The Journal of Negro History, Volume 6, 1921 | Page 7

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 and property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." The court was too evasive or too stupid to observe that the first clause of this amendment was an affirmation to the effect that all persons born and naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside. In other words, the court held that if there is one negative clause in a paragraph, the whole paragraph is a negation. Such sophistry deserves the condemnation of all fairminded people, when one must conclude that any person even without formal education, if he has heard the English language spoken and is of sound mind, would know better than to interpret a law so unreasonably.
In declaring this act unconstitutional the Supreme Court of the United States violated one of its own important principles of interpretation to the effect that this duty is such a delicate one, that the court in declaring a statute of Congress invalid must do so with caution, reluctance and hesitation and never until the duty becomes manifestly imperative. In the decision of Fletcher v. Peck,[21] the court said that whether the legislative department of the government has transcended the limits of its constitutional power is at all times a question of much delicacy, which seldom, if ever, is to be decided in the affirmative, in a doubtful case. The position between the Constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other. In the Sinking Fund Cases[22] the court said: "When required in the regular course of judicial proceedings to declare an act of Congress void if not within the legislative power of the United States, this declaration should never be made except in a clear case. Every possible presumption is in favor of the validity of a statute, and this continues until the contrary is shown beyond a rational doubt. One branch of the government cannot encroach on the domain of another without danger. The safety of our institutions depends in no small degree on a strict observance of this salutary rule." And this is exactly what happened. The judiciary here assumed the function of the legislative department. Not even a casual reader on examining these laws and the Constitution can feel that the court in this case felt such a clear and strong conviction as to the invalidity of this constitutional legislation when that tribunal, as its records show, had under different circumstances before the Civil War held a doctrine decidedly to the contrary.
Mr. Justice Harlan, therefore, dissented. He considered the opinion of the court narrow, as the substance and spirit were sacrificed by a subtle and ingenious verbal criticism. Justice Harlan believed, "that it is not the words of the law but the internal sense of it that makes the law; the letter of the law is the body, the sense and reason of the law the soul." "Constitutional provisions adopted in the interest of liberty," said Justice Harlan, "and for the purpose of securing, through national legislation, if need be, rights inhering in a state of freedom, and belonging to American citizenship, have been so construed as to defeat the end the people desire to accomplish, which they attempted to accomplish, and which they supposed they had accomplished, by changes in their fundamental law."
The court, according to Justice Harlan, although he did not mean to say that the determination in this case should have been materially controlled by considerations of mere expediency or policy, had departed from the familiar rule requiring that the purpose of the law or Constitution and the objects to be accomplished by any grant are often the most important in reaching real intent just as the debates in the convention of 1787 and the discussions in the Federalist and in the ratifying conventions of the States have often been referred to as throwing important light on clauses in the Constitution seeming to show ambiguity. The debates on the war amendment, when they were proposed and ratified, were thoroughly expounded before the court in bringing before that tribunal the intention of the members of Congress, by which the court, according to a well established principle of interpretation, should have been influenced in construing the statute in question.
The court held that legislation for the enforcement of the Thirteenth Amendment is direct and primary "but to what specific ends may it be directed?" inquired Justice Harlan. The court "had uniformly held that national government has the