of slavery or involuntary servitude, except in punishment for crime.1 It made all former slaves citizens of the United States.2 It will be remembered that several southern States when ratifying this amendment, and notably South Carolina and Florida, expressed the fear that Congress would exercise its power to enforce the article so as to extend the elective franchise to the negro, and to interfere in police regulations of the States.3 But their fears were groundless for no such power was given by the article, as it gave no authority to Congress to usurp the authority of the State governments.*

Who are citizens of the United States was first defined by the Fourteenth Amendment. But persons may be citizens of both the national government and the State government, or of the one without being citizens of the other.5 The term citizen does not include Indians, but an Indian who is taxed and has severed his tribal relations is a citizen. The main purpose of the amendment was to establish the citizenship of the negro, and to protect the privileges and immunities of citizens of the United States from hostile State legislation; therefore, it is a restraint on the States limiting the exercise of their powers which can affect the individual or his property, but the amend

1 People vs. Washington, 28 Cal. 658.

2 United States vs. Rhodes, 1 Abbot, U. S. 28.

3 See ante, pp. 195, 196, 220.

4 U. S. vs. Cruikshank, 92 U. S. 543; 1 Wood, 308; United States vs. Harris, 106 U. S. 629; State vs. Rash, 1 Houston Del. Criminal Reports, 271.

Slaughter House Cases, 16 Wallace, 74; United States vs. Cruikshank, 92 U. S. 543; 1 Woods, 308.

• United States vs. Elm, 23 Int. Rev. Rec. 419.

7 Slaughter House Cases, 16 Wallace, 36.

8 United States vs. Harris, 106 U. S. 629.

9 San Mateo Company vs. Southern Pacific R. R. Co., 8 Sawyer,

ment did not confer the right of citizenship on Chinamen, except such as are born in the United States.1

The amendment though prohibiting abridgment of the privileges of citizens of the United States, does not forbid the abridgment of their privileges as citizens of the States, for it was not intended to invade the rights of the States to regulate the privileges and immunities of their own citizens. For this reason that portion of the Civil Rights Bill of 1866, which attempted to secure to all citizens the right to equal accommodations at inns and similar public places and in public conveyances and at places of amusement, was unconstitutional and not within the power of Congress. It is by this amendment that the States are prohibited from denying to any person within their jurisdiction "the equal protection of the law," by which phrase is signified an equal right to resort to the courts for redress of wrongs, the enforcement of rights and the exemption from unequal burdens or exactions of any kind. Equal protection of this kind is denied when taxation is not uniform and equal and does not require both uniformity in the rate and in the mode of assessment.4

While securing citizenship for the colored race the Fourteenth Amendment did not confer upon that race privileges and immunities not enjoyed by the white race. It gave the negro citizenship, but citizenship does not imply the possession of all political rights," for the elective franchise is not a natural right or immunity. It declared all

1 State vs. Ah Chew, 16 Nevada, 51.

6

2 Ex parte Kinney, 3 Hughes, 1; Green vs. State, 58 Arkansas, 190.

3 Civil Rights Cases, 3 Supreme Ct. Rep., 18, 33; per contra United States Newcommer, 11 Philadelphia, 519.

4 Railroad Tax Cases, 13 Federal Rep., 722; 18 Federal Rep., 385; see also The Income Tax Cases, 158 U. S., 609 (1895). 5 People vs. De La Guerra, 40 California, 311.

• Minor vs. Happersett, 21 Wall., 162; United States vs. Cruikshank, 92 U. S., 542; Van Valkenburg vs. Brown, 43 California, 43.

526

THE GOVERNMENT AND THE INDIVIDUAL.

persons born in the United States to be citizens, but the amendment was not self-executing and did not make the persons for whom it was primarily designed voters.1 It made clear that Congress can legislate in protection of the rights of citizens of the United States only as such citizens, and not as citizens of a State.2

The amendment was not intended to transfer to the National Government the protection of all civil rights or to bring within the jurisdiction of Congress the entire domain of civil rights which had before belonged exclusively to the States. The protection of life and personal liberty in America rests in the States alone. But the provision in the amendment which empowers Congress to enforce it brings within the jurisdiction of the National Government any atrocity, private outrage or intimidation in any form. growing out of the relation between the black and white races, and in case a State does not conform in its laws to the requirements of the amendment, Congress may authorize its enforcement by suitable legislation. The legislation authorized is corrective in character and is such as may be necessary for restraining or correcting the effects of State laws in conflict with the amendment.7 The amendment in its large and comprehensive meaning, therefore, as affecting United States citizenship places the jurisdiction of the citizenship in the hands of the National Government.

5

The Fifteenth Amendment did not confer the right of

1 Spencer vs. Board, 1 McArthur, 169.

2 United States vs. Cruikshank, 92 U. S., 560; 1 Hughes, 536.

3 Slaughter House Cases, 16 Wall., 36.

4 United States vs. Cruikshank, 92 U. S., 542; 1 Woods, 308. 5 Id.

• United States vs. Harris, 106 U. S., 629.

7 Civil Right Cases, 3 Sup. Ct. Rep., 18.

3

suffrage on any person;1 but it invested every citizen of the United States with a new right which Congress is empowered to protect.2 The amendment is expressed in the negative form for reasons which its history, already narrated, discloses. It took from the States authority to discriminate against citizens of the United States on account of race, color or previous condition of servitude, and as the Fourteenth Amendment made colored persons United States citizens, discrimination against them was forbidden. But with the exception of the discrimination on account of race, color or previous condition of servitude, a State may prescribe such restrictions or qualifications for the exercise of the suffrage as it may think best. Thus a State may limit the elective franchise to persons of the male sex or to those who are able to read and write, or who pay a personal or property tax.

At the time of the adoption of the Fifteenth Amendment in 1870, the State constitutions, with few exceptions, limited the right to vote to white males of the age of twentyone years, who had resided for a required period within the State. The Fifteenth Amendment annulled the discriminating word, white, and thus changed the constitutions of northern as well as of southern States. By the obliteration of a long-standing discriminating word, the negro was left to enjoy the same rights as white persons. If a State should adopt a constitutional provision limiting the right to vote exclusively to white persons, the Fifteenth Amendment would act practically to confer the right to

1 Minor vs. Happersett, 21 Wall., 178 (1874); United States vs. Cruikshank, 92 U. S., 555; 1 Woods, 308; United States vs. Reese, 92 U. S., 214; Anthony vs. Haldeman, 7 Kansas, 50; Hedgeman vs. State, 26 Mich., 51.

2 In re Cruikshank and Reese as above.

3 See Chapters IV, V.

4 Van Valkenburg vs. Brown, 43 Cal., 43.

528

ATTITUDE OF PARTIES.

vote on the negro, and Congress has power to protect and enforce this right.1 A vestige of the old discrimination against the negro race may still be found in the constitutions of eight northern and of two border States,2 but for thirty years the now curious, but once discriminating word, white, which remains in those constitutions is made meaningless, and were these States to adopt new constitutions, this last vestige of the old order would disappear. One of the important changes effected by the Fifteenth Amendment consists in its authorization, of Congress to protect citizens in rights which the amendment creates or which are dependent upon it.3

The general character of the later exposition of the law of the Constitution has been well exemplified in the platforms of national parties. In 1868, the Democratic party platform pronounced all the reconstruction acts of Congress "unconstitutional, revolutionary and void," and at the same time the Republicans congratulated the country on the assured success of the reconstruction policy of Congress as shown by the adoption of constitutions in most of the late insurrectionary States "securing equal civil and political rights to all." It was in this platform of 1868, on which Grant and Colfax were nominated by the Republicans, that the words nation and national were for the first time spelled with a capital letter. The Republican platform of 1872, on which Grant was renominated, repeated this spelling of the words, but in the

1 United States vs. Reese, 92 U. S., 214.

2 Wisconsin, 1848; Michigan, 1850; Kentucky, 1850-1890; Ohio and Indiana, 1851; Iowa, 1857; Minnesota, 1858; Oregon, 1859; Nevada, 1864; Maryland, 1867.

• United States vs. Reese, 92 U. S., 214.

4 Democratic Convention, New York, July 4-11, 1868. Republican Convention, Chicago, May 20-21, 1868.

• Republican Convention, Philadelphia, June 5-6, 1872.