“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.