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

nothing to do with the
guarantee against that race discrimination commonly referred to in the
bills of complaint as the badges and incidents of slavery. The court
found the Fourteenth Amendment negative rather than direct and
primary because of one of its clauses providing 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 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,