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tal wrong which was intended to be remedied. And the remedy to be provided must necessarily be predicated upon the wrong. It must assume that in the cases provided for, the evil or wrong actually committed rests upon some state law or state authority for its excuse and perpetration." 78

In one of the cases cited above in this section, involving the power of congress to legislate under the late amendments, and to define, punish and repress crime within the states, Chief Justice Waite, delivering the opinion of the court, said:

"The rights of life and personal liberty are natural rights of man. To secure these rights,' says the Declaration of Independence, 'governments are instituted among men, deriving their just powers from the consent of the governed. The very highest duty of the states, when they entered into the Union under the constitution, was to protect all persons within their boundaries in the enjoyment of these 'unalienable rights with which they were endowed by their Creator.' Sovereignty, for this purpose, rests alone with the states. * The fourteenth amendment prohibits a state from denying to any person within its jurisdiction the equal protection of the laws; but this does not, any more than the one which precedes it and which we have just considered, add anything to the rights which one citizen has under the constitution against another. The equality of the rights of citizens is a principle of republicanism. Every republican government is in duty bound to protect all its citizens in the enjoyment of this principle, if within its power. That duty was originally assumed by the states; and it still remains there. The only obligation resting upon the United States is to see that the states do not deny the right. This the amendment guaranties, but no more. The power of the national government is limited to this guaranty.

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§ 207. Same Same Same Same Protection of the elective franchise. The decisions of the supreme court of the United States upon the right of suffrage, since the adoption of the thirteenth, fourteenth and fifteenth amendments, have established the following propositions:

(1) Neither the constitution of the United States as originally adopted, nor any of the amendments thereto, has con

78 Civil Rights Cases, 109 U. S. 3, 62 (27:841).

79 United States v. Cruikshanks, 92 U. S. 544 (23:588).

ferred the right of suffrage upon any one. (2) The United

States have no voters of their own creation in the states. (3) The right of suffrage is not a necessary attribute of national citizenship. (4) The fifteenth amendment has invested the citizens of the United States with a new constitutional right, namely: exemption from discrimination in the exercise of the elective franchise on account of race, color or previous condition of servitude. (5) This exemption from discrimination in the exercise of the elective franchise on account of race, color or previous condition of servitude, is a necessary attribute of national citizenship. (6) The right to vote in the states comes from the states; the right to vote is conferred by the state, to be exercised as the state may direct, and upon such terms as to it may seem proper; and in granting the right the state may determine what class or classes of its citizens shall vote, and prescribe the qualifications of electors: provided, always, that no discrimination be made against persons or classes of persons on account of race, color or previous condition of servitude. (7) The first section of the fifteenth amendment, which declares that "the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color or previous condition of servitude," is a prohibition upon the government of the United States and upon all the states; the provision is a limitation upon state action, and also upon the action of the federal government, and has no reference to the action of private individuals: and, therefore, congress is without power to enact general legislation framed to protect from invasion by private persons the purity of the ballot and the right to vote.80

so James v. Bowman, 190 U. S. 127, 142 (47:979); Minor v. Hap persett, 21 Wall. 178 (22:631); United States v. Cruikshank, 92 U. S. 542, 569 (23:588); United States v. Rees, 92 U. S. 214 (23: 563); Pope v. Williams, 193 U. S. 621, 634 (48:817); Lackey v. United States, 46 C. C. A. 189; Karen v. United States, 57 C. C. A. 486; United States v. Harris, 106 U. S. 629 (27:290). The first, third,

fourth and fifth sections of the "Enforcement Act," (Act, May 31, 1870, 16 U. S. Stat. at L. 140), were intended to carry into effect the provisions of the fifteenth amendment; but the third, fourth and fifth sections of the act have all been held unconstitutional; these invalid sections constitute secs. 2007, 2008, 5506, 5507 of the U. S. Rev. Stat. (see authorities above cited in this section).

§ 208. Same Power of the states to maintain their own judicial procedure.-The states have full control over the procedure in their own courts, both in civil and criminal cases, subject only to the qualification that such procedure must not work a denial of fundamental rights or conflict with specific and applicable provisions of the federal constitution; they, the states, are not tied down by any provision of the federal constitution to the practice and procedure which existed at the common law.81 The first ten amendments to the federal constitution contain no restrictions on the powers of the states, but were intended to operate solely on the federal government; and the adoption of the fourteenth amendment did not. have the effect to impose upon the states the restraints and limitations in regard to judicial procedure contained in the fourth, fifth, sixth, seventh and eighth amendments to the constitution of the United States.83

82

(b) THE INTENT AND APPLICATION OF THE LATE AMENDMENTS: WORKED OUT BY THE "GRADUAL PROCESS OF JUDICIAL INCLUSION AND EXCLUSION."

§ 209. Judicial method of constitutional construction-Early constitutional history.--In the great cases carried to the supreme court of the United States in the early period of our constitutional history, the contentions of the respective parties brought under judicial examination the nature of the complex system of government established by the constitution and the distribution of governmental powers under it, and not infre

81 Brown v. New Jersey, 175 U. S. 172, 177 (44:119) and authorities there cited; Maxwell v. Dow, 176 U. S. 581 (44:597) and authorities there cited; West v. Louisiana, 194 U. S. 258-267 (48:965).

82 Barron v. Baltimore, 7 Pet. 243 (8:672); Fox v. Ohio, 5 How. 410 (12:213); Twitchell v. Pennsylvania, 7 Wall. 231 (19:223); United States v. Cruikshank, 92 U. S. 542 (23:588); Spies v. Illinois, 123 U. S. 131 (31:80); Re Sawyer, 124 U. S. 200 (31:402); Eilenbecker v. Plymouth County Dist. Ct., 134 U. S. 31 (33:801);

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Davis v. Texas, 139 U. S. 651 (35: 300); McElvaine v. Brush, 142 U. S. 155 (35:971); Thorrington v. Montgomery, 147 U. S. 490 (37: 254); Miller v. Texas, 153 U. S. 535 (38:812); Brown v. New Jersey, 175 U. S. 172 (44:119); Holden v. Hardy, 169 U. S. 366 (42: 780); Maxwell v. Dow, 176 U. S. 581 (44:597).

83 Maxwell v. Dow, 176 U. S. 581 (44:597); Brown v. New Jersey, 175 U. S. 172, 177 (44:119); West v. Louisiana, 194 U. S. 258, 267 (48% 965).

quently put in issue the most vital powers of the federal government. Those cases, although prosecuted by private persons to protect private rights, involved questions of national importance, made so by the contentions of the parties and their counsel; they involved the nature and extent of the respective powers of the state and federal governments, and the question of supremacy in case of a conflict; frequently the decision of the case as to the private right depended upon the question whether the exercise of this or that power belonged to the state or federal government; the doctrine of ""strict construction,' of all grants of power to the federal government was vehemently insisted upon. In this situation, while the cases called for a decision upon the question of private rights, the national interest in the result was of overshadowing importance; the domestic tranquility of the country required that the principles of the government should be settled by judicial construction of the constitution as speedily as possible, and in that emergency the supreme court seems to have adopted the following methods of constitutional construction:

The court entered upon a consideration (1) of the theory and nature of the dual or complex system of government established by the constitution; (2) a consideration of the classes, nature and extent of the powers conferred upon the general government, and the means and methods of their execution, and in that connection the doctrine of "implied powers," and that clause of the constitution which grants to congress power "to make all laws which shall be necessary and proper for carrying into execution" all the express powers of the government, received full consideration and were given full effect; (3) a consideration of the classes, nature and extent of the powers reserved to the states; (4) a consideration of the lines of demarkation between federal and state power; (5) a consideration of the relations of the state and federal governments toward each other, and the relations of both governments to the people, and the supremacy of the general government and its right of ultimate decision and the means thereof, in all cases of conflict between state and federal authority; and (6) then followed an examination, construction and application of the particular constitutional provision involved, to the case before the court. The court seems to have proceeded upon the assumption that, in view of the character of the con

tentions made by the respective parties and their counsel, an exposition, examination and understanding of the constitution as a whole, were necessary to an exposition and application of its different provisions, and the opinions of the court, were, necessarily, a discussion and exposition of the government, exhibiting general definitions, and a delimitation of state and federal powers, general rules of constitutional construction, and a statement of the reasoning upon which the decision of the court was founded. It is not by any means contended that the court laid down any formula as to its method of construction; but the process above indicated was, substantially, the settled habit of the judicial mind in constitutional construction during the early period of our constitutional history, and even as long as Chief Justice Taney remained on the bench.$5

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§ 210. Same-Modern method-"Judicial inclusion and exclusion."-Notwithstanding the late amendments impose important limitations upon the states, securing valuable rights against state invasion, and these limitations are being constantly invoked, upon writ of error from the supreme court of the United States to the highest courts of the state, for the purpose of avoiding state action, and setting aside state legislation, yet, nevertheless, the court has steadily refused to announce any definition of the rights so secured, or to lay down. any general rules for the construction and application of the provisions of the late amendments, and has announced that it will ascertain the intent and application of the different provisions of the amendments "by the gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require, with the reasoning on which such decisions may be founded.'' 86

84 Martin v. Hunter's Lessee, 1 Wheat. 304, 382 (4:97); Cohens v. Virginia, 6 Wheat. 264, 448 (5: 252); McCulloch v. Maryland, Wheat. 316, 434 (4:579); Gibbons v. Ogden, 9 Wheat. 1, 240 (6:23); Brown v. Maryland, 12 Wheat. 419 (6:678); New York v. Miln, 11 Pet. 102 (9:648); License Cases, 5 How. 505 (12:256); Passenger Cases, 7 How. 283, 573 (12:702).

85 Dred Scott Case, 19 How. 393 (15:691); Ableman v. Booth, 21 How. 506, 526 (16:169).

86 Davidson v. New Orleans, 96 U. S. 97, 108 (24:616); Hargar v. Reclamation Dist. 111 U. S. 707 (28:572); Mo. Pac. Ry. Co. v. Humes, 115 U. S. 512, 524 (29: 463); Oriental Ins. Co. v. Daggs, 172 U. S. 557, 568 (43:552).

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