CHAPTER XI.

FEDERAL SUPERVISION OF STATE ACTIVITIES; THE FOURTEENTH AMENDMENT.

§ 85. The Fourteenth Amendment.

In the chapters which have gone before, the manner in which the Federal Government is secured from interference on the part of the States has been considered. We turn now to a topic which, while closely related to this subject, is yet distinct from it. This topic is the extent of the legal power of the Federal Government to examine state laws and supervise their execution with a view to seeing that they do not infringe in any way upɔn the rights secured to individuals by the federal Constitution. In other words, the question now to be considered is not the maintenance of the supremacy of the Federal Government, but the protection of individuals in the enjoyment of the rights and immunities guaranteed to them by the federal Constitution.

Prior to the adoption of the Fourteenth Amendment in 1868 the laws of the individual States, so long as they related to subjects over which the States had the right of legislation, were not subject to examination in federal courts with a view to ascertaining whether they deprived anyone of life, liberty, or property without due process of law, or denied to anyone equal legal protection. The first nine amendments to the federal Constitution which enumerated the fundamental rights of individuals that might not be violated were, from the beginning, construed to limit not the States but only the Federal Government. Until, therefore, the Fourteenth Amendment was adopted there was, so far as the federal Constitution and laws were concerned, nothing to prevent the several States from enacting laws which denied to their own citizens the equal protection of the laws or deprived them of life, liberty, and property, without due process of law. The only limitations laid upon the States by the Constitution were that they should enact no bills of attainder, or ex post facto

laws, or laws impairing the obligation of contracts. As a matter of fact, indeed, all of the States had by their own Constitutions taken from their legislatures the power to enact laws upon certain specified topics, and forbidden them to violate certain declared principles of justice and right. But the adoption of these constitutional limitations was purely voluntary upon their part.

In 1868, however, as one of the results of the Civil War, the Fourteenth Amendment was adopted, which, after declaring that "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," goes on to provide that, "no State shall make or enforce any law which shall abridge the privileges and 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."

For a number of years after the adoption of this Amendment it was by no means certain that the effect of the above-cited provisions would not be to endow the United States Government with additional powers so great as fundamentally to alter the very nature of the Union itself. There can be no question but that the clauses of the Amendment which we have quoted were easily susceptible of an interpretation that would have given them this result, and that, at the time they were framed and adopted by Congress and ratified by the necessary number of state legislatures, there were very many who believed that they would, and desired that they should, work this revolutionary change, in the American constitutional system. Fortunately, however, as all must now believe, the Supreme Court has been led to give to these words a construction that robbed them of such an effect.

1 See especially the debates attendant upon the passage of the Civil Rights Bill of 1866, the doubts as to the constitutionality of which led to the adoption of the Fourteenth Amendment. See also the dissenting opinion of Justice Harlan in the Civil Rights Cases (109 U. S. 3; 3 Sup. Ct. Rep. 18; 27 L. ed. 835). See also especially Flack, The Adoption of the Fourteenth Amendment.

This the court has been able to do by the principles which it has laid down in the cases which follow.2

§ 86. The Slaughter House Cases.

The famous Slaughter House Cases,3 decided in 1873, grew out of the following facts: The State of Louisiana in the exercise of its "police powers," had passed an act chartering a company, and giving to it the exclusive right to establish and maintain stock-yards and landing places and slaughter houses for the City of New Orleans, and providing that all animals intended for food should be slaughtered there. The plaintiffs in the cases that have since come to be known as the "Slaughter Hous Cases' alleged that this act was unconstitutional as tested by the federal Constitution on the several grounds that it was in viola of the Thirteenth Amendment in that it created an involuntary servitude upon the part of those who were compelled to resort to this privileged company; and that it was in violation of the Fourteenth Amendment in that it deprived persons of liberty and property without due process of law, denied to them the equal protection of the laws, and abridged the privileges and immunities of citizens in the United States. It is only with this last claim that we are now concerned.

As we shall later see, the Fourteenth Amendment has been construed to give to the federal courts the power of examining whether, in the exercise of their ordinary police and other powers, the States have denied to anyone due process of law or the equality of the laws, but the claim that the rights and immunities which were alleged to have been violated by the Louisiana statute were ones coming within the scope of the phrase "privileges or im

2 In the following pages there is not attempted a general examination of the Fourteenth Amendment, but only a consideration of the extent to which this addition to the Constitution may be said to have altered the general character of our constitutional system, especially with reference to the extent to which either Congress has been granted an increased legislative power, or the Federal Government endowed with a general supervisory jurisdiction over state legislation.

316 Wall. 36; 21 L. ed. 394.

munities of citizens of the United States " as used in the Fourteenth Amendment, raised the fundamental question whether or not, by that Amendment, the entire so-called "police powers" of the States had been placed within the direct legislative definition and control of Congress. This would have resulted from the fact that by the Amendment Congress is given authority to enforce its provisions by appropriate legislation. If, therefore, such a right as was here alleged to have been violated could be held to be a federal right it would be within the power of Congress to define it, and all other similar rights, and to impose penalties upon their violation, and thus to deprive the States of their entire police powers. These police powers, it is scarcely necessary to observe, cover almost the entire field of private rights, personal and proprietary, including, as they do, the general authority of thetate to legislate regarding the social, economic, and moral welfare of its citizens. To have granted the contention of the plaintiffs would thus have made Congress, instead of the state legislatures, the possible source of the great body of private laws by which the citizen is governed. It is, therefore, not surprising that the court in its majority opinion should have said: "We do not conceal from ourselves the great responsibility which devolves upon us. No questions so far reaching and pervading in their consequences, so profoundly interesting to the people of this country, and so important in their bearing upon the relations of the United States and of the several States to each other, and to the citizens of the States and of the United States, have been before this court during the official life of any of its present members."

The argument of the plaintiffs which found acceptance in the opinions rendered by the minority of the court was that the individual as a free man and citizen of a State, had, before the adop tion of the Amendment, certain fundamental rights, privileges, and immunities, which were determined by state statutes and the general principles of the common law, and that by that Amendment the citizen became primarily a citizen of the United States, and only secondarily, by residence, a citizen of a particular State

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of the Union, and that, therefore, these fundamental rights, privileges, and immunities which formerly belonged to him as a citizen of the State in which he lived now became his as a citizen of the United States, and, as such, no longer subject to abridgement by the States. Only by this interpretation, it was argued, could the clause of the Amendment which we are considering, be given any force whatever. Thus Justice Field, in his dissenting opinion, argued: "The Amendment does not attempt to confer any new privileges or immunities upon citizens, or to enumerate or define those already existing. It assumes that there are such privileges and immunities which belong of right to citizens as such, and ordains that they shall not be abridged by ste legislation. If this inhibition has no reference to privileges munities of this character, but only refers privileges and immunities as were before its adoption specially designated in the Constitution or necessarily implied as belonging to citizens of the United States, it was a vain and idle enactment, which accomplished nothing, and most unnecessarily excited Congress and the people on its passage. With privileges and immunities thus designated no State could ever have interfered by its laws, and no new constitutional provision was required to inhibit such interference. The supremacy of the Constitution and the laws of the United States always controlled any state legislation of that character. But if the Amendment refers to the natural and inalienable rights which belong to all citizens, the inhibition has a profound significance and consequence.""

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4 As illustrative of, and as a partial enumeration of these federal privileges and immunities, Justice Bradley quoted the language used by Justice Washington in Corfield v. Coryell (4 Wash. C. C. 380) in interpreting the article of the Constitution which provides that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States. "The inquiry is," said the Justice in that case, "what are the privileges and immunities of citizens in the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are in their nature fundamental; which belong of right to the citizens of all free governments, and which have at all times been enjoyed by the citizens of the several States which compose this Union from the time of their becoming free, independent and sovereign. What these fundamental privileges are it