The Journal of Negro History, Volume 6, 1921 | Page 8

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 power, whether expressly given or not, to
secure and protect rights conferred or guaranteed by the
Constitution."[23] Justice Harlan believed then that the doctrines
should not be abandoned when the inquiry was not as to an implied
power to protect the master's rights, but what Congress might, under
powers expressly granted, do for the protection of freedom and the
rights necessarily inhering in a state of freedom.
The Thirteenth Amendment, the court conceded, did more than prohibit
slavery as an institution, resting upon distinctions of race, and upheld
by positive law. The court admitted that it "established and decreed
universal civil freedom throughout the United States." "But did the
freedom thus established," inquired Justice Harlan, "involve more than
exemption from actual slavery? Was nothing more intended than to
forbid one man from owning another as property? Was it the purpose of
the nation simply to destroy the institution and then remit the race,
theretofore held in bondage, to the several States for such protection, in
their civil rights, necessarily growing out of their freedom, as those
States in their discretion might choose to provide? Were the States
against whose protest the institution was destroyed to be left free, so far
as national interference was concerned, to make or allow
discriminations against that race, as such, in the enjoyment of those
fundamental rights which by universal concession, inhere in a state of
freedom?" Justice Harlan considered it indisputable that Congress in
having power to abolish slavery could destroy the burdens and
disabilities remaining as its badges and incidents which constitute its
substance in visible form.
The court in its defense had taken as an illustration that the negative
clause of the Fourteenth Amendment was not direct and primary, that
although the States are prohibited from passing laws to impair the
obligations of contracts this did not mean that Congress could legislate
for the general enforcement of contracts throughout the States.
Discomfitting his brethren on their own ground Harlan said: "A
prohibition upon a State is not a power in Congress or in the national
government. It is simply a denial of power to the State. The much
talked of illustration of impairing the obligation of contracts, therefore,

is not an example of power expressly conferred in contradistinction to
that of this case and is not convincing for this would be a court matter,
not a matter of Congress. The Fourteenth Amendment is the first case
of conferring upon Congress affirmative power by legislation to
enforce an express prohibition on the States. Judicial power was not
specified but the power of Congress. The judicial power could have
acted without such a clause. The Fourteenth Amendment is not merely
a prohibition on State action. It made Negroes citizens of the United
States and of the States. This is decidedly affirmative. This citizenship
may be protected not only by the judicial branch of the government but
by Congressional legislation of a primary or direct character. It is in the
power of Congress to enforce the affirmative as well as the prohibitive
provisions of this article. The acceptance of any doctrine to the
contrary," continued Justice Harlan, "would lead to this anomalous
result: that whereas prior to the amendments, Congress with the
sanction of this court passed the most stringent laws--operating directly
and primarily upon States and their officers and agents, as well as upon
individuals--in vindication of slavery and the right of the master, it may
not now, by legislation of a like primary and direct character, guard,
protect, and secure the freedom established, and the most essential right
of the citizenship granted, by the constitutional amendments."
It did not seem to Justice Harlan that the fact that, by the second clause
of the first section of the Fourteenth Amendment, the States are
expressly prohibited from making or enforcing laws abridging the
rights and immunities of citizens of the United States, furnished any
sufficient reason for upholding or maintaining that the amendment was
intended to deny Congress the power, by general, primary, and direct
legislation, of protecting citizens of the several States, being also
citizens of the United States, against all discrimination, in respect of
their rights as citizens, which is founded on "race, color, or previous
condition of servitude." "Such an interpretation," thought he, "is plainly
repugnant to its fifth section, conferring upon Congress power, by
appropriate legislation, to enforce not merely the provisions containing
prohibitions upon the States, but all of the provisions of the amendment,
including the provisions, express and implied, in the first clause