RIGHTS AND PRIVILEGES UNDER THE

FOURTEENTH AMENDMENT.

Chapter 1.

FOURTEENTH AMENDMENT.

"SECTION 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."

"SECTION 5. The Congress shall have power to enforce by appropriate legislation the provisions of this article."

We can not conceive of principles of constitutional law more important and grave, especially as part of the Constitution of the United States, than those embodied in the above sections of its Fourteenth Amendment, both because

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they are a direct guaranty and assurance by the federal government of the greatest rights to citizens and persons, and because they deeply concern the relation of the nation to the states, and may produce the most perilous conflict and clash between them. These principles are in themselves old, dating from Magna Charta, granted by King John in 1215, and found in all the American state constitutions; but it was left to the states to vindicate them--the states were supreme as to them-and never, until the 28th of July, 1868, when this amendment went into force, did the federal government undertake the guaranty of the rights contained in it. True, the Fifth Amendment does say that no person shall "be deprived of life, liberty or property without due process of law"; but this operates only on the national government, not on the states. It is exclusively the Magna Charta restraining the federal government.1

Whether we test the matter by the rigid construction of the federal constitution given it by that school claiming the largest right for the states, or by the school giving a more liberal construction in favor of the federal government, or even of a third class, which may be called the school of latitudinarians, in favor of the power of the federal government; whether we follow Calhoun, Madison, Jefferson, Stephens and Davis, or Washington, Hamilton, Story, Marshall, Kent and Webster, the United States possessed no such power of restraint upon the governmental action of the States as that conferred by the Fourteenth Amendment. We can not say that it is an

1 Spies v. Illinois, 123 U. S. 166.

invasion of the rights of the States, because it was adopted by them; but a change, a vast innovation upon the former law, it plainly is. As Justice Swayne said in the Slaughter House Cases,3 it "trenches directly upon the power of the states, and deeply affects those bodies." We can not under it ask the question, Where is the dividing line between state and national power? as in other cases we may; for there is no dividing line. The question in a case is, Has the State gone beyond its powers? Has it deprived one of privilege, immunity, life, liberty or property without due process, or deprived him of the equal protection of the laws? Has it withheld from him what its own law properly applied would assure to him?

The rights thus guaranteed by the national government are obviously just rights, those which ought to be accorded by every free government, and can not be too firmly secured. All admitted this when the amendment was being debated; but the question at issue was whether the guaranty should be left exclusively to the states or to the nation also. The proposition of its adoption elicited great acrimony and difference of opinion as to its necessity and expediency. Mr. Pomeroy, writing while it was in debate, considered it the most important of all the amendments, except only the Thirteenth. He said: "It would give the nation complete power to protect its citizens against local injustice and oppression, a power which it does not now adequately possess, but which, beyond all doubt, should be conferred upon it. Nor would it interfere with any of the rights, privileges and func

2 Ex parte Va. 100 U. S. 346.

3 16 Wall. 125.

tions which properly belong to the states." He thought that, as the Constitution had from its origin prohibited the states from passing attainders, ex post facto laws and laws impairing the obligations of contracts, it was strange it had omitted to protect, from its beginning, life, liberty and property against adverse state action by the requirement of due process.

In the view of many of its advocates this amendment may be appropriately called, not Magna Charta, but Maxima Charta, since it not only guarantees great cardinal rights essential to life, liberty, property and happiness, but gives their ample defense into the hands of the Great Republic wherever assailed, and thus enables the American citizen when in peril to say "I am an American citizen" as the ægis of his safety, just as Cicero said a Roman citizen might save himself anywhere within the bounds of the Roman Republic or its colonies or dependencies by the plea "Sum Romanus civis."

In the discussion of this amendment it was argued that the fundamental rights protected by it ought to be defended in one state as in another throughout the republic, and that the republic should possess this corrective, defensive power. On the other side, it was argued that if a state is a government with any sovereign rights it should have power to pass finally upon even the life, liberty and property of its citizens, else it would be practically no government with such essential powers lopped off. The early amendments betray a fear then existing of inordinate power in the nation. This one evinces the opposite fear, that of too little power in the Nation and the violation of the rights of person by the states. The oppo