“to _enforce_ this article by appropriate legislation.”
The whole field of apt legislation is open to be employed by Congress
in enforcing Abolition. Congress entered upon that field and
passed the original Civil Rights Act. And who among us now, unless
one of my friends on the other side of the Chamber, questions the
constitutionality of that Act? Does any one? Does any one doubt it?
Does any one throw any suspicion upon it? Would any one have it dropped
from the statute-book on any ground of doubt or hesitation? If there
is any Senator in this category, I know him not. I really should like
to have him declare himself. I will cheerfully yield the floor to any
one willing to declare his doubts of the constitutionality of the Civil
Rights Act. [_After waiting a sufficient time._] Sir, there is no
Senator who doubts it.
Now, how can any Senator, recognizing the constitutionality of the
original Civil Rights Act, doubt the present supplementary measure?
Each stands on the same bottom. If you doubt one, you must doubt the
other. If you rally against that Amendment, your next move should
be to repeal the existing Civil Rights Act as inconsistent with the
Constitution. Why does not my excellent friend from Maine bring
forward his bill? Why does he not invite the Senate to commence the
work of destruction, to tear down that great remedial statute? Why is
he silent? Why does he hang back, and direct all his energies against
the supplementary measure, which depends absolutely upon the same
constitutional power? If he is in earnest against the pending motion,
he must show the same earnestness against the preliminary Act.
When I assert that Congress has ample power over this question, I rely
upon a well-known text often cited in this Chamber, often cited in our
courts,--the judgment of the Supreme Court pronounced by Chief-Justice
Marshall, in the case of _McCulloch_ v. _State of Maryland_, from which
I will read a brief extract:--
“But the argument on which most reliance is placed is drawn
from the peculiar language of this clause. Congress is not
empowered by it to make all laws which may have relation to
the powers conferred on the Government, but such only as may
be ‘_necessary and proper_’ for carrying them into execution.
The word ‘_necessary_’ is considered as controlling the whole
sentence, and as limiting the right to pass laws for the
execution of the granted powers to such as are indispensable,
and without which the power would be nugatory,--that it
excludes the choice of means, and leaves to Congress in each
case that only which is most direct and simple.”
These words show how the case was presented to the Court. Here is the
statement of John Marshall:--
“We admit, as all must admit, that the powers of the Government
are limited, and that its limits are not to be transcended.
But we think the sound construction of the Constitution
must allow to the National Legislature that discretion with
respect to the means by which the powers it confers are to be
carried into execution which will enable that body to perform
the high duties assigned to it in the manner most beneficial
to the people. 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_.”[223]
In other words, the Supreme Court will not undertake to sit in judgment
on the means employed by Congress for carrying out a power which exists
in the Constitution. Now the power plainly exists in the Constitution;
it is to abolish Slavery, and it is for Congress in its discretion to
select the means. Already it has selected the Civil Rights Law as the
first means for enforcing the abolition of Slavery. I ask it to select
the supplementary bill now pending as other means to enforce that
abolition. One of the letters that I have read to-day from a leading
colored citizen of Georgia said: “When that becomes a law, the freedom
of my race will then be complete.” It is not complete until then; and
therefore, in securing that freedom, in other words in enforcing the
Constitutional Amendment, Congress is authorized to pass the bill which
I have felt it my duty to introduce, and which is now moved on the
Amnesty Bill.
I might proceed with this argument. But details would take time, and
I think they are entirely needless. The case is too strong. It needs
no further argument. You have the positive grant of power. You have
already one instance of its execution, and you have the solemn decision
of the Supreme Court of the United States declaring that it is in the
discretion of Congress to select the means by which to enforce the
powers granted. How, Sir, can you answer this conclusion? How can my
excellent friend answer it?
Were I not profoundly convinced that the conclusion founded on the
Thirteenth Amendment was unanswerable, so as to make further discussion
surplusage, I should take up the Fourteenth Amendment, and show how,
in the first place, we have there the definition of a Citizen of the
United States, and then, in the second place, an inhibition upon the
States, so that they cannot make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States, nor
deny to any person within the jurisdiction of the United States the
equal protection of the laws. And here again Congress is empowered
to enforce these provisions by appropriate legislation. Surely, if
there were any doubt in the Thirteenth Amendment, as there is not,
it would all be removed by this supplementary Amendment. Here is the
definition of Citizenship, and the right to the equal protection of
the laws,--in other words, Citizenship and Equality, both placed under
the safeguard of the Nation. Whatever will fortify these is within the
power of Congress by express grant. But if these are interpreted by the
Declaration of Independence, as I insist, the conclusion is still more
irresistible.
Add the original text of the Constitution, declaring that “the citizens
of each State shall be entitled to all privileges and immunities of
citizens in the several States.” These words, already expounded by
judicial interpretation,[224] are now elevated and inspired by the new
spirit breathing into them the breath of a new life, and making them
yet another source of Congressional power for the safeguard of equal
rights.
But I have not done with my friend. I am going to hand him over to be
answered by one of his colored fellow-citizens who has no privilege
on this floor. I put George T. Downing face to face with my excellent
friend, the Senator from Maine. The Senator will find his argument
in one of the papers of the day. I shall read enough to show that he
understands the question, even constitutionally:--
“But I come directly,” says he, “to ‘misconception,’--to
thwarting justice. The Senator”--