How is the amend ment to be enforced? What are privileges and immunities? Powers of States remain. What are 503. "No STATE SHALL MAKE OR ENFORCE ANY LAW WHICH SHALL ABRIDGE THE PRIVILEGES AND IMMUNI TIES OF CITIZENS OF THE UNITED STATES." The manner of enforcing this amendment will depend on the character of the privilege or immunity in question. If simply prohibitory of governmental action, there will be nothing to enforce until such action is undertaken. When the provision is violated by an obnoxious law, such law is void, and all acts under it will be trespasses. The legislation required would be a preventive or compensative remedy. The United States v. Cruikshank, 1 Woods, 327. In Paul v.Virginia (8 Wallace, 180) the court, in expounding this clause of the Constitution, says that "the privileges and immunities secured to citizens of each State in the several States are those which are common to the citizens in the latter States, under their constitutions and laws, by virtue of their being citizens." The constitutional provision there alluded to did not create those rights, which it called privileges and immunities of citizens of the States; it threw around them in that clause no security for the citizen of the State where exercised, nor did it pretend to curtail the power of the States over them. Its sole purpose was to declare to the several States that whatever those rights are, as you grant or establish them, or as you limit or qualify them, or impose restrictions on their exercise, the same, no more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction. Was it the purpose of the framers of the fourteenth amend ment, by the simple declaration that no State shall make or enforce any laws which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned from the States to the federal Government? And where it is declared that Congress shall have power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States? The majority of the court thought not. No case in this court until that of Ward v. Maryland in 1872 required a consideration of those words as used in the original Constitution in reference to citizens of the States. One of these is well described in the case of Crandall v. some of the Nevada, 6 Wallace, 36. It is said to be the right of the citi rights of the citizen? Zen of this great country, protected by implied guaranties of its Constitution, "to come to the seat of government to assert any claim he may have upon that Government, or transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions. He has the right to free access to its seaports, through which all operations of foreign commerce are conducted, to the subtreasuries, land offices, and courts of justice in the several States." And. quoting from the language of Chief Justice Taney, in another case, it is said "that for all the great pur- Taney. poses for which the Federal Government was established we are one people, with one common country. We are all citizens of the United States;" and it is as such citizens that these rights are supported in this court in Crandall v. Nevada. corpus. Another privilege of a citizen of the United States is to And others? demand the care and protection of the Federal Government over his life, liberty, and property when on the high seas, or within the jurisdiction of a foreign government. Of this there can be no doubt, nor that the right depends upon his character as a citizen of the United States. The right to peaceably assemble and petition for a redress of grievances, the privilege of the writ of habeas corpus, are rights of the citizen Habeas guaranteed by the Federal Constitution. The right to use the navigable waters of the United States, however they may penetrate the territories of the several States, all rights seenred to our citizens by treaties with foreign nations, are dependent upon citizenship of the United States and not citizenship of a State. One of these privileges is conferred by the very article under consideration. It is, that being a citizen of the United States any person can of his own volition become a citizen of any State of the Union by acquiring a residence therein, with the same rights as other citizens of that State. We are not without judicial interpretation, therefore, both What are State and national, of the meaning of this clause. It is suffi- not? cient to say here that under no construction of the third provision that we have ever seen, nor any that we deem admissible, can the restraint imposed by the State of Louisiana upon the exercise of their trades by the butchers of New Orleans be held to be a deprivation of property within the meaning of that provis. n. Slaughter House Cases, 16 Wall., 76, 77. 504. "NOR SHALL ANY STATE DENY TO ANY PERSON Define this WITHIN ITS JURISDICTION THE EQUAL PROTECTION OF clause. THE LAWS." In the light of the history of these amendments, and the pervading purpose of them, it is not difficult to give a meaning to this clause. The existence of laws in State laws. the States where the newly-emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the end to be remedied by this clause, and by it such laws are forbidden. But if the States did not conform their laws to its requirements, then by the fifth section of the article Congress was authorized to enforce it by suitable legislation. (The Slaughter-House Cases, 75-82. Justice Field read the dissenting opinion on behalf of the Chief Justice, Justices Swayne, Bradley, and himself. And Mr. Justice Bradley dissented in an able opinion. Define this clause. Dissentient opinion. What are the basis of tion and tions? 505. "NOR SHALL ANY STATE DEPRIVE ANY PERSON OF LIFE, LIBERTY, OR PROPERTY WITHOUT DUE PROCESS OF LAW." Prior to the amendments the police laws regulating the traffic in liquor raised no question under the Federal Constitution. Wynehamer v. The People, 3 Kern., 486, is a single case denying the power of a State to destroy the traffic in liquor. And this right is not one of those growing out of the citizenship of the United States. (Slaughter-House Cases, 16 Wall., 36.) Bartemyer v. Iowa, 18 Wall., 132, 133. Justices Bradley, Field, and Swayne concurred, but denied the applicability of the Slaughter-House Case, and also the soundness of that case. Mr. Justice Field, in a very able opinion, insisted that the XIVth amendment had taken away the power of the State to parcel out to favorite citizens the ordinary trades and callings of life; and that while prior to this and the XIIIth amendment the States had supreme authority over all such matters; and the national Government, except in a few particular cases, could afford no protection to the individual against arbitrary and oppressive legislation. He concludes that the amendments grew out of the feeling that the Union was worthless if every citizen could not be protected in all his fundamental rights everywhere; that the amendments were not primarily intended to confer citizenship on the negro race-they had a broader purpose; were intended to justify legislation, extending the protection of the national Government over the common right of all citizens, and thus to obviate the objections to legislation for the mere protection of the emancipated race. It was intended to make it possible for all persons, of every race and color, to live in peace and security wherever the jurisdiction of the nation extended. The XIVth amendment recognized a national citizenship, and declared that the privileges and immunities which embrace the fundamental rights, which belong to all citizens of free governments should not be abridged by any State. This national citizenship is primary, not secondary. Barte meyer v. Iowa, 18 Wall., 137-141. SECTION 2. Representatives shall be apportioned representa among the several States according to their respectthe excep- ive 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 the members of the legislature thereof, is denied to any The male inhabit of the male inhabitants of such State, being twenty- 506. "REPRESENTATIVES SHALL BE APPORTIONED What are AMONG THE SEVERAL STATES ACCORDING TO THEIR the numbers? RESPECTIVE NUMBERS." [The views of the editor as to whether section supra was clause 3 of section 2, article I, as to direct taxes, has been repealed, are given in note 302. The question is still open, and it is hardly probable that it will be answered by strict logic and the weight of precedent.] Women and children are persons, and so they always were, and citizens likewise. They are counted in the numeration; but they are not necessarily voters. Minor v. Happersett, 21 Wall., 174. How are tives appor 50%. "COUNTING THE WHOLE NUMBER OF PERSONS. "" The Committee on Apportionment reported the following representabasis of representation in Congress, under the ninth census, tioned? which was adopted in the acts of 2 February, 1872, and May 30, 1872, and re-enacted in the Revised Statutes, sec. 20. The right-hand column is the editor's, showing the representation as it now stands. Table. Table of Apportionment of Representation according to the How was the basis reached? The committee, however, in addition to the twelve members assigned to fractions by the above table, assign one to New Hampshire and one to Florida, making, in all, a House of 292. The reason for this is, that greater injustice will |