President Johnson, in his recent annual message, says:--

“In case of the usurpation of the government of a State by one

man or an _oligarchy_, it becomes a duty of the United States

to make good the guaranty to that State of a republican form of

government.”

The President forgets to mention an aristocracy, and does not add,

what is true, that the authority bound to make good the guaranty is

the sole judge of the exigency. To this end everything centres in

Congress, whose powers are commensurate with the occasion. In aid of

the guaranty are those other words providing that Congress “shall

have power to make all laws which shall be necessary and proper for

carrying into execution the powers vested by the Constitution in the

Government of the United States.” Under this ample provision there is

a duty to be performed, by any means that seem best. The jurisdiction

is complete, and it is in Congress. If any authority were needed for

this proposition, it would be found in the words of Chief Justice Taney

himself, speaking for the Supreme Court of the United States:--

“The fourth section of the fourth article of the Constitution

of the United States provides that the United States shall

guaranty to every State in the Union a republican form of

government, and shall protect each of them against invasion,

and, on the application of the Legislature, or of the Executive

(when the Legislature cannot be convened), against domestic

violence.

“_Under this article of the Constitution, it rests with

Congress to decide what government is the established one in

a State. For, as the United States guaranty to each State a

republican government, Congress must necessarily decide what

government is established in the State, before it can determine

whether it is republican or not._”[184]

In the exercise of this power two courses are open. One is to impose an

irrepealable condition upon the unrepublican States, requiring them,

before recognition, to re-form their governments to the satisfaction

of Congress. The other, and more direct, is by Act of Congress, in

performance of the guaranty, and according to the plenary authority

“for carrying into execution the powers vested by the Constitution in

the Government of the United States,” to provide all needful safeguards

in the unrepublican States, and especially to place the Equal Rights of

All under the guardianship of National Law.

Against the exercise of this power there are but two arguments. First,

that the Constitution, by providing that “the electors in each State

shall have the _qualifications_ requisite for electors of the most

numerous branch of the State Legislature,” has reserved to each State

the power of excluding citizens merely on account of color, even though

constituting more than a majority of the population. The other argument

is, that, since certain States at the North have disfranchised the few

colored persons within their borders, the United States are so far

constrained by this example that they cannot protect the millions of

freedmen in the Rebel States from disfranchisement, and cannot save the

Republic from the peril of crying injustice. I know not which of these

two arguments is the least reasonable, or rather, which is the most

reprehensible. They are both unreasonable, and both reprehensible. They

both do violence to the true principles of the National Constitution,

if not to common sense.

It is true, that, according to the text of the Constitution, each State

may determine the “qualifications” of electors; but this can have no

application to an exigency like the present, where, at the close of a

prolonged and desperate rebellion, the United States are obliged to

guaranty to certain States a republican form of government. In the

performance of this guaranty, the United States will look only at the

essential elements of such a government, nor more nor less, without

regard to State laws. But I am unwilling to rest the argument here.

Even assuming that there has been no lapse of State governments, so

as to bring the guaranty into operation,--assuming that we are in

a condition of assured peace,--then I utterly deny that the power

to determine the “qualifications” of electors can give any power to

disfranchise actual citizens. It is “qualifications” only which the

States can determine,--meaning by this limited term those requirements

of personal condition regarded as essential to the security of the

franchise. These “qualifications” cannot be in nature permanent or

insurmountable. Color cannot be a “qualification,” any more than size,

or quality of hair. A permanent or insurmountable “qualification”

is equivalent to deprivation of suffrage; in other words, it is the

tyranny of taxation without representation, and this tyranny, I

insist, is not intrusted to any State. This is the very ground taken by

Mr. Madison, when defending the National Constitution in the Virginia

Convention.

“Some States might regulate the elections on the principles of

_Equality_, and others might regulate them otherwise.… Should

the people of any State, by any means, be deprived of the right

of suffrage, _it was judged proper that it should be remedied

by the General Government_.… If the elections be regulated

properly by the State Legislatures, the Congressional control

will very probably never be exercised. The power appears to

me satisfactory, and unlikely to be abused as any part of the

Constitution.”[185]

With these decisive words from a chief framer of the National

Constitution, backed by the reason of the case, I dismiss this

objection to the little consideration it deserves. And I dismiss to

the same indifference the other objection, that our hands are tied

because certain Northern States have done a wrong and mean thing. Pray,

Sir, how can the failure of these States affect the power of Congress

in a great exigency under the National Constitution? Duty here is

identical with power. No matter if the power has been long dormant, it

is none the less vital. It is like the slumbering statute which Cicero

describes as a sword in the scabbard, _tanquam gladius in vagina_. It

only remains that it be drawn forth.

* * * * *

This duty is fortified by the Constitutional Amendment, which, after

providing for the abolition of Slavery, empowers Congress to “enforce”

it by “appropriate legislation,” thus heaping Ossa upon Pelion.

Clearly, under these words, Congress may do what in its discretion

seems “appropriate” to this end, and there is no power to call its

action in question. On this point the authority of the Supreme Court,

in the weighty judgment of Chief Justice Marshall, is explicit.

“The government which has a right to do an act, and has imposed

on it the duty of performing that act, must, according to the

dictates of reason, be allowed to select the means; and those

who contend that it may not select _any appropriate means_,

that one particular mode of effecting the object is excepted,

take upon themselves the burden of establishing that exception.…

“Let the end be legitimate, let it be within the scope of the

Constitution, and _all means_ which are appropriate, which are

plainly adapted to that end, which are not prohibited, but

consist with the letter and spirit of the Constitution, are

constitutional.”[186]

These words of the Chief Justice are reinforced by a kindred

declaration from another great authority, Mr. Justice Story, speaking

also for the Supreme Court, on an important occasion.

“The Constitution unavoidably deals in general language.…

The instrument was not intended to provide merely for the

exigencies of a few years, but was to endure through a long

lapse of ages, the events of which were locked up in the

inscrutable purposes of Providence.… Hence its powers are

expressed in general terms, leaving to the Legislature from

time to time _to adopt its own means to effectuate legitimate

objects_.”[187]

Apply these words to the present case, and the conclusion is

irresistible. Whatever legislation seems “appropriate” to “enforce” the

abolition of Slavery, whatever means seem proper to this end, must be

within the powers of Congress under the Constitutional Amendment. You

cannot deny this principle without setting aside those most remarkable

judgments which stand as landmarks of constitutional history. But

who can doubt that the abolition of the whole Black Code, in all its

oligarchical pretensions, civil and political, is “appropriate” to

“enforce” the abolition of Slavery? Mark the language of the grant.

Congress may “enforce” abolition, and nobody can question the “means”

it thinks best to employ. Let it not hesitate to adopt the “means” that

promise to be most effective. As the occasion is extraordinary, so the

“means” employed must be extraordinary.

But the Senate has already by solemn vote affirmed this very

jurisdiction. You have, Sir, decreed that blacks shall enjoy the same

civil rights as whites,--in other words, that with regard to civil

rights there shall be no oligarchy, aristocracy, caste, or monopoly,

but that all shall be equal before the law, without distinction

of color. And this great decree you have made, as “appropriate

legislation” under the Constitutional Amendment, to “enforce” the

abolition of Slavery. Surely you have not erred. Beyond all question,

the protection of the colored race in civil rights is essential to

complete the abolition of Slavery; but the protection of the colored

race in political rights is not less essential, and the power is as

ample in one case as in the other. In each you legislate for the

maintenance of that Liberty so tardily accorded, and the legislation is

just as “appropriate” in one case as in the other. Protection in civil

rights by Act of Congress will be a great event. It will be great in

itself. It will be greater still, because it establishes the power

of Congress, without further amendment of the National Constitution,

to protect every citizen in all his rights, including of course the

elective franchise. There are precedents of Congress, as well as of

courts, which are landmarks; and this is one of them.

Therefore, as authority for Congress, you have two sources in the

Constitution itself,--first, the guaranty clause, and, secondly,

the Constitutional Amendment, each sufficient, the two together a

twofold sufficiency. To establish the Equal Rights of All, no further

Amendment is needed. The actual text is exuberant. Instead of adding

new words, it will be enough, if you give those that exist the natural

force belonging to them. Instead of neglecting, use them. Instead of

supplementing, interpret them. An illustrious magistrate once retorted

upon an advocate, who, dissatisfied with a ruling of the court,

threatened to burn his books, “Better read them”; and so would I say

now to all who think the Constitution needs amendment, Better read it.

Yes, Sir, read it in the principles proclaimed by the Fathers before

the Revolution, read it in the declarations of the Fathers when they

took their place as a Republic, read it in the avowed opinions of the

Fathers, read it in the public acts of the Fathers; and in all this

beaming, diffusive light you will discern the true meaning. Then again

read it in that other light which, as from another sun, newly risen

at midday, streams from the obligation of Congress to “enforce” the

abolition of Slavery. And yet again read it in the glowing illumination

of the war. In whichever light you read it, you will find always the

same irresistible meaning. Even if the text were doubtful, the war

makes it clear. The victory which overthrew Slavery carried away all

those glosses and constructions by which this wrong was originally

fastened upon it. For generations the National Constitution has been

interpreted for Slavery. From this time forward it must be interpreted

in harmony with the Declaration of Independence, so that Human Rights

shall always prevail. The promises of the Fathers must be sacredly

fulfilled. This is the commanding rule, superseding all other rules.

This is a great victory of the war,--perhaps the greatest. It is

nothing less than the emancipation of the Constitution itself.

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