chrysalis state, in process of evolution, and will long continue to be. Courts may lay down some general principles under it; but they will be only approximately accurate, though very useful in future time. We must apply it to each case as it comes, guided, as far as can be, by prior decisions.

3

To Whom it Applies.--The amendment applies only to state governmental action. Its first section does not operate upon the federal government, but on that of the states it does; nor does it have any reference to action or conduct of individual to individual. That it is a restraint upon state action is very obvious from its words, they being words of explicit prohibition. "No state shall" do the things prohibited. And Section 5 gives Congress power to enforce the amendment by appropriate legislation. And the Constitution of the United States is the highest law of the land. Thus it is undeniable that the federal government can and should, under this amendment, in proper cases, use all its machinery for the vindication of the rights by it sought to be protected.

Authorities to Enforce Amendment. It is the duty of the courts and other agencies of state administration to recognize and concede the rights intended to be protected by the amendment, in the first instance, in transactions presented for their action, without waiting for intervention by federal courts, the federal Constitution being the

3 Civil Rights Cases, 109 U. S. 23; Paul v. Va. 8 Wall. 168: Va. v. Rives, 100 U. S. 318; U. S. v. Cruikshanks, 92 U. S. 542, 95 Fed. 849.

It is

highest law ruling state and federal tribunals. prohibitory upon the states to deny those rights, and therefore it is plainly the duty of the courts and other authorities of the state to concede and vindicate such rights where they exist. The right to pass finally on the question whether the state has infracted the amendment lies with the federal Supreme Court.5

4

No New Rights Granted. As elsewhere stated, the amendment creates no rights not existing before it. It originates none. It adds nothing to the catalogue of privileges, immunities, rights of life, liberty or property, or of equality before the law. It does not specify or define any of them. It only defends those rights existing underthe law of the land, federal or state, and in being at its adoption, or born of the law afterwards. This is an important consideration in the construction and application of the amendment. It brings nothing new. It adds no privileges. The things it guarantees are old. It is only Magna Charta over again. It only enjoins upon the state, by the voice of the highest law, the duty of regarding and conceding certain cardinal rights, and grants to the national government the power to correct and reverse their plain denial by the action of the state.

This is strongly illustrated by decisions holding that the rights of suffrage and making a living by practicing law are neither granted nor protected by the amendment." What could more strongly show that the amendment gave

4 Neal v. Delaware, 103 U. S. 370.

5 Tarble's Case, 13 Wall. 397; Cohens v. Va. 6 Wheat. 264; State V. Sponagle, 45 W. Va. 415, 32 S. E. 283.

6 Minor v. Happersett, 21 Wall. 162; In re Lockwood, 154 U. S.

no new rights than the principle settled by many cases that "due process of law" means the same as the words "law of the land" in old Magna Charta ?

7 Murray. Hoboken, 18 How. 276.

Chapter 5.

UNITED STATES SUPREME COURT DECIDES FINALLY.

The question naturally arises, Who is to say, finally, whether given action of a state is violative of the Fourteenth Amendment? I answer, the Supreme Court of the United States. Very soon after the adoption of the Constitution arose the questions, Is it with the national or the state judiciary to say whether the Union has exceeded its powers, or whether a state statute is repugnant to the federal Constitution? Has the state or the nation right to answer finally? These great questions engendered an intense, acrimonious discussion, involving vitally the relations of the national and state governments. No graver questions could be put upon the subject. Chief-Justice Marshall did not overdraw when he said, in Cohens v. Vir-i ginia,' that the fate of the Union hung upon the answer. Very eminent contention was made, no less than resolutions of the Kentucky and Virginia legislatures, called the "Kentucky and Virginia Resolutions of 1798," that the federal government had not right to pass conclusively on the relative extent of federal and state power. The Kentucky resolutions, written by Thomas Jefferson, in

16 Wheat. 377.

terms said of the federal government that "this government, created by this compact, was not made the exclusive or final judge of the extent of the powers delegated to itself, since that would have made its discretion, not the Constitution, the measure of its powers, but that, as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress." A resolution of Kentucky in 1799 declared that nullification by the states of unauthorized acts done under color of the Constitution was the lawful and rightful remedy. The Virginia resolutions were practically the same. Mr. Calhoun with great ability advocated this view later. Even the great unionist, Andrew Jackson, in private letters, wavered as to the final power of decision of the nation.

The opponents of this contention appealed to the fact that the Constitution gave the federal judiciary jurisdicion of "all cases in law and equity arising under this Constitution, the laws of the United States or treaties made, or which shall be made, under their authority," and to the provision, "This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding." They asked, "Who shall be the final judge of its own powers but that government whose constitution and laws are thus made supreme, and whose courts are given jurisdiction of all cases arising