Shelby County v.

Holder: An Historical Exploration of the Fifteenth Amendment and its Enforcement Power A ConSource Research Project
The mission of The Constitutional Sources Project is to increase understanding, facilitate research, and encourage discussion of the United States Constitution by connecting individualsincluding students, teachers, lawyers, and judgeswith the documentary history of its creation, ratification, and amendment.

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I. The Constitution and The Right to Vote (A) Text of the Constitution (1) Citation: U.S. CONST. amend XIV. Background: The Fourteenth Amendment was passed in July of 1866 by the Thirty-ninth Congress. It became part of the Constitution on July 9, 1868, when 28 of the 37 states ratified the amendment. The Fourteenth Amendment, like the Civil Rights Act of 1866, was drafted by Congressional Republicans as part of a multi-faceted effort to combat Black Codes, statutes passed by Southern states that limited the rights of African Americans, resurrecting what many viewed as a de facto system of slavery. The Amendment contains one provision, Section 2, that addresses state restrictions on the right to vote, but does not empower Congress to directly regulate suffrage in the States or to protect the voting rights of African Americans. Instead, Section 2 of the Fourteenth Amendment imposes a direct penaltya reduction in federal Congressional representationfor states that deny suffrage rights to male inhabitants above the age of twenty-one. The perceived failure of Section 2 to address the denial of suffrage rights to African Americans, in both the north and south, led to calls by many Republican members of congress for the enactment of the Fifteenth Amendment. For more information on the Fourteenth Amendment, see 14th AMENDMENT TO THE U.S. CONSTITUTION. Text: SECTION 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. SECTION 2. Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state. SECTION 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

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SECTION 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void. SECTION 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. (2) Citation: U.S. CONST. amend XV. Background: Congress passed the Fifteenth Amendment on February 26, 1869. On March 30, 1870, the Fifteenth Amendment became part of the Constitution. In the process of drafting the Amendment, members of congress produced three different versions of the text. The first and most moderate proposal prohibited states from denying citizens the vote because of their race, color, or previous status as a slave. The second version prohibited states from denying the vote to anyone based on literacy, property, or circumstances of birtha controversial option, even among congressional Republicans, many of whom supported literacy qualifications to limit the electoral strength of immigrants in their states. The third, and most controversial version, would have prohibited all restrictions on the right to vote for male citizens above the age of twentyone. Determined to achieve ratification, in a sharply divided nation, the drafters ultimately settled on the first and more modest version of the amendment to present to states for ratification. For more information about the Fifteenth Amendment see 15th AMENDMENT TO THE CONSTITUTION. Text: SECTION 1. 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. SECTION 2. The Congress shall have power to enforce this article by appropriate legislation. (B) Statutes (1) Citation: An Act to regulate the elective Franchise in the District of Columbia, 14 Stat. 375 (January 8, 1867). Background: In the period between the ratification of the Fourteenth Amendment and the passage of the Fifteenth Amendment, Congress extended, for the first time in United States history, the right to vote to African-Americans by a series of statutes. The first such act, The District of Columbia Franchise Act, passed by the Thirty-ninth Congress on January 8, 1867, guaranteed the right to vote to most male citizens over the age of twenty-one in the District of Columbia, without regard to race or color. Exceptions were made for those under guardianship, those convicted of major crimes, and those who had voluntarily sheltered Confederate troops during the Civil War. President Johnson vetoed the law, but congress overrode the veto and it passed into law. Text: Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That, from and after the passage of this act, each and every male person,

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excepting paupers and persons under guardianship, of the age of twenty-one years and upwards, who has not been convicted of any infamous crime or offence, and excepting persons who may have voluntarily given aid and comfort to the rebels in the late rebellion, and who shall have been born or naturalized in the United States, and who shall have resided in the said District [of Columbia] for the period of one year, and three months in the ward or election precinct in which he shall offer to vote, next preceding any election therein, shall be entitled to the elective franchise, and shall be deemed an elector and entitled to vote at any election in said District, without any distinction on account of race or color. (2) Citation: An Act to regulate the elective Franchise in the Territories of the United States (the Territorial Suffrage Act), 14 Stat. 379 (January 25, 1867). Background: After the passage of the District of Columbia Suffrage Act, and the petition of a group of Colorado Freedmen, the Thirty-ninth Congress passed what has become known as the Territorial Suffrage Act. The Act prohibited territorial governments from denying the elective franchise on account of race or previous condition of servitude. Like the District of Columbia Suffrage Act, the Act became law after congress overrode President Johnsons veto. The language of the Territorial Suffrage Act is similar to that found in Section 1 of the Fifteenth Amendment. Text: Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That from and after the passage of this act, there shall be no denial of the elective franchise in any of the Territories of the United States, now, or hereafter to be organized, to any citizen thereof, on account of race, color, or previous condition of servitude: and all acts or parts of acts, either of Congress or the Legislative Assemblies of said Territories, inconsistent with the provision of this act are hereby declare null and void. (3) Citation: An Act to provide for the more efficient government of the rebel states (the First Reconstruction Act), 14 Stat. 428-29 (March 2, 1867). Background: The First Reconstruction Act, also known as the Military Reconstruction Act, became law on March 2, 1867 over President Andrew Johnsons veto. The act applied to all ex-Confederate states in the south, except Tennessee, which had already ratified the Fourteenth Amendment. It split the states into five military districts, each under the control of a military general who was tasked with maintaining and protecting peace, order, life and liberty. The Act also demanded the drafting of new state constitutions, the provision of equal rights for all citizens, and the ratification of the Fourteenth Amendment. One of the more contentious aspects of the Act was found in Section 5, which mandated that all newly drafted state constitutions provide for the enfranchisement of all male citizens, except those who participated in the rebellion or otherwise committed crimes recognized as felonies at common law. Text: Sec. 5. That when the people of any one of said rebel States shall have formed a constitution of government in conformity with the Constitution of the United States in all respects, framed by a convention of delegates elected by the male citizens of said State twenty-one years old and upward, of whatever race, color, or previous condition, who have been resident in said State for one year previous to the day of such election, except such as may be disfranchised for participation in the rebellion, or for felony at common law, and when such constitution shall provide that the elective franchise shall be enjoyed by all such persons as have the qualifications herein stated for electors of delegates, and when such constitution shall be ratified by a majority of the persons voting on the question of [4]

ratification who are qualified as electors for delegates, and when such constitution shall have been submitted to Congress for examination and approval, and Congress shall have approved the same, and when said State, by a vote of its legislature elected under said constitution, shall have adopted the amendment to the Constitution of the United States, proposed by the Thirty-Ninth Congress, and known as article fourteen, and when said article shall have become a part of the Constitution of the United States, said State shall be declared entitled to representation in Congress, and Senators and Representatives shall be admitted therefrom on their taking the oaths prescribed by law, and then and thereafter the preceding sections of this act shall be inoperative in said State: Provided, That no person excluded from the privilege of holding office by said proposed amendment to the Constitution of the United States shall be eligible to election as a member of the convention to frame a constitution for any of said rebel States, nor shall any such person vote for members of such convention. Sec. 6. That until the people of said rebel states shall be by law admitted to representation in the Congress of the United States, any civil governments which may exist therein shall be deemed provisional only, and in all respects subject to the paramount authority of the United States at any time to abolish, modify, control, or supersede the same; and in all elections to any office under such provisional governments all persons shall be entitled to vote, and none others, who are entitled to vote under the provisions of the fifth section of this act; and no person shall be eligible to any office under any such provisional governments who would be disqualified from holding office under the provisions of the third article of said constitutional amendment. (4) Citation: E.g., An Act to admit the State of Arkansas to Representation in Congress, 15 Stat. 72 (June 20, 1868). Background: The Act to admit the State of Arkansas to Representation in Congress is a representative example of the Acts of June 22 to 25, 1868, by which seven states (Arkansas, North Carolina, South Carolina, Louisiana, Georgia, Alabama, and Florida) were admitted to the Union upon the fundamental condition that the constitutions of these states would never be altered to deprive enfranchised former slaves of the right to vote. The bills were passed over President Johnsons veto. Radical Republican John Bingham, principle architect of the Fourteenth Amendment, later questioned the binding force of such conditions, noting that the American system of government is a total failure if the people cannot be instructed with the right of altering and amending their constitutions of government at their pleasure, subject to the general limitations of the Federal Constitution. CONG. GLOBE, 40TH CONG., 2D Sess. 2211 (March 28, 1868) (Remarks of Representative Bingham). Binghams concerns would later drive him and others to push for the passage of the Fifteenth Amendment, in order to ensure that individuals within each state would not be disenfranchised on the basis of race or previous condition of servitude. Text: WHEREAS the people of Arkansas, in pursuance of the provisions of an act entitled An act for the more efficient government of the rebel States, passed March second, eighteen hundred and sixty-seven, and the acts supplementary thereto, have framed and adopted a constitution of State government, which is republican, and the legislature of said State has duly ratified the amendment to the Constitution of the United States proposed by the Thirty-ninth Congress, and known as article fourteen: Therefore, Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the State of Arkansas is entitled and admitted to representation in Congress [5]

as one of the States of the Union upon the following fundamental condition: That the constitution of Arkansas shall never be so amended or changed as to deprive any citizen or class of citizens of the United States of the right to vote who are entitled to vote by the constitution herein recognized, except as a punishment for such crimes as are now felonies at common law, whereof they shall have been duly convicted, under laws equally applicable to all the inhabitants of said States: Provided, That any alteration of said constitution prospective in its effect may be made in regard to the time and place of residence of voters. (C) Founding-era Materials (1) Citation: James Madison, Note to Speech on the Right of Suffrage, in Notes of Debates in the Federal Convention (August 7, 1787) (1821), reprinted in 5 DOCUMENTARY HISTORY OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA 440-49 (Washington, DC, 1901-05) (emphasis in original). Background: During the Thirty-ninth Congress, Senator Jacob M. Howard, a Radical Republican from Michigan who worked closely with Abraham Lincoln to draft and pass the Thirteenth Amendment, quoted Madisons 1787 Constitutional Convention notes to support a right of suffrage for African Americans. After quoting the below excerpted quote, he asked the following question: Now, apply that great principle as broadly as it is laid down by Mr. Madison on the page from which I have read, and how can any man of true republican feeling, attached to the essential principles of our system of government refuse the right of suffrage to the whole negro population as a class? CONG. GLOBE, 39TH CONG., 1ST SESS. 2767 (1866) (statement of Senator Howard). While Madisons language appears broad and sweeping, it is worth noting that his discussion of the universal right of suffrage was couched in a larger debate over property qualifications for voting, which Madison ultimately supported. Text: Under every view of the subject, it seems indispensable that the Mass of Citizens should not be without a voice, in making the laws which they are to obey, & in chusing [sic] the Magistrates, who are to administer them, and if the only alternative be between an equal & universal right of suffrage for each branch of the Govt. and a confinement of the entire right to a part of the Citizens, it is better that those having the greater interest at stake namely that of property & persons both, should be deprived of half their share in the Govt.; than, that those having the lesser interest, that of personal rights only, should be deprived of the whole. (D) Legislative Record (1) Citation: CONG. GLOBE, 39TH CONG., 1ST SESS. 91 (December 20, 1865) (Remarks of Senator Sumner) (emphasis in original). Background: Senator Charles Sumner, a Radical Republican and staunch abolitionist, took the floor of the Senate to resume discussion on a bill introduced by his colleague Senator Henry Wilson to maintain the freedom of the inhabitants in the States declared in insurrection and rebellion by the Proclamation of the President of the first of July, 1862. Wilsons proposed bill, if passed, would effectively nullify all state laws making distinctions on account of race or color. Sumner here declares that it is the duty of the national government, and not the recalcitrant states, composed of former slaveowners, to maintain and preserve the life and liberty of those freed by the Emancipation Proclamation. [6]

Text: All must admit that the bill of my colleague is excellent in purpose. It proposes nothing less than to establish Equality before the Law, at least so far as civil rights are concerned, in the rebel States. This is done simply to carry out and maintain the Proclamation of Emancipation, by which this Republic is solemnly pledged to maintain the emancipated slave in his freedom. Such is our pledge: and the Executive Government of the United States, including the military and naval authority thereof, will recognize and maintain the freedom of such persons. This pledge is without any limitation in space or time. It is as extended and as immortal as the Republic itself. Does anybody call it vain words? I trust not. To that pledge we are solemnly bound. Wherever our flag floats as long as time endures we must see that it is sacredly observed. But the performance of that pledge cannot be intrusted [sic] to another; least of all, can it be intrusted [sic] to the old slave-masters, embittered against their slaves. It must be performed by the national Government. The power that gave freedom must see that this freedom is maintained. (2) Citation: CONG. GLOBE, 39TH CONG., 1ST SESS. 1256 (March 8, 1866) (Statement of Senator Wilson). Background: Senator Henry Wilson of Massachusetts, a supporter of the Radical Republican reconstruction program, responds here to a question raised by Senator Yates, asking whether the [Fourteenth Amendment] permit[s] the rebellious States to exclude from the right of voting and to disfranchise entirely the freedmen? Wilson answers in the negative, pointing to Section 2s penalty provision. In giving his answer, he draws attention to the chief limitation of Section 2 of the Fourteenth Amendment that its language leaves considerable discretion in the hands of the state, which would ultimately permit them to limit the exercise of the franchise by freedmen and others. This deficiency ultimately leads Wilson and his Republican colleagues to push for the passage of a suffrage amendment during the Fortieth and Forty-first congresses. Text: I answer emphatically, no! In my judgmentand I have tried very hard to think the other way, and have heard and read a good deal on that subjectthis amendment permits nothing, nothing whatever. I have never seen or heard or read anything yet that convinces me that the adoption of the constitutional amendment making free these people gave the Congress of the United States any power to settle the question of suffrage in Pennsylvania, Ohio, Indiana, or anywhere else. **** I will answer the Senator by saying that I think this amendment leaves the matter with the States just precisely as it is now; there is no implication in it, no compromise in it, no surrender by this Government of any power whatever. This amendment does not touch the question of suffrage at all; this amendment simply proposes a penalty for denying to freemen the right of suffrage. It proposes that free persons, as now, shall continue to be the basis of representation; but that if any portion of them, on account of color or race, are denied, in any State, the rights of suffrage, they shall not be

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counted in the basis of representation. If it is trueand who can doubt itthat the States possess the power of prescribing the qualifications of electors, how can it be maintained that by implication this amendment concedes to the States the power of denying the right of suffrage? This amendment concedes nothing whatever. It yields nothings whatever of the powers now possessed by the Federal Government; but it does say to every States, If you deny suffrage to any man on account of color or race the whole of that class or race shall be excluded from the basis of representation. There is no compromise in this, no concession, no surrender of any rights now possessed by the Government. (3) Citation: CONG. GLOBE, 39TH CONG., 1ST SESS. 353 (January 22, 1866) (Statement of Rep. Rogers). Background: Representative Andrew Rogers of New Jersey, a Democrat who served on the Joint Committee of Reconstruction, in an attempt to dissuade his colleagues from passing broader constitutional language securing the right to vote, describes here what he views as the Fourteenth Amendments devils bargain. In order for states to secure their rightful representation in congress, they must allow unqualified suffrage for freedmen. Ultimately, Rogers and his fellow Democrats fail to convince their Republican colleagues that Section 2 of the Fourteenth Amendment adequately safeguarded African American voting rights in the states. Text: This proviso says: That whenever the elective franchise shall be denied or abridged in any State on account of race or color, all persons of such race or color shall be excluded from the basis of representation. What does the word abridge mean? It means that if the State of Kentucky, South Carolina, or New Jersey should see fit to allow its colored population the right of suffrage upon a qualification based upon property, or intelligence, or any other qualification which they did not impose upon the white people, each one of those States would be deprived of representation for every colored man, woman, and child in that State. **** Why, sir, this will driveand this is the only object of the propositionevery State in this Union, except where the negroes are in the majority, to allow to the negroes within the States unqualified suffrage to save them from the penalty annexed to their refusal to concur in this dogma of the party in power, unqualified negro suffrage. The only object, and the only effect of the bill are to induce the States, in order to secure their rightful representation on this floor, to allow to the negro unqualified suffrage, without any condition or qualification, without regard to the degree of intelligence or education which he may possess. The State that attempts to require any qualifications of one single negro to vote will, under this amendment, be deprived of representation for every man, woman, and child of the color or race of the person who may have qualified suffrage unless the same conditions are imposed upon white people.

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(4) Citation: CONG. GLOBE, 40TH CONG., 3D SESS. 727 (January 29, 1869) (statement of Rep. Boutwell) (emphasis added). Background: As consensus emerged, at least amongst Republicans, over the Fourteenth Amendments inability to address the denial of African American suffrage in all states north and south the discussion in congress shifted to the drafting and passage of a new amendment. As described above, three proposals for a Suffrage Amendment were made. Here, Representative George Boutwell from Massachusetts, a prominent abolitionist and champion of African American suffrage, discusses the virtues of settling on a more modestly phrased amendment, one that would protect against discrimination on the basis of race, color, or previous condition of servitude rather than affirmatively granting a universal right of suffrage. Text: What [Mr. Bingham] has said only adds force to the suggestion I made, that the amendment proposed by the gentleman from Ohio, if referred to the State Legislatures, will be met by [a number of] difficulties; and although I should be willing to strike down all educational or property tests, and all possibility of their being established anywhere, the probability is that the amendment which we are discussing, if submitted substantially as it came from the committee, will be stronger before the people, and that if we should attempt to grasp at too much we shall lose the whole. I believe that if we adhere to the proposition to protect the people of this country against distinction on account of race, color, or previous condition of slavery we undertake all that it is probably safe for us to undertake now. (5) Citation: CONG. GLOBE, 40TH CONG., 3D SESS. 862 (February 4, 1869) (Statement of Senator Warner). Background: Senator Willard Warner, elected to the Senate to represent Alabama, after the states readmission to the Union, discusses the limitations of the more modest phrasing of the suffrage amendment supported by Boutwell and others, and later codified in the Fifteenth Amendment itself. Disappointed by what he views as major shortcomings in the proposed constitutional text, Warner asks, Is this the Dead sea fruit which we are to gather from the plantings of a hundred years? Text: Now, what are the words proposed by the committee to be put into the Constitution to settle this vital question [of suffrage]? They are as follows: No State shall deny or abridge the right of its citizens to vote and hold office on account of race, color, or previous condition. **** Let us examine the force and scope of this provision. First, it does not determine who shall vote and hold office. Secondly, it does not protect any class of citizens against disfranchisement or disqualification. It simply and only provides that certain classes indicated shall not be disfranchised or disqualified for certain reasons, namely, race, color, or condition. For any other reason any State may deprive any portion of its citizens of all share in the Government. The animus of this amendment is a desire to protect and enfranchise the colored citizens of the country;

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yet, under it and without any violation if its letter or spirit, nine tenths of them might be prevented from voting and holding office by the requirement on the part of the States or of the United States of an intelligence or property qualification. Is this the Dead sea fruit which we are to gather from the plantings of a hundred years? Is this to be the sum of the triumph of the grand struggle of a century past in this country for equal rights, a struggle whose pathway is marked by the graves of unnumbered martyrs, and whose culmination rocked the Republic to its base and reddened a thousand fields with the blood of its best sons? (6) Citation: CONG. GLOBE, 40TH CONG., 3D SESS. 863 (February 4, 1869) (Statement of Senator Morton). Background: In this speech, Senator H.P.T. Morton, a stalwart ally of Abraham Lincoln and a Radical Republican, concedes that the Fifteenth Amendment, as drafted, might allow states to disenfranchise citizens on any basis other than race, color, and previous condition of servitude. Warner and Mortons discussions of the suffrage amendments limitations are relevant to later discussions of the Enforcement Act of 1870, which set out to enforce Section 1 of the Fifteenth Amendment. Text: The amendment of our committee is: The right of citizen of the United States to vote and hold office shall not be denied or abridged by the United States, or any State, on account of race, color, or previous condition of servitude. It will be observed that this language admits or recognizes that the whole power over the question of suffrage is vested in the several States except as it shall be limited by this amendment. It tacitly concedes that the States may disfranchise the colored people or any other class of people for other reasons save and except those mentioned in the amendment. They cannot be disfranchised by reason of race, color, or previous condition of servitude. In other words, it leaves all the existing irregularities and incongruities in suffrage. (E) Case Law (1) Citation: Anthony v. Halderman, 7 Kan. 50, 58-59 (1871), available with subscription on LexisNexis or WestLaw, or upon request by ConSource staff (emphasis in original). Background: Anthony v. Halderman was a Kansas Supreme Court case involving 130 male persons of African descent who were denied the right to register as voters for a mayoral election. The Kansas justices interpretation of the Fifteenth Amendment is consistent with most state court interpretations of the amendment during this period. The Kansas justices, like their counterparts in other states, strictly construed the amendment as leaving in place all qualifications on the right to vote, except the requirement that all voters be white. The justices also read the amendment as conferring no right to vote; instead, they interpreted the amendment as simply preventing the future denial of suffrage on the basis of race or previous condition of servitude.

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Text: If, in answer to this suggestion, it shall be claimed that the so-called fifteenth amendment to the constitution of the United States conferred the franchise, or a right of voting, on such negroes as had the necessary qualifications other than that of being white, then, in answer thereto, we submit that said amendment does not have such effect. To prevent a future denial of a right is one thing; to confer a right is another and very different matter. Negroes never otherwise obtained any right to vote in Kansas. If the constitution of this state shall hereafter be amended so as to permit negroes to vote here, then such right could not afterwards be taken from them. In states where they had such right when said amendment took effect, it cannot be taken from them. Further than this said amendment is not operative. The said amendment should be construed according to its language, and not in accordance with any supposed or presumed intent not shown by the law itself. (2) Citation: Wood v. Fitzgerald, 3 Or. 568, 568 (1870), available with subscription on LexisNexis or WestLaw, or upon request by ConSource staff. Background: Here, again, the Oregon Supreme Court further illustrates the conventional wisdom of state court justices the Fifteenth Amendment, as strictly construed, only operates to void those laws restricting the right of suffrage to white persons. The next section of this report on the scope of congresss enforcement power will review federal court interpretation of the Fifteenth Amendment. Text: The fifteenth amendment to the federal constitution is a part of the supreme law of the land, and its effect is to annul those provisions of the state constitution, and those enactments of the state legislature, which restrict the exercise of the right of suffrage to white persons. II. Scope of Congresss Power to Enforce the Reconstruction Amendments. (A) Text of Constitution (1) Citation: U.S. CONST., art. I, 4, cl. 1. Background: The Elections Clause enables Congress to make or alter regulations regarding the time, place, and manner of federal elections in the states, except with respect to location of choosing Senators. In 1884, in Ex Parte Yarbrough, 110 U.S. 651 (1884), the Supreme Court upheld the authority of Congress under the Elections Clause to enact laws criminalizing voter suppression through violence and intimidation. The Court noted that it was not until 1842 that Congress took action under the Elections Clause, and asserted, it is only because the Congress of the United States, through long habit and long years of forbearance, has, in deference and respect to the States, refrained from the exercise of these powers, that they are now doubted. Id. at 662. Text: The times, places, and manner of holding elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing of Senators. [11]

(2) Citation: U.S. Const. amend XV, 2. Background: The second section of the Fifteenth Amendment, which is modeled on similar sections in the Thirteenth and Fourteenth Amendments, was included because it was feared that without the provision, the power of Congress would not be extensive enough to secure the proper enforcement of Section 1. John Bingham and others believed the enforcement language would also help remedy the negative character of the modestly phrased suffrage amendment by enabling congress, among other things, to secure state-wide uniformity in the qualifications of electors. CONG. GLOBE 40TH CONG, 3D. SESS. 727 (January 29, 1869) (Statement of Representative Bingham). Most members of congress, including congressional Republicans, did not accept Binghams interpretation of Section 2, and rejected the idea that the Fifteenth Amendment might be made affirmative in character. See, e.g., CONG. GLOBE 40TH CONG., 3D SESS. 727-28 (Statement of Representative Jenckes). Text: Section 2. The Congress shall have power to enforce this article by appropriate legislation.

(B) Statutes (1) Citation: An Act supplementary to an Act entitled An Act to provide for the more efficient Government of the Rebel States, passed [March 2, I867] and the Act supplementary thereto, passed [March 23, I867] 11 (the Third Reconstruction Act), 15 Stat. 14 (July 19, 1867). Background: The Third Reconstruction Act clarified the language and true intent of the First and Second Reconstruction Acts. The first two reconstruction acts divided the former Confederate states into five military districts, required new state constitutions recognizing the voting rights of freedmen, and demanded state ratification of the Fourteenth Amendment as a condition for readmission to the Union. Section 11 of the Third Reconstruction Act declared that the first two acts should be construed liberally, granting congress ample power to carry forth each bills provisions, which included language requiring state recognition of voting rights for freedmen. Text: SEC. 11. And be it further exacted, That all provisions of this act and of the acts to which this is supplementary shall be construed liberally, to the end that all the intents thereof may be fully and perfectly carried out. (2) Citation: An Act to enforce the Right of Citizens of the United States to vote in the several States of this Union, and for other Purposes (Enforcement Act of 1870), 16 Stat. 140, (May 31 1870). Background: As a columnist noted in May of 1870, everybody knows that in many states the [fifteenth amendment] standing by itself, isnt worth a straw. DWB, Washington, THE INDEPENDENT (May 1870). Congress responded to this state of affairs by passing the Enforcement Act of 1870. The Act principally enforced the Fifteenth Amendment, stating that race, color, or previous condition of servitude could not bar an otherwise qualified voter from voting, regardless of what discriminatory language remained in state or local laws. It also allowed for the federal prosecution of anyone [12]

who obstructed citizens in the exercise of the elective franchise. Section 19 of the Act further authorized federal authorities to prosecute irregularities and corrupt practices in congressional elections. Text: Sec. 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all citizens of the United States who are or shall be otherwise qualified by law to vote at any election by the people in any State, Territory, district, county, city, parish, township, school district, municipality, or other territorial subdivision, shall be entitled and allowed to vote at all such elections, without distinction of race, color, or previous condition of servitude; any constitution, law, custom, usage, or regulation of any State or Territory, or by or under its authority, to the contrary notwithstanding. Sec. 2. And be it further enacted, That if by or under the authority of the constitution or laws of any State, or the laws of any Territory, any act is or shall be required to be done as a prerequisite or qualification for voting, and by such constitution or laws persons or officers are or shall be charged with the performance of duties in furnishing to citizens an opportunity to perform such prerequisite, or to become qualified to vote, it shall be the duty of every such person and officer to give to all citizens of the United States the same and equal opportunity to perform such prerequisite, and to become qualified to vote without distinction of race, color, or previous condition of servitude; and if any such person or officer shall refuse or knowingly omit to give full effect to this section, he shall, for every such offence, forfeit and pay the sum of five hundred dollars to the person aggrieved thereby, to be recovered by an action on the case, with full costs, and such allowance for counsel fees as the court shall deem just, and shall also, for every such offence, be deemed guilty of a misdemeanor, and shall, on conviction thereof, be fined not less than five hundred dollars, or be imprisoned not less than one month and not more than one year, or both, at the discretion of the court. Sec. 3. And be it further enacted, That whenever, by or under the authority of the constitution or laws of any State, or the laws of any Territory, any act is or shall be required to [be] done by any citizen as a prerequisite to qualify or entitle him to vote, the offer of any such citizen to perform the act required to be done as aforesaid shall, if it fail to be carried into execution by reason of the wrongful act or omission aforesaid of the person or officer charged with the duty of receiving or permitting such performance or offer to perform, or acting thereon, be deemed and held as a performance in law of such act; and the person so offering and failing as aforesaid, and being otherwise qualified, shall be entitled to vote in the same manner and to the same extent as if he had in fact performed such act; and any judge, inspector, or other officer of election whose duty it is or shall be to receive, count, certify, register, report, or give effect to the vote of any such citizen who shall wrongfully refuse or omit to receive, count, certify, register, report, or give effect to the vote of such citizen upon the presentation by him of his affidavit stating such offer and the time and place thereof, and the name of the officer or person whose duty it was to act thereon, and that he was wrongfully prevented by such person or officer from performing such act, shall for every such offence forfeit and pay the sum of five hundred dollars to the person aggrieved thereby, to be recovered by an action on the case, with full costs, and such allowance for counsel fees as the court shall deem just, and shall also for every such offence be guilty of a misdemeanor, and shall, on conviction thereof, be fined not less than five hundred dollars, or be imprisoned not less than one month and not more than one year, or both, at the discretion of the court. [13]

Sec. 4. And be it further enacted, That if any person, by force, bribery, threats, intimidation, or other unlawful means, shall hinder, delay, prevent, or obstruct, or shall combine and confederate with others to hinder, delay, prevent, or obstruct, any citizen from doing any act required to be done to qualify him to vote or from voting at any election as aforesaid, such person shall for every such offence forfeit and pay the sum of five hundred dollars to the person aggrieved thereby, to be recovered by an action on the case, with full costs, and such allowance for counsel fees as the court shall deem just, and shall also for every such offence be guilty of a misdemeanor, and shall, on conviction thereof, be fined not less than five hundred dollars, or be imprisoned not less than one month and not more than one year, or both, at the discretion of the court. Sec. 5. And be it further enacted, That if any person shall prevent, hinder, control, or intimidate, or shall attempt to prevent, hinder, control, or intimidate, any person from exercising or in exercising the right of suffrage, to whom the right of suffrage is secured or guaranteed by the fifteenth amendment to the Constitution of the United States, by means of bribery, threats, or threats of depriving such person of employment or occupation, or of ejecting such person from rented house, lands, or other property, or by threats of refusing to renew leases or contracts for labor, or by threats of violence to himself or family, such person so offending shall be deemed guilty of a misdemeanor, and shall, on conviction thereof, be fined not less than five hundred dollars, or be imprisoned not less than one month and not more than one year, or both, at the discretion of the court. Sec. 6. And be it further enacted, That if two or more persons shall band or conspire together, or go in disguise upon the public highway, or upon the premises of another, with intent to violate any provision of this act, or to injure, oppress, threaten, or intimidate any citizen with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the Constitution or laws of the United States, or because of his having exercised the same, such persons shall be held guilty of felony, and, on conviction thereof, shall be fined or imprisoned, or both, at the discretion of the court, the fine not to exceed five thousand dollars, and the imprisonment not to exceed ten years,and shall, moreover, be thereafter ineligible to, and disabled from holding, any office or place of honor, profit, or trust created by the Constitution or laws of the United States. Sec. 7. And be it further enacted, That if in the act of violating any provision in either of the two preceding sections, any other felony, crime, or misdemeanor shall be committed, the offender, on conviction of such violation of said sections, shall be punished for the same with such punishments as are attached to the said felonies, crimes, and misdemeanors by the laws of the State in which the offence may be committed. Sec. 8. And be it further enacted, That the district courts of the United States, within their respective districts, shall have, exclusively of the courts of the several States, cognizance of all crimes and offences committed against the provisions of this act, and also, concurrently with the circuit courts of the United States, of all causes, civil and criminal, arising under this act, except as herein otherwise provided, and the jurisdiction hereby conferred shall be exercised in conformity with the laws and practice governing United States courts; and all crimes and offences committed against the provisions of this act may be prosecuted by the indictment of a grand jury, or, in cases of crimes and offences not infamous, the [14]

prosecution may be either by indictment or information filed by the district attorney in a court having jurisdiction. Sec. 9. And be it further enacted, That the district attorneys, marshals, and deputy marshals of the United States, the commissioners appointed by the circuit and territorial courts of the United States, with powers of arresting, imprisoning, or bailing offenders against the laws of the United States, and every other officer who may be specially empowered by the President of the United States, shall be, and they are hereby, specially authorized and required, at the expense of the United States, to institute proceedings against all and every person who shall violate the provisions of this act, and cause him or them to be arrested and imprisoned, or bailed, as the case may be, for trial before such court of the United States or territorial court as has cognizance of the offense. And with a view to afford reasonable protection to all persons in their constitutional right to vote without distinction of race, color, or previous condition of servitude, and to the prompt discharge of the duties of this act, it shall be the duty of the circuit courts of the United States, and the superior courts of the Territories of the United States, from time to time, to increase the number of commissioners, so as to afford a speedy and convenient means for the arrest and examination of persons charged with a violation of this act; and such commissioners are hereby authorized and required to exercise and discharge all the powers and duties conferred on them by this act, and the same duties with regard to offences created by this act as they are authorized by law to exercise with regard to other offences against the laws of the United States. Sec. 10. And be it further enacted, That it shall be the duty of all marshals and deputy marshals to obey and execute all warrants and precepts issued under the provisions of this act, when to them directed; and should any marshal or deputy marshal refuse to receive such warrant or other process when tendered, or to use all proper means diligently to execute the same, he shall, on conviction thereof, be fined in the sum of one thousand dollars, to the use of the person deprived of the rights conferred by this act. And the better to enable the said commissioners to execute their duties faithfully and efficiently, in conformity with the Constitution of the United States and the requirements of this act, they are hereby authorized and empowered, within their districts respectively, to appoint, in writing, under their hands, any one or more suitable persons, from time to time, to execute all such warrants and other process as may be issued by them in the lawful performance of their respective duties, and the persons so appointed to execute any warrant or process as aforesaid shall have authority to summon and call to their aid the bystanders or posse comitatus of the proper county, or such portion of the land or naval forces of the United States, or of the militia, as may be necessary to the performance of the duty with which they are charged, and to insure a faithful observance of the fifteenth amendment to the Constitution of the United States; and such warrants shall run and be executed by said officers anywhere in the State or Territory within which they are issued. Sec. 11. And be it further enacted, That any person who shall knowingly and willfully [sic] obstruct, hinder, or prevent any officer or other person charged with the execution of any warrant or process issued under the provisions of this act, or any person or persons lawfully assisting him or them from arresting any person for whose apprehension such warrant or process may have been issued, or shall rescue or attempt to rescue such person from the custody of the officer or other person or persons, or those lawfully assisting as [15]

aforesaid, when so arrested pursuant to the authority herein given and declared, or shall aid, abet, or assist any person so arrested as aforesaid, directly or indirectly, to escape from the custody of the officer or other person legally authorized as aforesaid, or shall harbor or conceal any person for whose arrest a warrant or process shall have been issued as aforesaid, so as to prevent his discovery and arrest after notice or knowledge of the fact that a warrant has been issued for the apprehension of such person, shall, for either of said offences, be subject to a fine not exceeding one thousand dollars, or imprisonment not exceeding six months, or both, at the discretion of the court, on conviction before the district or circuit court of the United States for the district or circuit in which said offence may have been committed; or before the proper court of criminal jurisdiction, if committed within any one of the organized Territories of the United States. Sec. 12. And be it further enacted, That the commissioners, district attorneys, the marshals, their deputies, and the clerks of the said district, circuit, and territorial courts shall be paid for their services the like fees as may be allowed to them for similar services in other cases. The person or persons authorized to execute the process to be issued by such commissioners for the arrest of offenders against the provisions of this act shall be entitled to the usual fees allowed to the marshal for an arrest for each person he or they may arrest and take before any such commissioner as aforesaid, with such other fees as may be deemed reasonable by such commissioner for such other additional services as may be necessarily performed by him or them, such as attending at the examination, keeping the prisoner in custody, and providing him with food and lodging during his detention and until the final determination of such commissioner, and in general for performing such other duties as may be required in the premises; such fees to be made up in conformity with the fees usually charged by the officers of the courts of justice within the proper district or county as near as may be practicable, and paid out of the treasury of the United States on the certificate of the judge of the district within which the arrest is made, and to be recoverable from the defendant as part of the judgment in case of conviction. Sec. 13. And be it further enacted, That it shall be lawful for the President of the United States to employ such part of the land or naval forces of the United States, or of the militia, as shall be necessary to aid in the execution of judicial process issued under this act. Sec. 14. And be it further enacted, That whenever any person shall hold office, except as a member of Congress or of some State legislature, contrary to the provisions of the third section of the fourteenth article of amendment of the Constitution of the United States, it shall be the duty of the district attorney of the United States for the district in which such person shall hold office, as aforesaid, to proceed against such person, by writ of quo warranto, returnable to the circuit or district court of the United States in such district, and to prosecute the same to the removal of such person from office; and any writ of quo warranto so brought, as aforesaid, shall take precedence of all other cases on the docket of the court to which it is made returnable, and shall not be continued unless for cause proved to the satisfaction of the court. Sec. 15. And be it further enacted, That any person who shall hereafter knowingly accept or hold any office under the United States, or any State to which he is ineligible under the third section of the fourteenth article of amendment of the Constitution of the United States, or who shall attempt to hold or exercise the duties of any such office, shall be [16]

deemed guilty of a misdemeanor against the United States, and, upon conviction thereof before the circuit or district court of the United States, shall be imprisoned not more than one year, or fined not exceeding one thousand dollars, or both, at the discretion of the court. Sec. 16. And be it further enacted, That all persons within the jurisdiction of the United States shall have the same right in every State and Territory in the United States to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding. No tax or charge shall be imposed or enforced by any State upon any person immigrating thereto from a foreign country which is not equally imposed and enforced upon every person immigrating to such State from any other foreign country; and any law of any State in conflict with this provision is hereby declared null and void. Sec. 17. And be it further enacted, That any person who, under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any right secured or protected by the last preceding section of this act, or to different punishment, pains, or penalties on account of such person being an alien, or by reason of his color or race, than is prescribed for the punishment of citizens, shall be deemed guilty of a misdemeanor, and, on conviction, shall be punished by fine not exceeding one thousand dollars, or imprisonment not exceeding one year, or both, in the discretion of the court. Sec. 18. And be it further enacted, That the act to protect all persons in the United States in their civil rights, and furnish the means of their vindication, passed April nine, eighteen hundred and sixty-six, is hereby re-enacted; and sections sixteen and seventeen hereof shall be enforced according to the provisions of said act. Sec. 19. And be it further enacted, That if at any election for representative or delegate in the Congress of the United States any person shall knowingly personate and vote, or attempt to vote, in the name of any other person, whether living, dead, or fictitious; or vote more than once at the same election for any candidate for the same office; or vote at a place where he may not be lawfully entitled to vote; or vote without having a lawful right to vote; or do any unlawful act to secure a right or an opportunity to vote for himself or any other person; or by force, threat, menace, intimidation, bribery, reward, or offer, or promise thereof, or otherwise unlawfully prevent any qualified voter of any State of the United States of America, or of any Territory thereof, from freely exercising the right of suffrage, or by any such means induce any voter to refuse to exercise such right; or compel or induce by any such means, or otherwise, any officer of an election in any such State or Territory to receive a vote from a person not legally qualified or entitled to vote; or interfere in any manner with any officer of said elections in the discharge of his duties; or by any of such means, or other unlawful means, induce any officer of an election, or officer whose duty it is to ascertain, announce, or declare the result of any such election, or give or make any certificate, document, or evidence in relation thereto, to violate or refuse to comply with his duty, or any law regulating the same; or knowingly and wilfully [sic] receive [17]

the vote of any person not entitled to vote, or refuse to receive the vote of any person entitled to vote; or aid, counsel, procure, or advise any such voter, person, or officer to do any act hereby made a crime, or to omit to do any duty the omission of which is hereby made a crime, or attempt to do so, every such person shall be deemed guilty of a crime, and shall for such crime be liable to prosecution in any court of the United States of competent jurisdiction, and, on conviction thereof, shall be punished by a fine not exceeding five hundred dollars, or by imprisonment for a term not exceeding three years, or both, in the discretion of the court, and shall pay the costs of prosecution. Sec. 20. And be it further enacted, That if, at any registration of voters for an election for representative or delegate in the Congress of the United States, any person shall knowingly personate and register, or attempt to register, in the name of any other person, whether living, dead, or fictitious, or fraudulently register, or fraudulently attempt to register, not having a lawful right so to do; or do any unlawful act to secure registration for himself or any other person; or by force, threat, menace, intimidation, bribery, reward, or offer, or promise thereof, or other unlawful means, prevent or hinder any person having a lawful right to register from duly exercising such right; or compel or induce, by any of such means, or other unlawful means, any officer of registration to admit to registration any person not legally entitled thereto, or interfere in any manner with any officer of registration in the discharge of his duties, or by any such means, or other unlawful means, induce any officer of registration to violate or refuse to comply with his duty, or any law regulating the same; or knowingly and wilfully [sic] receive the vote of any person not entitled to vote, or refuse to receive the vote of any person entitled to vote, or aid, counsel, procure, or advise any such voter, person, or officer to do any act hereby made a crime, or to omit any act, the omission of which is hereby made a crime, every such person shall be deemed guilty of a crime, and shall be liable to prosecution and punishment therefor [sic], as provided in section nineteen of this act for persons guilty of any of the crimes therein specified: Provided, That every registration made under the laws of any State or Territory, for any State or other election at which such representative or delegate in Congress shall be chosen, shall be deemed to be a registration within the meaning of this act, notwithstanding the same shall also be made for the purposes of any State, territorial, or municipal election. Sec. 21. And be it further enacted, That whenever, by the laws of any State or Territory, the name of any candidate or person to be voted for as representative or delegate in Congress shall be required to be printed, written, or contained in any ticket or ballot with other candidates or persons to be voted for at the same election for State, territorial, municipal, or local officers, it shall be sufficient prima facie evidence, either for the purpose of indicting or convicting any person charged with voting, or attempting or offering to vote, unlawfully under the provisions of the preceding sections, or for committing either of the offenses thereby created, to prove that the person so charged or indicted, voted, or attempted or offered to vote, such ballot or ticket, or committed either of the offenses named in the preceding sections of this act with reference to such ballot. And the proof and establishment of such facts shall be taken, held, and deemed to be presumptive evidence that such person voted, or attempted or offered to vote, for such representative or delegate, as the case may be, or that such offense was committed with reference to the election of such representative or delegate, and shall be sufficient to warrant his conviction, unless it shall be shown that any such ballot, when cast, or attempted or offered to be cast, [18]

by him, did not contain the name of any candidate for the office of representative or delegate in the Congress of the United States, or that such offense was not committed with reference to the election of such representative or delegate. Sec. 22. And be it further enacted, That any officer of any election at which any representative or delegate in the Congress of the United States shall be voted for, whether such officer of election be appointed or created by or under any law or authority of the United States, or by or under any State, territorial, district, or municipal law or authority, who shall neglect or refuse to perform any duty in regard to such election required of him by any law of the United States, or of any State or Territory thereof; or violate any duty so imposed, or knowingly do any act thereby unauthorized, with intent to affect any such election, or the result thereof; or fraudulently make any false certificate of the result of such election in regard to such representative or delegate; or withhold, conceal, or destroy any certificate of record so required by law respecting, concerning, or pertaining to the election of any such representative or delegate; or neglect or refuse to make and return the same as so required by law; or aid, counsel, procure, or advise any voter, person, or officer to do any act by this or any of the preceding sections made a crime; or to omit to do any duty the omission of which is by this or any of said sections made a crime, or attempt to do so, shall be deemed guilty of a crime and shall be liable to prosecution and punishment therefor [sic], as provided in the nineteenth section of this act for persons guilty of any of the crimes therein specified. Sec. 23. And be it further enacted, That whenever any person shall be defeated or deprived of his election to any office, except elector of President or Vice-President, representative or delegate in Congress, or member of a State legislature, by reason of the denial to any citizen or citizens who shall offer to vote, of the right to vote, on account of race, color, or previous condition of servitude, his right to hold and enjoy such office, and the emoluments thereof, shall not be impaired by such denial; and such person may bring any appropriate suit or proceeding to recover possession of such office, and in cases where it shall appear that the sole question touching the title to such office arises out of the denial of the right to vote to citizens who so offered to vote, on account of race, color, or previous condition of servitude, such suit or proceeding may be instituted in the circuit or district court of the United States of the circuit or district in which such person resides. And said circuit or district court shall have, concurrently with the State courts, jurisdiction thereof so far as to determine the rights of the parties to such office by reason of the denial of the right guaranteed by the fifteenth article of amendment to the Constitution of the United States, and secured by this act.

(C) Founding-era Materials (1) Citation: 1 ANNALS OF CONG. 790-802 (August 18, 1789) (Joseph Gales ed., 1834) (debate on federal versus state control over regulation of representation). Background: Representative Kelley of Pennsylvania, a Republican and sponsor of the District of Columbia Suffrage Act, quoted at length a discussion from the First Congress of the United States, discussing the power of congress to regulate the election of its own members. Kelley argued that congress has [19]

always had the final say on qualification for federal representatives. CONG. GLOBE, 39TH CONG., SESS. 1 1061-62 (1866). The debate over the scope of the Elections Clause in the First Congress occurred over the course of several days. Citations to specific pages in the Annals of Congress, as well as explanatory text are provided in the bracketed and italicized text below. Text: MR. TUCKER [of South Carolina] then moved that the following propositions of amendment to the constitution of the United States be referred to a Committee of the whole House, to wit: **** Sect. 4. clause 1. strike out the words, But the Congress may at any time, by law, make or alter such regulations, except as to the places of choosing Senators. Sect 5. clause 1. amend the first part to read thus, Each State shall be the judge (according to its own laws) of the election of its Senators and Representatives to sit in Congress, and shall furnish them with sufficient credentials; but each House shall judge of the qualifications of its own members: a majority of each House shall constitute, &c. [P. 790 - 91] **** [Tuckers proposal ultimately failed. Several days later, Mr. Burke of South Carolina, moved to add the following articles of amendment:] MR. BURKE . . . I move you, sir, to add to the articles of amendment the following: Congress shall not alter, modify, or interfere in the times, places, or manner of holding elections of Senators or Representatives, except when any State shall refuse or neglect, or be unable, by invasion or rebellion, to make such election. MR. AMES thought this one of the most justifiable of all the power of Congress; it was essential to a body representing the whole community, that they should have power to regulate their own elections, in order to secure a representation from every part, and prevent any improper regulations, calculated to answer party purposes only. It is a solecism in politics to let others judges for them, and is a departure from the principles upon which the Constitution was founded. * * * * MR MADISON. If this amendment had been proposed at any time, either in the Committee of the whole or separately in the House, I should not have objected to the discussion of it. But I cannot agree to delay the amendments now agreed upon, by entering into the consideration of propositions not likely to obtain the consent of either two-thirds of this House or three-fourths of the State Legislatures. I have considered this subject with some degree of attention, and, upon the whole, am inclined to think the constitution stands very well as it is. [P. 797 - 98]

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* * * * MR. SMITH (of South Carolina) said, he hoped it would be agreed to; that eight States had expressed their desires on this head, and all of them wished the General Government to relinquish their control over the elections. The eight States he alluded to were New Hampshire, Massachusetts, New York, Pennsylvania, Maryland, Virginia, North Carolina and South Carolina. [P. 799] Mr. SEDGWICK [of Massachusetts] moved to amend the motion, by giving the power to Congress to alter the times, manner, and places of holding elections, provided the States made improper ones; for as much injury might result to the Union from improper regulations, as from a neglect or refusal to make any. It is as much to be apprehended that the States may abuse their powers, as that the United States may make an improper use of theirs. Mr. SHERMAN observed, that the Convention were very unanimous in passing this clause; that it was an important provision, and if it was resigned it would tend to subvert the Government. Mr. MADISON was willing to make every amendment that was required by the States, which did not tend to destroy the principles and efficacy of the constitution; he conceived that the proposed amendment would have that tendency, he was therefore opposed to it. * * * * Mr. TUCKER, objected to Mr. Sedgwicks motion of amendment, because it had a tendency to defeat the object of the proposition brought forward by his colleague, (Mr. Burke.) The General Government would be the judge of inadequate or improper regulations; of consequence they might interfere in any or every law which the States might pass on that subject. He wished that the States Legislatures might be left to themselves to perform every thing they were competent to, without the guidance of Congress. [P. 800] Mr. GOODHUE hoped the amendment never would obtain. . . . [R]ather than this amendment should take effect, he would vote against all that had been agreed to. His greatest apprehensions were, that the State Governments would oppose and thwart the general one to such a degree as finally to overturn it. Now, to guard against this evil, he wished the Federal Government to possess every power necessary to its existence. [P. 801] [A vote was then taken by yeas and nays on Mr. Burkes motion, and resulted yes 23, nays 28. The proposal was thus defeated. Among the members who voted on this question we find seven who had been members of the Convention that framed the Constitution. Only one of them, Mr. Elbridge Gerry, voted for Mr. Burkes proposition; while six, Messrs. Carroll, Clymer, Fitzsimons, Gilman, Madison, and Sherman, voted in the negative.] [P. 802]

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(D) Legislative Record (1) Citation: CONG. GLOBE, 41ST CONG., 2D SESS. 3611-12 (May 19, 1870) (Statement of Senator Pool). Background: Senator John Pool, a Republican senator from North Carolina, describes here why enforcement legislation under the Fifteenth Amendment need not apply to state actors, but must apply to individual citizens. He believed that a lower federal court or the Supreme Court would declare as void all affirmative state action in violation of the Fifteenth Amendment. In contrast, and based on his experience as a southerner, he believed there were countless ways in which the Fifteenth Amendment would be abridged, without adequate redress, by individual citizens within the states especially those southern states with active branches of the Ku Klux Klan. Text: Mr. President, the question involved in the proposition now before the Senate is one in which my section of the Union is particularly interested; although since the ratification of the fifteenth amendment, which we are now about to enforce by appropriate legislation, other sections of the country have become more or less interested in the same question. It is entering upon a new phase of reconstruction; that is, to enforce by appropriate legislation those great principles upon which the reconstruction policy of Congress was based. I said upon a former occasion on this floor that the reconstruction policy of Congress had been progressive, and that it was necessary that it should be progressive still. The mere act of establishing governments in the recently insurgent States was one thing; the great principles upon which Congress proposed to proceed in establishing those governments was quite another thing, involving principles which lie at the very foundation of all that has been done, and which are intimately connected with all the results that must follow from that and from the legislation of Congress connected with the whole subject. Mr. President, the first thing that was done was the passage of the thirteenth amendment, by which slavery in the United States was abolished. By that four millions of people were taken out from under the protecting hand of interested masters and turned loose to take care of themselves. They were turned loose and put upon their own resources in communities which were imbued with prejudices against them as a race, communities which for the most part had for years pastindeed from the very time when those who are now in existence were bornbeen taught and had instilled into them a prejudice against the equality which has been attempted to be established for the colored citizens of the United States. Mr. President, the condition which that thirteenth amendment imposed on the late insurrectionary States was one which demanded the serious consideration and attention of this Government. The equality which by the thirteenth, fourteenth, and fifteenth amendments has been attempted to be secured for the colored men, has not only subjected them to the operation of the prejudices which had theretofore existed, but it has raised against them still stronger prejudices and stronger feelings in order to fight down the equality by which it is claimed they are to control the legislation of that section of the country. They were turned loose among those people, weak, ignorant, and poor. Those [22]

among the white citizens there who have sought to maintain the rights which you have thrown upon that class of people, have to endure every species of proscription, of opposition, and of vituperation in order to carry out the policy of Congress, in order to lift up and to uphold the rights which you have conferred upon that class. It is for that reason not only necessary for the freedmen, but it is necessary for the white people of that section that there should be stringent and effective legislation on the part of Congress in regard to these measures of reconstruction. We have heard on former occasions on the floor of the Senate that there were organizations which committed outrages, which went through communities for the purposes, of intimidating and coercing classes of citizens in the exercise of their rights. We have been told here that perhaps it might be well that retaliation should be resorted to on the part of those who are oppressed. Sir, the time will come when retaliation will be resorted to unless the Government of the United States interposes to command and to maintain the peace; when there will be retaliation and civil war; when there will be bloodshed and tumult in various communities and sections. It is not only necessary for the freedmen, but it is important to the white people of the southern section, that by plain and stringent laws the United States should interpose and preserve the peace and quiet of the community. The fifteenth amendment to the Constitution of the United States provides 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. It speaks of the right of citizens to vote. It has been said that voting is a privilege; but this amendment recognizes it as a right in the citizen; and this right is not to be denied or abridged by the United States, or by any State What are we to understand by that? Can individuals abridge it with impunity? Is there no power in this Government to prevent individuals or associations of individuals from abridging or contravening that provision of the Constitution? If that be so, legislation is unnecessary. If our legislation is to apply only to the States, it is perfectly clear that it is totally unnecessary, in as much as we cannot pass a criminal law as applicable to a State; nor can we indict a State officer as an officer. It must apply to individuals. A State might attempt to contravene that provision of the Constitution by passing some positive enactment by which it would be contravened, but the Supreme Court would hold such enactment to be unconstitutional, and in that way the State would be restrained. But the word deny is used. There are various ways in which a State may prevent the full operation of this constitutional amendment. It cannotbecause the courts would prevent itby positive legislation, but by acts of mission it may practically deny the right. The legislation of Congress must be to supply acts of omission on the part of the States. If a State shall not enforce its laws by which private individuals shall be prevented by force from contravening the rights of the citizens under the amendment, it is in my judgment the duty of the United States Government to supply that omission, and by its own laws and by its own courts to go into the States for the purpose of giving the amendment vitality there. ****

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There are, Mr. President, various ways in which the right secured by the fifteenth amendment may be abridged by citizens in a State. If a State should undertake by positive enactment, as I have said, to abridge the right of suffrage, the courts of the country would prevent it; and I find that in section two of the bill which has been proposed as a substitute by the Judiciary Committee of the Senate provision is made for cases where officers charged with registration or officers charged with the assessment of taxes and with making the proper entries in connection therewith, shall refuse the right to register or to pay taxes to a citizen. I believe the language of the Senate bill is sufficiently large and comprehensive to embrace any other class of officers that might be charged with any act that was necessary to enable a citizen to perform any prerequisite to voting. But, sir, individuals may prevent the exercise of the right of suffrage; individuals may prevent the enjoyment of other rights which are conferred upon the citizen by the fourteenth amendment, as well as trespass upon the right conferred by the fifteenth. Not only citizens but organizations of citizens, conspiracies, may be and are, as we are told, in some of the States formed for that purpose. I see in the fourth section of the Senate bill a provision for cases where citizens by threats, intimidation, bribery, or otherwise prevent, delay, or hinder the exercise of this right; but there is nothing here that strikes at organizations of individuals, at conspiracies for that purpose. I believe that any bill will be defective which does not make it a highly penal offense for men to conspire together, to organize themselves into bodies, for the express purpose of contravening the right conferred by the fifteenth amendment. But, sir, there is a great, important omission in this bill as well as in that of the House. It seems not to have struck those who drew either of the two bills that the prevention of the exercise of the right of suffrage was not the only or the main trouble that we have upon our hands. Suppose there shall be an organization of individuals, or, if you please, a single individual, who shall take it upon himself to compel his fellow citizens to vote in a particular way. Suppose he threatens to discharge them from employment, to bring upon them the outrages which are being perpetrated by the Kuklux [sic] organizations, so as not to prevent their voting, but to compel them to vote in accordance with the dictates of the party who brings this coercion upon them. It seems to me it is necessary that we should legislate against that. That is a more threatening view of the subject than the mere preventing of registration or of entering mens names upon the assessment books for taxation or of depositing the ballot in the box. I think the bill cannot be perfected to meet the emergencies of the occasion unless there be a section which meets that view of the case. (2) Citation: CONG. GLOBE, 42D CONG., 1st SESS. 504-06 (April 6, 1871) (Statement of Senator Pratt). Background: Senator Daniel Pratt, Republican of Ohio, discusses here his belief that the Reconstruction Amendments must be read and interpreted in light of the history and times in which they were passed and ratified. In his remarks, he references a report describing the political power of the Ku Klux Klan, and the terror wrought by its members, to support a broad interpretation of congresss enforcement power under the Reconstruction Amendments. For Pratt, and other Republicans in the majority, the definition of appropriate legislation was entirely dependent upon the evil congress was seeking to remedy.

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Text: Mr. President, I have not time to go into the details of this report. Every line is instructive. I will refer to the testimony of but a single witness, Jacob A. Long. He was the commander of the [Ku Klux Klan] order of Alamance county. He saw the band which hung Outlaw, for no crime except that he was an influential negro with his people. It was midnight. As they rushed past his office, bellowing, they cried, Lights out! They had their white disguises on, the same as used in the order. They were the Ku Klux. He says a man could not recognize his own father in that disguise. The men who were members of this order, he says, were men of position and influence, attached to the Democratic or Conservative party. There were ten of these Ku Klux camps in the single county of Alamance, which might have numbered as high as three or four hundred members. This witness speaks with authority, for he confesses he was commander of the central and principal camp. He speaks of the two murders and many whippings in that county. The report ascertains the actual number of outrages in this single county to have been fiftyfour. Mr. President, these acts are the development of the rebel spirit still alive in the South. They are the outcropping of the hate which sought to destroy the Union; which laid hold of the pillars of the State and sought to pull down the political fabric. **** It cannot be that the United States, charged with guarantying to every State a republican form of government and protecting it against domestic violence, shall not possess the power adequate to fulfill its trust. **** The people of the States, therefore, in ratifying these amendments proposed by Congress, have in very terms conceded that legislation was required, and have granted the power with a single qualification, that the legislation shall be appropriate. Appropriate to what? Appropriate to the subject-matter, such legislation as is fit and proper to give complete effect to the rights established and declared by these amendments. **** It is a political axiom that the judicial power of every well constituted Government must be coextensive with the legislative power, and must be capable of deciding every judicial question which grows out of the Constitution and laws. **** Now sir, [the Fourteenth amendment], as well as the thirteenth and fifteenths, is to be read in the light of the history of the times to ascertain its meaning and full scope. What was that condition in our political and social systems which gave birth to these amendments and made them necessary? Every rule, organic or legislative, has its origin in some existing evil which made it necessary. It is to be interpreted in the light of the cause which produced it.

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We had had a terrible civil convulsion, a great political upheaval. More than three millions persons of African descent had been held in slavery so absolute that, though born on this soil, they were not citizens. **** The fourteenth and fifteenth amendments have conferred upon this race, in the amplest form, civil and political privileges equal to those enjoyed by the white race. Whatever legislation is essential to secure them in the enjoyment of these rights without let, hinderance [sic], or molestation, is constitutional. Nobody denies that proposition who admits these amendments are now part of the Constitution. The only question which can arise is whether the means proposed are appropriate to the end. A specific grant of power is made to Congress to legislate for this class. Though called citizens of the United States, nobody can doubt that special reference was had to those who had been heretofore slaves. It was not needed that these provisions should be made for the white race, whose citizenship had never been doubted. [P. 505] I have come to the conclusion that Congress may enact a law of general application everywhere, exactly adapted to the existing evils in the South and which shall stop this flow of blood. I cannot doubt that such a power must, in the nature of things, exist. There cannot be a wrong without the power to provide a remedy. **** I find warrant for such power in the act of February 28, 1795, that of March 3, 1807, in the civil rights bill of 1866, which I have already quoted from, and in the sixth section of the enforcement act, so called, passed on the 31st of May, 1870. I find precedent in these laws for all the measures which have been proposed. [P.506] (3) Citation: CONG. GLOBE, 41st CONG., 2D SESS. APP. 353-59 (May 18 and 19, 1870) (statement of Senator Hamilton). Background: In one of the major speeches concerning the Enforcement Act of 1870, Senator William T. Hamilton, Democrat of Maryland, systematically described what he felt was the true meaning of the Fifteenth Amendment, strictly construed. Like the state court judges cited above, Hamilton believed the Fifteenth Amendment did nothing more than to nullify state laws limiting the franchise to white citizens. All other state election regulations were left unimpaired. Furthermore, and perhaps more significantly, Hamilton argued that the Fifteenth Amendment conferred upon congress no power of affirmative legislation. If Congress had such power, it could effectively turn states into instruments of the federal government. Hamilton, instead, believed that case-by-case litigation in federal courts provided the proper remedy for state violations of the Fifteenth Amendment. Hamiltons interpretation was ultimately rejected by congressional Republicans who, over the objections of Democrats, passed a robust piece of enforcement legislation.

Text: In order to the fair and proper examination of the provision of [the proposed Enforcement Act] now before us, it is necessary that we first understand the true intent [26]

and meaning of the amendment, and the power, if any at all, it confers upon Congress. By a fair construction of its terms, with the contemporaneous exposition of its meaning and effect, the following propositions may be logically deduced: First. That it does not confer upon Congress any power to establish the qualifications of electors in the States. Second. That is prohibits the United States from denying or abridging the right of citizens of the United States to vote on account of race, color, or previous condition of servitude in places where the United States have the powers of establishing the qualifications of electors and of regulating elections and the elective franchise, as in the District of Columbia and the Territories of the United States. Third. That it prohibits the States from denying or abridging the right of citizens of the United States to vote on account of race, color, or previous condition of servitude within their jurisdictions respectively. Fourth. That in all other respects the several States have within themselves, and the United States in such places where it has the jurisdiction, as I have before stated, in this District and in the Territories, the full and perfect power to fix the qualifications of electors. Fifth. That it does not deny or in the least abridge or affect that full and perfect power always possessed, enjoyed, and exercised by the States to regulate their elections and to prescribe the mode and manner of holding them, subject, however, and subject only to the limitations in article one, section four, of the Constitution of the United States, which grants to Congress the power to make or alter any regulations made by a State prescribing the time, place, and manner of holding elections for Senators and Representatives in Congress, except as to the place of choosing Senators. This grant, it will be observed, applies only to the election of Senators and Representatives in Congress. In all other respects whatsoever the rights of the States to regulate their elections remain to them unimpaired and complete. In fact, the intent and effect of this amendment were to avoid an exclusion from voting by reason of color or race. It means nothing more; it does nothing more. True, this is enough in itself, in my judgment, to entail trouble upon the white and bring disaster ultimately to the black race; but my purpose is not to comment upon the consequences likely to flow from this policy. There is no doubt, in my opinion, but that some of the designers and promoters of this amendment intended more than this; intended, by its peculiar phraseology and by implication in its construction, to absorb control over elections in the States, as is manifested in the bills now before us, and especially, in the Senate bill . . . . But whatever was intended by some, nothing, upon a just construction of the amendment, was effected beyond this: if a man be a citizen of the United States, and otherwise qualified to vote, whether he be white or black, or of whatever race, he is an elector by this amendment, and nothing more; he is not thereby placed above the regulations any State may make respecting elections, either in the manner of holding them or otherwise, but is subject to them and must comply with them. The only thing to be observed in their application to the voter is that white and black, and of whatever race or color, shall be treated alike.

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**** I shall maintain that [the amendment] confers upon Congress no power of affirmative legislation under it, and especially such legislation as that now proposed in both these bills[.] **** The amendment is negative upon the power of Congress and is complete in itself. The exercise of any such power thus prohibited by congressional legislation is simply unconstitutional and void, and would be so declared by the appropriate tribunals upon appeal by the aggrieved to them. Therefore whenever Congress undertakes to provide for elections, and to prescribe the qualifications of electors within those places under its jurisdiction for such purposes, if it should make a distinction of race or color, such fact would simply be void, as in conflict with the Constitution. No further legislation would be required, unless indeed it might be thought proper to repeal this void fact. But it would be an aggravated solecism to presume that Congress could with deliberation pass a law creating or continuing this prohibited distinction of race or color, and in the same or by some other law punish its officers for executing it. And so with the States. This amendment speaks to the States; not the people, but to the State as a body-politic; to the State as a corporate member of the Union, possessing sovereign power over the whole subject matter involved in this amendment, and in the voting process of its people. It prohibits to the State the power in the future to deny or abridge the right of a class to vote. This amendment is based upon the implication or fact, first, that the States have electors; and secondly, that the States prescribe their qualifications to vote. The State is to act; and in thus acting and prescribing the qualification of electors it is prohibited only from denying or abridging the right to vote on account of race or color. Every other power is retained for the qualification of electors. If this prohibited distinction is created or continued by a State in its legislation such distinction, being in conflict with the Constitution, is simply void and of no effect. The States, and the States only, can legislature upon this question; with them, and with them only, rests the qualifications of electors and the mode and manner of holding elections, with the exception of the limitation prescribed in the first article, section four [of the Constitution.] Some may say, suppose States do not observe the requirements of the fifteenth amendment, but by their Legislatures do abridge or deny the right to vote, or refuse to change their existing constitutions and laws recognizing such distinctions of race and color, where is the remedy unless Congress intervenes by affirmative legislation? The answer is that the Constitution of the United States is the supreme law of the land, and the judges in every State are bound thereby. (Article 6, paragraph 2). **** Punitive or penal legislation is not required always to redress wrongs, or even to prevent them. When law is once made individuals are to act under it, and the ordinary channels of law are always open to the citizens when his rights may be violated.

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**** Coercion is the embodiment of all our woes. In the early days of the Government and the Constitution, just fresh from the hands of its founders, it was decried and reproved by all the great and venerable names that have made our civil and military history illustrious. [P. 355] Such punitive legislation may be carried into every transaction of life. So strong and allpervading is this policy that it is removing causes from the civil to the criminal courts. Individuals will not litigate their own rights when the Government has attorneys or other instrumentalities to litigate for them. [P. 356] And then follows the penalty. Now, allow me to ask honorable Senators whose profession is the law, if an intent is not required in the commission of every crime? . . . . Under the fifteenth amendment there must be two intents, or one act with an intent: first, when you come to indict a person under this amendment for violating its provisions you must allege that he refused to register, if that was a prerequisite before he could vote; and secondly, you must alleged that he did so refuse because of the partys color, or of his race, or of his previous condition of servitude; and you must prove the offense as alleged. **** Gentlemen may say that it would be extremely difficult to prove such an intent in cases of this kind. This may be so, but yet you must prove it to the satisfaction of the court and jury before you can convict, and there is not a judge in the land who will not so charge the jury that they must be first satisfied that the refusal was because of the character o the voter in the respects specified in the amendment of the Constitution[.] [P. 357] My view of the Constitution, or rather of this amendment, is that the law-making power of this Government has nothing whatever to do with any class of citizens, except when there is occasion to interpose by reason of their being deprived of their right to vote on account of race, color, or previous condition of servitude. [P. 358] Will honorable Senators be fair, be just, be precise, be accurate in the framing, the construction, and in the exposition of a law of this great importance. When the sole object of the law purports to be, and therefore should be, to enforce the fifteenth amendment to the Constitution of the United States, and that amendment involves only the denial of the right of franchise on account of race, color, or previous condition of servitude, I ask Senators whether they will under that provision of the Constitution subvert all our registration laws and change the duties of our officers of election on the day of election, in defiance of our own State laws? Is that power to be exercised and your officers of election to be made the instruments of this laws instead of their own law? Can it be possible that under the amendment the Congress of the United States can claim this controlling power to itself and subvert entirely the rights of the States over these great subjects? [P. 359]

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(4) Citation: CONG. GLOBE, 41ST CONG., 3D SESS. 1635 (February 24, 1871) (Statement of Senator Vickers). Background: Senator George Vickers, Hamiltons Democratic colleague from Maryland, supplied a different, but also restrictive, interpretation of the Section 2 of the Fifteenth Amendment. Vickers viewed the enforcement power as a latent one. For him, unless and until a state acted in violation of Section 1, Congress was not empowered to employ its Section 2 powers. Like Hamiltons interpretation, however, Vickerss views were not widely embraced by Republicans in the majority. Text: It is only after State action denying or abridging the right to vote that the second clause of the fifteenth amendment can be exercised by Congress . . . . It is latent, and must forever remain so, in a constitutional sense, until it is warmed into activity and energy by State authority. It exists only conditionally, contingently. It is not an isolated, independent power, to be exercised at will; but it is a subsidiary, secondary, inferior power, to be used in reference to the condition or contingency which is annexed to the principal power. This secondary or contingent power, when called into action, must be used only to the extent of securing the elective franchise to such persons as may have been deprived of it by a State on account of race, color, or previous condition of servitude. (5) Citation: CONG. GLOBE, 42D CONG., 1ST SESS. APP. 154 (April 4, 1871) (statement of Rep. Shellabarger). Background: In contrast to Hamilton and Vickers, Representative Shellabarger, a Republican from Ohio and principal draftsman of the Civil Rights Act of 1870, describes here a robust congressional enforcement power. Shellabarger believed that the Fifteenth Amendment granted congress additional authority beyond that previously established through the Elections Clause in Article I, Section 4, Clause I. As such, congress was now empowered to not only nullify state laws contrary to the mandates of the Fifteenth Amendment, but also to punish individual citizens who deprived persons of the right to vote on the basis of race, color, or previous condition of servitude. Text: [T]he fifteenth amendment was also a mere negation upon the powers of the States and of the United States, saying that no State nor the United States shall take away the right to vote on account of color, race, &c. That also is another negation. The old clause in the Constitution in regard to elections did not give Congress the power to touch the question as to who should vote, but simply gave them power to regulate the time, place, and manner of casting the vote by those who could vote under State authority. Now, I ask my colleagues attention to this. We have passed here an act which enforces the fifteenth amendment, which amendment was a mere negation also upon the power of the States. It is provided in the first section of that act that all citizens of the United States shall have the right to go into the States from a mere negation, to say who shall vote at township and every other election. Then, under the fifteenth amendment, he goes directly to the citizens and punishes the man who deprives any one of the right to vote, which he gets under Federal law, and in contravention of the constitutions of one half of the States in the Union[.]

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(6) Citation: CONG. GLOBE, 43D CONG, 1ST SESS. APP. 360 (May 23, 1874) (Statement of Senator Morton). Background: While Shellabarger addressed Hamilton and Vickerss concerns over congresses power to regulate individual citizens, he left unanswered their argument that a judicial remedy would adequately address violations of the Fifteenth Amendment. Here, Senator Oliver P. Morton, a Republican from Indiana, confronts that question head on. Morton and other Republicans believed that a judicial pronouncement declaring a law as void would do little to vindicate the rights of a voter denied the franchise. To do that, a rights-violator would have to receive criminal punishment. The final version of the Enforcement Act of 1870 provided a judicial remedy, while also authorizing congress to directly regulate and penalize both state actors and private citizens who acted in contravention of the Fifteenth Amendment. Text: Rights are of no avail unless they are enforced. It is of no advantage to me theoretically to have a right which I cannot enforce, which I cannot secure the enjoyment of, my neighbor to the contrary notwithstanding. Now, a State may pass a law forbidding a colored man to go into the carsI am supposing this case in answer to my friends question. That law, if carried into the Supreme Court of the United States, would be held to be unconstitutional in the absence of this act. But that is not a thing perhaps which the party injured could do. This is a very imperfect form of remedy, simply to give the right of appeal from the State courts to the courts of the United States. That was not what was meant by this amendment. The framers of the amendmentand I know something about itunderstood that a law passed by a State in contravention of it would be void, and the Supreme Court of the United States would so decide; but they did not intend to leave the victim to that roundabout and costly remedy. They intended to make it a penal offense for any man to violate the rights of another, so that if he did it he should do so at his peril. The State law could not cover him and protect him. . . . Rights are protected by penal enactments, by punishing the violator of them. A State makes a law. Under cover of that law one man violates the rights of another. To simply have the law declared void is no vindication of the right. That is no punishment of the criminal. We desire to protect the right by punishing the wrong-doer; and all we say is that no law made by a State in violation of this amendment shall protect the criminal from his punishment. . . . It was intended at the timeand the debates will show itto make a violation of [the thirteenth, fourteenth, and fifteenth] amendments a personal and criminal offense, and to punish the violator, because that is the only successful vindication of right, the only successful enforcement of the [Reconstruction] amendments that can be had. (E) Case Law (1) Citation: United States v. Given, 25 F. Cas. 1324, 1325-27 (C.C. D. Del) (1873), available with subscription on WestLaw or LexisNexis or upon request by ConSource staff. Background: The defendant, Given, was indicted for a violation of the second section of the Enforcement Act of 1870. That section reads, [t]hat if by or under the authority of the constitution or laws of any State, or the laws of any Territory, any act is or shall be required to be done as a prerequisite or qualification for voting, and by such constitution or laws persons or officers are or shall be charged with the performance of duties in furnishing to citizens an opportunity to perform such prerequisite, or to become qualified to vote, it

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shall be the duty of every such person and officer to give to all citizens of the United States the same and equal opportunity to perform such prerequisite, and to become qualified to vote without distinction of race, color, or previous condition of servitude; and if any such person or officer shall refuse or knowingly omit to give full effect to this section, he shall, for every such offence, forfeit and pay the sum of five hundred dollars to the person aggrieved thereby, to be recovered by an action on the case, with full costs, and such allowance for counsel fees as the court shall deem just, and shall also, for every such offence, be deemed guilty of a misdemeanor, and shall, on conviction thereof, be fined not less than five hundred dollars, or be imprisoned not less than one month and not more than one year, or both, at the discretion of the court. The judges of the Delaware District Court held here that because the first section of the Fifteenth Amendment rendered inoperative all adverse national and state legislation, the second section must do more than merely guard against ministerial or judicial acts of state governments and officers. In the view of this court, and several other similarly situated federal courts between 1870 and 1876, the second section of the Fifteenth Amendment and related enforcement legislation also guarded against violations by private citizens. Unlike state courts, federal courts during this short period were more inclined to broadly, rather than strictly, interpret the Reconstruction Amendments. This trend was, however, short-lived. Text: I agree that the legislative power of the federal government is not unlimited, and I accept the doctrine that congress can enact no law which is not authorized by the constitution, either expressly or by necessary implication. But within its sphere the power of congress is as ample and complete as the necessities for its exercise require. A power is shorn of none of its extent by the fact that it is held by a branch of the federal government. The powers of that government are limited in number, but not in their nature. If, therefore, the grant of power can be found in the constitution, the validity of a law enacted under it is not dependent upon the extent to which the exercise of the power has been carried. The thirteenth, fourteenth, and fifteenth amendments of the constitution have confessedly extended civil and political rights, and, I think, they have enlarged the powers of congress. The primary object of the thirteenth, and of the first sections of the fourteenth and fifteenth was to secure to persons certain rights which they had not previously possessed. Thus the thirteenth amendment made the right of personal liberty a constitutional right. . . . And the fifteenth defined partially that which constitutes citizenship and which belongs a citizenship as such. It recognizes, as a right of citizenship, exemption from disability on account of race, color, or previous condition of servitude, in the determination of a right to vote. It practically declares that citizenship, irrespective of color or race, confers a right to vote on equal terms or conditions with those that are required for voters of another race or color. It places white and colored persons on equal footing as respects the elective franchise, and it protects race against discrimination as fully as it protects color or previous condition. . . .[U]ntil the [fifteenth] amendment was adopted, it was in the power of any state to deny to any person who happened to be colored . . . any participation in the elective franchise. Mere citizenship did not of course secure a right to vote. It was to remove the possibility of such discrimination that the fifteenth amendment was adopted. It leaves to the states, as before, the regulation of suffrage and of the qualification of electors within their limits, with the single restriction that they shall not make color, or race, or previous condition of servitude, a reason for discrimination. It is true the amendment is in form a prohibition upon the United States, and upon the states, but it is not the less on that account an assertion of a constitutional right belonging to citizens as such. Surely it cannot be maintained that it conferred no rights upon persons. There are very many instances to be found in the constitution as it was before the recent amendments, in which rights of persons have been recognized and secured without any express grant. It is not [32]

uncommon to speak of them as existing, and to prohibit their infringement. The prohibition is itself an acknowledgment of the right. Thus, the provision that the privilege of the writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion the public safety may require it, is a constitutional recognition that such a privilege does exist. Indeed very many of the prohibitions mentioned in the 9th section, and those upon the states mentioned in the 10th section, imply corresponding rights and exemptions belonging to persons. It is not necessary to maintain that because there are constitutional rights, recognized as such by the organic laws, congress has the power to protect them, in all cases, by affirmative legislation. Where rights result from prohibitions upon the states, there seems to have been no provision made for their enforcement by congress. . . . The second section of the fifteenth article ordained that the congress shall power to enforce this article by appropriate legislation. Manifestly this section was adopted for a purpose. It must be so construed as to confer some effective power. But what meaning can it have if the first section, as contended by the defendant, is no more than an inhibition upon the United States, and upon the states as sovereignties, against discriminations? If the first section assures no rights to persons, how can congress enforce the article? Proprio vigore, the first section renders inoperative all adverse national or state legislation. To hold, therefore, that the second section was adopted merely to guard against ministerial or judicial acts of state governments, or of state officers acting in the line of their duty prescribed by a state, is to make superfluous and unmeaning all that was accomplished by the first section. And thus holding is to lose sight of the end sought to be attained by both sections, namely, the right to exemption from certain unfriendly discriminations. It is to subordinate that which is substance to mere form. I cannot think that such is a reasonable construction of this amendment. It was well known when it was adopted that in many quarters it was regarded with great disfavor. It might well have been anticipated that it would meet with evasion and hindrances, not from state legislatures, for their affirmative action was rendered powerless by it, or not from a state's judiciary, for their judgments denying the right were reviewable by federal courts, but by private persons and ministerial officers, by assessors, collectors, boards of registration, or election officers. And it might have been foreseen that by these agencies a right intended to be substantial could become incapable of enjoyment. Suppose, as is largely the case in Delaware, the state passes no unfriendly act, but neglects to impose penalties upon its election officers for making discriminations on account of race or color, and provides no remedy for such wrongs, of what value is the constitutional provision unless it means that congress may interfere? I think such intervention was contemplated and expressly authorized. It was not intended to leave the right without full and adequate protection. Earlier prohibitions to the states were left without any express power of interference by congress; but these later, encountering as they did so much popular prejudice and working changes so radical, were fortified by grants to congress of power to carry them into full effectthat is, to enact any laws appropriate to give reality to the rights declared. That the second section of the act of May 31, 1870, is appropriate legislation to secure those rights and to give effect to the [Reconstruction] amendment[s] is perfectly plain. I am therefore of opinion that its enactment was within the power of congress. (2) Citation: United States v. Reese et al., 92 U.S. 214, 222, 226, 227, 232 (1874).

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Background: United States v. Reese involved a violation of the Enforcement Act of 1870 by Kentucky election officials who refused to receive and count the vote of William Garner, an African American. This case was the Supreme Courts first voting rights case under the Fifteenth Amendment and the Enforcement Act of 1870. In examining the language of the Enforcement Act, the Court noted that, while the first two sections of the Act explicitly referred to race in criminalizing interference with the right to vote, the relevant third and forth sections referred only to the aforesaid offense. According to the Court, this language did not sufficiently tailor the law to qualify as appropriate legislation under the Enforcement Clause of the Fifteenth Amendment. Thus by a vote of 8 to 1, the Supreme Court struck down sections three and four of the Enforcement Act of 1870. Text: Since the adoption of the [Fifteenth] amendment, Congress has legislated upon the subject; and, by the first section of the Enforcement Act, it is provided that citizens of the United States, without distinction of race, color, or previous condition of servitude, shall, if otherwise qualified to vote in state, territorial, or municipal elections, be entitled and allowed to vote at all such elections, any constitution, law, custom, usage, or regulation of any State or Territory, or by or under its authority, to the contrary notwithstanding. [P. 222] . . . . White male citizens, not possessing the qualifications to vote required by law, find no guaranty of the right to exercise that privilege by the first section of the Enforcement Act; but the mandate of the section is explicit and imperative, that all citizens, without distinction of race, color, or previous condition of servitude, if otherwise qualified to vote at any state, territorial, or municipal election, shall be entitled and allowed to vote at all such elections, even though forbidden so to do, on account of race, color, or previous condition of servitude, by the constitution of the State, or by the laws, custom, usage, or regulation of the State or territory, where the election is held. Disability to vote of every kind, arising from race, color, or previous condition of servitude, is declared by the first section of that act to be removed from the colored male citizen; but, unless otherwise qualified by law to vote at such an election, he is no more entitled to enjoy that privilege than a white male citizen who does not possess the qualifications required by law to constitute him a legal voter at such an election. [P. 226] Legal disability to vote at any such election, arising from race, color, or previous condition of servitude, is removed by the Fifteenth Amendment, as affirmed in the first section of the Enforcement Act: but the Congress knew full well that cases would arise where the want of other qualifications, if not removed, might prevent the colored citizen from exercising the right of suffrage at such an election; and the intent and purpose of the second section of the act are to furnish to all citizens an opportunity to remove every such other disability to enable them to become qualified to exercise that right, and to punish persons and officers charged with any duty in that regard who unlawfully and wrongfully refuse or willfully omit to co-operate to that end. Hence it is provided, that where any act is or shall be required to be done as a prerequisite or qualification for voting, and persons or officers are charged in the manner stated with the performance of duties in furnishing to citizens an opportunity to perform such prerequisite or to become qualified to vote, it shall be the duty of every such person and officer to give all citizens, without distinction of race, color, or previous condition of servitude, the same and equal opportunity to perform such prerequisite, and to become qualified to vote. [P. 227]

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. . . . Evidence is entirely wanting to show that the authors of the Enforcement Act ever intended to abrogate any State election law, except so far as it denied or abridges the right of the citizen to vote on account of race, color, or previous condition of servitude. Every discrimination on that account is forbidden by the Fifteenth Amendment; and the first section of the act under consideration provides, as before remarked, that all citizens, otherwise qualified to vote, . . . shall be entitled and allowed to vote, . . . without distinction of race, color, or previous condition of servitude, any constitution, la, &c., to the contrary notwithstanding. State elections laws creating such discriminations are superseded in that regard by the Fifteenth Amendment; but the Enforcement Act furnishes no ground to infer that the law-makers intended to annul the State election laws in any other respect whatever. [P. 232] (3) Citation: Civil Rights Cases, 100 U.S. 1, 13-15, 18, 20, 23 (1883). Background: The Civil Rights Act of 1875 affirmed the equality of all persons in the enjoyment of transportation facilities, hotels, inns, theaters, and places of public amusement. In five separate cases, African American individuals were denied the same accommodations as white persons in violation of the 1875 Act. Here, the Supreme Court declared the Civil Rights Act unconstitutional, finding that the Fourteenth Amendments Section Five Enforcement Clause empowers Congress only to enforce prohibitions on state action. The Court held that the Amendment did not authorize national legislation to regulate private acts of racial discrimination. Text: It is absurd to affirm that, because the rights of life, liberty, and property (which include all civil rights that men have) are, by the amendment, sought to be protected against invasion on the part of the State without due process of law, Congress may therefore provide due process of law for their vindication in every case, and that, because the denial by a State to any persons of the equal protection of the laws is prohibited by the amendment, therefore Congress may establish laws for their equal protection. In fine, the legislation which Congress is authorized to adopt in this behalf is not general legislation upon the rights of the citizen, but corrective legislation, that is, such as may be necessary and proper for counteracting such laws as the States may adopt or enforce, and which, by the amendment, they are prohibited from making or enforcing, or such acts and proceedings as the States may commit or take, and which, by the amendment, they are prohibited from committing or taking. It is not necessary for us to state, if we could, what legislation would be proper for Congress to adopt. It is sufficient for us to examine whether the law in question is of that character. An inspection of the law shows that it makes no reference whatever to any supposed or apprehended violation of the Fourteenth Amendment on the part of the States. It is not predicated on any such view. It proceeds ex directo to declare that certain acts committed by individuals shall be deemed offences, and shall be prosecuted and punished by proceedings in the courts of the United States. It does not profess to be corrective of any constitutional wrong committed by the States; it does not make its operation to depend upon any such wrong committed. It applies equally to cases arising in States, which have the justest laws respecting the personal rights of citizens, and whose authorities are ever ready to enforce such laws, as to those which arise in States that may have violated the prohibition of the amendment. In other words, it steps into the domain of local jurisprudence, and lays down rules for the conduct of individuals in society towards each other, and imposes sanctions [35]

for the enforcement of those rules, without referring in any manner to any supposed action of the States or its authorities. . . . . The truth is that the implication of a power to legislate in this manner is based upon the assumption that, if the States are forbidden to legislate or act in a particular way on a particular subject, and power is conferred upon Congress to enforce the prohibition, this gives Congress power to legislate generally upon that subject, and not merely power to provide modes of redress against such State legislation or action. The assumption is certainly unsound. It is repugnant to the Tenth Amendment of the Constitution, which declares that powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people. . . . . . . . . Of course, these remarks do not apply to those cases in which Congress is clothed with direct and plenary powers of legislation over the whole subject, accompanied with an express or implied denial of such power to the States, as in the regulation of commerce with foreign nations, among the several States, and with the Indian tribes, the coining of money, the establishment of post offices and post roads, the declaring of war, etc. In these cases, Congress has power to pass laws for regulating the subjects specified in every detail, and the conduct and transactions of individuals in respect thereof. But where a subject is not submitted to the general legislative power of Congress, but is only submitted thereto for the purpose of rendering effective some prohibition against particular State legislation or State action in reference to that subject, the power given is limited by its object, and any legislation by Congress in the matter must necessarily be corrective in its character, adapted to counteract and redress the operation of such prohibited State laws or proceedings of State officers. [P. 18] . . . . [The Thirteenth] amendment, as well as the Fourteenth, is undoubtedly self-executing, without any ancillary legislation, so far as its terms are applicable to any existing state of circumstances. By its own unaided force and effect, it abolished slavery and established universal freedom. Still, legislation may be necessary and proper to meet all the various cases and circumstances to be affected by it, and to prescribe proper modes of redress for its violation in letter or spirit. And such legislation may be primary and direct in its character, for the amendment is not a mere prohibition of State laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States. [P. 20] . . . . We must not forget that the province and scope of the Thirteenth and Fourteenth amendments are different: the former simply abolished slavery; the latter prohibited the States from abridging the privileges or immunities of citizens of the United States, from depriving them of life, liberty, or property without due process of law, and from denying to any the equal protection of the laws. The amendments are different, and the powers of Congress under them are different. What Congress has power to do under one it may not have power to do under the other. Under the Thirteenth Amendment, it has only to do with slavery and its incidents. Under the Fourteenth Amendment, it has power to counteract and render nugatory all State laws and proceedings which have the effect to abridge any of the privileges or immunities of citizens of the United States, or to deprive them of life, liberty or property without due process of law, or to deny to any of them the equal protection of the laws. Under the Thirteenth Amendment, the legislation, so far as necessary or proper to eradicate all forms and incidents of slavery and involuntary [36]

servitude, may be direct and primary, operating upon the acts of individuals, whether sanctioned by State legislation or not; under the Fourteenth, as we have already shown, it must necessarily be, and can only be, corrective in its character, addressed to counteract and afford relief against State regulations or proceedings. [P. 23] III. Federalism and Voting Rights (A) Text of the Constitution (1) Citation: U.S. CONST. amend. X. Background: The Tenth Amendment was added to the Constitution largely to appease anti-Federalists who were concerned about the national government encroaching on the powers of the states. The antiFederalists also wanted to make clear that the federal government was one of enumerated and limited powers. The Tenth Amendment was modeled, in part, on Section II of the Articles of Confederation, which states that,[e]ach state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled. Text: The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

(B) Founding-era Materials (1) Citation: THE FEDERALIST NO. 59 (Alexander Hamilton). Background: The Federalist Papers were a series of 85 essays written by Alexander Hamilton, John Jay, and James Madison between October 1787 and May 1788. They were written primarily to urge citizens of New York to support ratification of the United States Constitution. Significantly, the essays explain particular provisions of the Constitution in detail. In Federalist No. 59, Alexander Hamilton discussed the division of authority between the federal and state governments over the question of conducting elections. He explained why the federal government needed, at least, some authority over its own elections, if for no other than reason than to secure its own preservation. Text: [The Convention has] submitted the regulation of elections for the federal government, in the first instance, to the local administrations; which, in ordinary cases, and when no improper views prevail, may be both more convenient and more satisfactory; but they have reserved to the national authority a right to interpose, whenever extraordinary circumstances might render that interposition necessary to its safety. Nothing can be more evident, than that an exclusive power of regulating elections for the National Government, in the hands of the State Legislatures, would leave the existence of the Union entirely at their mercy. They could at any moment annihilate it by neglecting to provide for the choice of persons to administer its affairs. . . . [W]ith so effectual a weapon in their hands as the exclusive power of regulating elections for the National Government a combination of a few such men, in a few of the most considerable States, where the

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temptation will always be the strongest, might accomplish the destruction of the Union, by seizing the opportunity of some casual dissatisfaction among the people (and which, perhaps, they may themselves have excited) to discontinue the choice of members for the Federal House of Representatives. . . . (2) Citation: Virginia Ratifying Convention (Statement of Mr. Nichols) (June 14, 1788), in 2 FOUNDERS CONSTITUTION 266 (eds., Kurland & Lerner, 2000). Background: During the Virginia Ratifying Convention there was a notable discussion on the power of congress to regulate the time, place, and manner of holding elections under Article I, Section 4 of the proposed Constitution. Here, Mr. George Nichols, a Federalist and distinguished member of the Convention, argued that the power is granted to protect the national government and to check the power of the states when they conduct elections in an improper manner. Text: If the State Legislatures, by accident or design or any other cause, would not appoint a place for holding elections, then there might be no election till the time was past for which they were to have been chosen; and as this would eventually put an end to the Union it ought to be guarded against, and it could only be guarded against by giving this discretionary power to the Congress of altering the time, place, and manner of holding the elections. It is absurd to suppose that Congress will exert this power, or change the time, place, and manner established by the States, if the States will regulate them properly, or so as not to defeat the purposes of the Union. Were this the case, it might certainly defeat the government. As the powers vested by this plan in Congress are taken from the state legislatures, they would be prompted to throw every obstacle in the way of the general government. It was then necessary that Congress should have this power. (3) Citation: Virginia Ratifying Convention (Statement of Mr. Madison) (June 14, 1788), in 2 FOUNDERS CONSTITUTION 266 (eds., Kurland & Lerner, 2000). Background: During the Virginia Ratifying Convention, James Madison, another Federalist, also discussed the power of Congress to regulate the time, place, and manner of holding elections. He explained what he viewed as the necessity of the Elections Clause and asserted that it was needed to preserve the national government and promote uniformity in the electoral process. Text: Some States might regulate the elections on the principle of equality, and others might regulate them otherwise. This diversity would be obviously unjust. Elections are regulated now unequally in some states, particularly South Carolina, with respect to Charleston, which is represented by thirty members. Should the people of any state by any means be deprived of the right of suffrage, it was judged proper that it should be remedied by the general government. It was found impossible to fix the time, place, and manner, of the election of representatives, in the Constitution. It was found necessary to leave the regulation of these [elections], in the first place, to the state governments, as being best acquainted with the situation of the people, subject to the control of the general government, in order to enable it to produce uniformity, and prevent its own dissolution. And, considering the state governments and general government as distinct bodies, acting in different and independent capacities for the people, it was thought the particular regulations should be submitted to the former and the general regulations to the latter. Were they exclusively under the control of the states governments the, general government might easily be dissolved. But if they be regulated properly by the state legislatures, the [38]

congressional control will very probably never be exercised. The power appears to me satisfactory and as unlikely to be abused as any part of the Constitution. (4) Citation: THE FEDERALIST NO. 54 (Alexander Hamilton). Background: Federalist No. 54 addressed Article I, Section 2, Clause 3 of the United States Constitution, the Three-Fifths Clause. In this passage, Hamilton claims that if African American individuals were no longer held as slaves (property), it would be untenable to continue to count these persons as only three-fifths of a person for the purpose of calculating representation in the states. They would, instead, need to be counted and represented the same as all other inhabitants in a given state. Text: [I]t is only under the pretext that the laws have transferred the negroes into subjects of property, that a place is disputed them in the computation of numbers; and it is admitted that if the laws were to restore the rights which have been taken away, the negroes could no longer be refused an equal share of representation with the other inhabitants. (5) Citation: JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 815, 816, 817, 823 (1833). Background: Joseph Story, an American jurist and legal scholar, discussed, at length, the division of power between the state and federal government on the question of elections. In his Commentaries on the Constitution, he confirms the views of Hamilton, Madison, and Nichols, noting the need to empower the federal government to check the abuses of state legislatures, when they arise. Text: Nothing can be more evident, than that an exclusive power in the state legislatures to regulate elections for the national government would leave the existence of the Union entirely at their mercy. They could at any time, annihilate it, by neglecting to provide for the choice of persons to administer its affairs. It is no sufficient answer, that such an abuse of power is not probable. Its possibility is, in a constitutional view, decisive against taking such a risk; and there is no reason for taking it. The constitution ought to be safe against fears of this sort; and against temptations to undertake such a project. (815) [T]here will be occasions, in which the people will be excited to undue resentments against the national government. With so effectual a weapon in their hands, as the exclusive power of regulating elections for the national government, the combination of a few men in some of the large states might, by seizing the opportunity of some casual disaffection among the people, accomplish the destruction of the Union. And it ought not to be overlooked, that as a solid government will make us more and more an object of jealousy to the nations of Europe, so there will be a perpetual temptation, on their part, to generate intrigues of this sort for the purpose of subverting it. (816) There is, too, in the nature of such a provision, something incongruous, if not absurd[.] What would be said of a clause introduced into the national constitution to regulate the state elections of the members of the state legislatures? It would be deemed a most unwarrantable transfer of power, indicating a premeditated design to destroy the state government. . . . Why does not the same reasoning apply to the national government?

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What reason is there to suppose, that the state governments will be more true to the Union, than the national government will be to the state governments? (817). The reasons in . . . favour . . . [of the time, place, and manner clause] are . . . of great force and importance. In the first place, the power may be applied by congress to correct any negligence in a state in regard to elections, as well as to prevent a dissolution of the government by designing and refractory states, urged on by some temporary excitements. In the next place, it will operate as a check in favour of the people against any designs of a federal senate, and their constituents ,to deprive the people of the state of their right to choose representatives. In the next place, it provides a remedy for the evil, if any state, by reason of invasion, or other cause, cannot have it in its power to appoint a place, where the citizens can safely meet to choose representatives. In the last place, (as the plan is but an experiment,) it may hereafter become important, with a view to the regular operations of the general government, that there should be a uniformity in the time and manner of electing representatives and senators, so as to prevent vacancies, when there may be calls for extraordinary sessions of congress. If such a time should occur, or such a uniformity be hereafter desirable, congress is the only body possessing the means to produce it. (823)

(C) Legislative Record (1) Citation: CONG. GLOBE, 39TH CONG.,1ST SESS. 1093-94 (February 28, 1866) (statement of Rep. Bingham). Background: Representative Bingham of Ohio, one of the principal drafters of the Fourteenth Amendment, in a lengthy speech, rich with citations to Founding-era materials, asserted here that the national government is and has always been one of limited and express powers. Bingham believed that in order for congress to act, it must be given affirmative authority from the Constitution. He saw the enforcement provision of the Fourteenth Amendment, and later the Fifteenth Amendment, as granting congress the requisite authority to act. Text: I read from No. 45 of the Federalist, a paper written by James Madison: The powers reserved to the [several] States will extend to all the objects which in the ordinary course of affairs concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. I submit that this is the text of the Constitution, except as to the new amendment prohibiting slavery, and providing for legislation to prevent it except as punishment for crime. It stands as the ruling of the Supreme Court of the United States in the great case of McCullough [sic] vs. The State of Maryland, in 4 Wheaton. It stands as the ruling of the same tribunal in the case of Ogden vs. Gibbons, in 9 Peters. It stands, in short, as the uniform ruling of the Supreme Court of the United States, concurring with the continued action of the other departments of the Government from the year 1789 till this hour, there being no law anywhere upon our statute-books to punish penally [sic] any State officer for denying in any State to any citizen of the United States protection in the rights of life, [40]

liberty, and property. It stands, as the very text of the Constitution itself, which declares that The powers not delegated to the United States by the Constitution, nor prohibited by it to the States are reserved to the States respectively or to the people. The word powers controls the whole question. The Government of the United States has no legislative powers, save the express grants and the general grant to pass all laws which shall be necessary and proper to carry into execution all other powers vested by the Constitution in the Government of the United States, or in any department or any officer thereof, and the implied powers necessary to carry the express powers into effect. A grant of power, according to all construction, is a very different thing from a bill of rights. In support of what I have said on this point I ask attention to the following citations: McCullough vs. Maryland, 4 Wheaton, 405, Marshall, C. J., says: The Constitution of the United States is one of limited and expressly delegated powers, which can only be exercised as granted, or in cases enumerated. Speaking of the authority given to Congress by the last clause of the first article, eighth section, of the Constitution, Judge Story in his Commentaries, section 1238, says: The plain import of this clause is, that Congress shall have all the incidental and instrumental powers necessary and proper to carry into execution all the express powers. It neither enlarges any power specifically granted, nor is it a grant of any new power to Congress. In Martin vs. Hunters Lessee, 1 Wheaton, 326, it is said: The Government of the United States can claim no powers which are not granted to it by the Constitution and the powers actually granted are such as are expressly given or given by necessary implication. In Gibbons vs. Ogden, 9 Wheaton, 187, Chief Justice Marshall, speaking of the Constitution, says: This instrument contains an enumeration of powers expressly granted by the people to their Government. In Kents Commentaries, volume one, pages [387-95], there is this language: The correct principle is that whenever the terms in which the power was granted to Congress, or the nature of the power required that it should be exclusively exercised by Congress, the subject was as completely taken away from the State Legislatures as if they had been expressly forbidden to act upon it. You have the express power to define the punishment of treason; the express power to punish the counterfeiting of coin or securities of the United States; the express power to [41]

define and punish piracies and felonies committed upon the high seas, and offenses against the law of nations; exclusive legislative power within this District; express powers to govern all Territories; but where is the express power to define and punish crimes committed in any State by its official officers in violation of the rights of citizens and persons as declared in the Constitution? And from what expressly delegated power in the Constitution can any such power be implied? Passing the anti-slavery amendment, is there any one prepared to say that the bill of rights confers express legislative power on Congress to punish State officers for a willful and corrupt disregard of their oaths and oppressive and flagrantly unjust violations of the declared rights of every citizen and every free man in every free State? . . . . The fact is that Congress has never by penal enactment in all the past attempted to enforce these rights of the people in any State of the Union. Sir, the great question is presented for the consideration of the House and the country, shall these States, be restored in their present condition, and with no new securities taken by the people for the future? (2) Citation: CONG. GLOBE, 40TH CONG., 3D SESS. 858-59 (February 4, 1869) (Statement of Senator Dixon). Background: Senator Dixon, Republican of Connecticut, describes here how a state can still be an independent sovereign while delegating certain powers to the federal government. His discussion analyzed the relationship between the state and federal governments in protecting the rights of individuals. Text: The constitution of Connecticut commences with these words: The people of Connecticut, acknowledging with gratitude the good providence of God in having permitted them to enjoy a free government, do, in order more effectually to define, secure, and perpetuate the liberties, rights, and privileges which they have derived from their ancestors, hereby, after a careful consideration and revision, ordain and establish the following constitution and form of civil government. . . . .After specifying all the qualification of an elector, it is provided that on his taking such oath as may be prescribed by law he shall be an elector. I have read that oath already. I will, for the purpose of having it go into the report of my remarks, ask leave to read it again to the Senate: You, A B, do solemnly swear that you will be true and faithful to the State of Connecticut, and the constitution and government thereof, as a free and independent State, and to the Constitution of the United States; and whenever you shall be called to give your vote or suffrage touching any matter that concerns this State or the United States, you will give it as you shall judge will conduce to the best good of the same, without respect or persons, or fear of any man; so help you God. ****

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If Connecticut is an independent republic she is an independent State; if she is an independent State she is an independent republic; for nobody doubts or denies that she is a republic any more than that she is a State. But, sir, it is not Connecticut alone that makes this claim. **** I beg leave to call the attention of the Senator from Massachusetts [Mr. SUMNER] to the constitution of his state. That constitution goes further in its claim of sovereignty than even the constitution and electors oath of Connecticut: The people of this Commonwealth have the sole and exclusive right of governing themselves as a free, sovereign, and independent State; and do, and forever hereafter shall, exercise and enjoy every power, jurisdiction, and right which is not or may not hereafter be by them expressly delegated to the United States in Congress assembled. **** [Massachusetts] declares herself to be a sovereign republic, a sovereign and independent State; and in the very same clause of the constitution she provides that she shall hereafter exercise and enjoy every power, jurisdiction, and write which is not or may not hereafter be by them expressly delegated to the United States of America; thus showing that a State may be a sovereign republic as well as an independent republic and at the same time delegate certain powers to the Government of the United States. [P.859] (4) Citation: CONG. GLOBE, 40TH CONG., 3D SESS. 1030 (February 9, 1869) (Statement of Senator Dixon). Background: As the debates over the Reconstruction Amendments developed in Congress over the course of several years, Republican congressmen and senators crafted a number of arguments designed to mollify the concerns of Democrats and state officials over the scope of the amendments. Here, Senator Dixon of Connecticut, citing provisions found in existing state constitutions, argued that a state could still be an independent sovereign while delegating certain powers to the federal government. By spelling out this arrangement, which has existed since the Founding, Dixon hoped to demonstrate that in delegating additional authority to the federal government through the Reconstruction Amendments, states were not sacrificing their status as separate, sovereign entities. Text: [The Fifteenth Amendment] is acknowledged by every Senator who has participated in the debate, to be a most important change in the policy of this Government. Heretofore the question of suffrage has been left wholly to the States. The United States Government has refrained from all interferences; the States have been left free to make such qualifications touching suffrage as they might think proper. Whatever those qualification might be, I do knot know that there has been any limit whatever upon the power of the States in this regard. Now, sir, it does seem to me that in regard to a change of this radical character, which proposes to take from the States their power over suffrage and invest that power in the National Government, the people should be heard, that they should express [43]

their sense; that the States should be heard, that they should have an opportunity to say whether they are in favor of this change or not, whether they are willing to give up this great right which they have heretofore enjoyed. It is utterly impossible that they should be heard on this subject as they ought to be heard if the question is submitted to Legislatures, for the reason I have stated, that Legislatures are chosen and it is out of the power of Congress to provide that any given Legislature, any particular specified Legislature, shall act upon this subject. It must go to Legislatures generally. Those already elected have the same power to act as those which may be chosen hereafter. **** I therefore propose . . . that this question shall be left to the conventions of the people in the various states. . . . Now, sir, I propose in the recital of this resolution to strike out the words the Legislatures of where they occur . . . and insert the words conventions in[.]

(D) State Ratification Debates (1) Citation: JOURNAL OF THE SENATE OF THE COMMONWEALTH OF KENTUCKY 586-88 (1869). Background: The following is taken from Kentucky Governor Stevensons executive message delivered to the Senate of Kentucky along with the text of the Fifteenth Amendment. Kentucky, like many of the other border states including Ohio, Maryland, Tennessee and Delaware rejected the Fifteenth Amendment. In Maryland the vote against adoption was unanimous. These states were joined in their rejection by California and Oregon (who feared the extension of suffrage to Chinese immigrants). Stevensons message articulates many commonly held objections to the Fifteenth Amendment during the ratification period. Text: The direct effect of this proposed change is to subvert the structure of our federative system of government under which we have lived and been so signally blessed with happiness, prosperity, and power, during the past eighty years. It ignores the relations which the Government of the United States and those of the separate States bear to each other. It obliterates and destroys the division between the delegated powers vested in the Government of the United States and those vested in the respective State governments, or reserved to the people of the several States respectively. It utterly absorbs the reserved rights of the States. Its purpose is to annihilate the State governments. It takes from them powers expressly vested and reserved, and, by abrogating the partition of power between the Federal and State governments, whose mutual action and reaction were looked to by our fathers as checks to prevent either from encroaching on and absorbing the powers of the other, and as limitations to keep each within their proper sphere, utterly destroys the equilibrium of the entire system. The result must be that a consolidated central government, with the

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States as mere abject appendages, will supplant the wise and beneficent duplex system of government, formed by the Constitution of the United States in 1787. No one can deny that the ratification of the proposed amendment is a total revolution in the character of our governmental system. It destroys and supersedes the original sovereign power of the several States, by depriving them of rights essential to their preservation as States. This amendment elevates the Federal government to the absolute and supreme authority in our federal system against the intention of the framers of government, against the letter and spirit of the Constitution itself, and in violation of the understanding of the people of all the States, when they ratified and adopted it. It is an amendment which must engender excitement and passion, when the people want peace. It involves the very existence of the State governments, by destroying powers which the States reserved as self protecting checks upon Federal usurpation. Again, this proposed amendment is to be hastily submitted, at a period when three of the States have not been allowed by Congress to exercise any of the franchises of sovereign States, and when eight more, though nominally admitted, are still deprived of selfgovernment, and are, at this moment, the subjects of military rule. Above all, this amendment is sought to be ratified by Legislatures chosen by the people before this amendment had passed the Congress of the United States and therefore not chosen as agents who can safely, in their action, reflect the popular will in adoption or rejecting it. . . . . I submit, therefore, the resolution, with the full assurance that you will receive it with that calm dignity and respect which every proposed amendment to the Constitution of the United States should always be received; that you will consider it with a deliberation which wisdom and its own magnitude alike exact; and that you will then act as the honor, safety, and past renown of Kentucky demand. The present dark hour sternly requires of us all to see that we yield to no wild theorythat we attempt no rash experiment! History and experience both admonish us that a period of angry, passionate, political excitement is not a time to meddle with the limitations and checks of our fundamental law, placed there by the wisdom of our fathers as barriers against the frenzy of popular excesses. Let us rather stand with stouter hearts than ever by the old charter of our rights! Let us adhere to the obligations imposed by our respective representative trusts, to uphold and preserve that valued instrument in its pristine vigor and spirit, solemnly impressed that, in despite of the efforts now seeking its overthrow, and the dark shadows which, for the present, obscure it, that can never perish which truth, patriotism, and duty alike bear up. [45]

(E) Case Law (1) Citation: The Collector v. Day, 78 U.S. 11 Wall. 113, 123-24 (1870). Background: In 1864, Congress created a tax on incomes over $1,000. This case involved a challenge to congresss authority to impose taxes on the state and state officials. The Supreme Court, in resolving this question, provided a useful overview of its Reconstruction-era views on the division of sovereignty between the state and federal governments. Text: It is conceded in the case of McCulloch v. Maryland that the power of taxation by the states was not abridged by the grant of a similar power to the government of the Union; that it was retained by the states, and that the power is to be concurrently exercised by the two governments, and also that there is no express constitutional prohibition upon the states against taxing the means or instrumentalities of the general government. But, it was held, and we agree properly held, to be prohibited by necessary implication; otherwise, the states might impose taxation to an extent that would impair, if not wholly defeat, the operations of the federal authorities when acting in their appropriate sphere. . . . . The general government and the states, although both exist within the same territorial limits, are separate and distinct sovereignties, acting separately and independently of each other within their respective spheres. The former in its appropriate sphere is supreme, but the states within the limit of their powers not granted, or, in the language of the Tenth Amendment, reserved, are as independent of the general government as that government within its sphere is independent of the states. (2) Citation: Minor v. Happersett, 88 U.S. 162, 170-71, 171-72, 173-74, 175, 175-76, 17778 (1875). Background: In Minor v. Happersett, the U.S. Supreme Court held that the Constitution does not grant women the right to vote. In reaching its decision, the Court described the relationship between the state and federal governments on questions of suffrage, noting in clear language that the national government has no voters of its own creation. The Court also explored the state constitutions and charters in existence at the time the federal Constitution was drafted, and found that no state permitted all of its citizens to vote. Because the Constitution did not require these states to amend their constitution to comport with the Republican Guarantee Clause, the Court found that a state government could be republican in form, while still denying suffrage rights to some of its citizens. Text: The United States has no voters in the States of its own creation. The elective officers of the United States are all elected directly or indirectly by State voters. The members of the House of Representatives are to be chosen by the people of the States, and the electors in each State must have the qualifications requisite for electors of the most numerous branch of the State legislature. . . . The times, places, and manner of holding elections for Senators and Representatives are to be prescribed in each State by the legislature thereof; but Congress may at any time, by law, make or alter such regulations, except as to the place of choosing Senators. It is not necessary to inquire whether this power of supervision thus given to Congress is sufficient to authorize any interference with

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the State laws prescribing the qualifications of voters, for no such interference has ever been attempted. The power of the State in this particular is certainly supreme until Congress acts. The [fifteenth] amendment did not add to the privileges and immunities of a citizen. It simply furnished an additional guaranty for the protection of such as he already had. No new voters were necessarily made by it. Indirectly it may have had that effect, because it may have increased the number of citizens entitled to suffrage under the constitution and laws of the States, but it operates for this purpose, if at all, through the States and the States laws, and not directly upon the citizen. It is clear, therefore, we think, that the Constitution has not added the right of suffrage to the privileges and immunities of citizenship as they existed at the time it was adopted. This makes it proper to inquire whether suffrage was coextensive with the citizenship of the States at the time of its adoption. If it was, then it may with force be argued that suffrage was one of the rights which belonged to citizenship, and in the enjoyment of which every citizen might be protected. But if it was not, the contrary may with propriety be assumed. [PP.171-72]. When the Federal Constitution was adopted, all the States, with the exception of Rhode Island and Connecticut, had constitutions of their own. These two continued to act under their charters from the Crown. Upon an examination of those constitutions we find that in no State were all citizens permitted to vote. Each State determined for itself who should have that power. Thus, in New Hampshire, "every male inhabitant of each town and parish with town privileges, and places unincorporated in the State, of twenty one years of age and upwards, excepting paupers and persons excused from paying taxes at their own request," were its voters; in Massachusetts "every male inhabitant of twenty-one years of age and upwards, having a freehold estate within the commonwealth of the annual income of three pounds, or any estate of the value of sixty pounds;" in Rhode Island "such as are admitted free of the company and society" of the colony; in Connecticut such persons as had "maturity in years, quiet and peaceable behavior, a civil conversation, and forty shillings freehold or forty pounds personal estate," if so certified by the selectmen; in New York "every male inhabitant of full age who shall have personally resided within one of the counties of the State for six months immediately preceding the day of election . . . if during the time aforesaid he shall have been a freeholder, possessing a freehold of the value of twenty pounds within the county, or have rented a tenement therein of the yearly value of forty shillings, and been rated and actually paid taxes to the State;" in New Jersey "all inhabitants . . . of full age who are worth fifty pounds, proclamation-money, clear estate in the same, and have resided in the county in which they claim a vote for twelve months immediately preceding the election;" in Pennsylvania "every freeman of the age of twentyone years, having resided in the State two years next before the election, and within that time paid a State or county tax which shall have been assessed at least six months before the election;" in Delaware and Virginia "as exercised by law at present;" in Maryland "all freemen above twenty-one years of age having a freehold of fifty acres of land in the county in which they offer to vote and residing therein, and all freemen having property in the State above the value of thirty pounds current money, and having resided in the county in which they offer to vote one whole year next preceding the election;" in North Carolina, for senators, "all freemen of the age of twenty-one years who have been inhabitants of any

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one county within the State twelve months immediately preceding the day of election, and possessed of a freehold within the same county of fifty acres of land for six months next before and at the day of election," and for members of the house of commons "all freemen of the age of twenty-one years who have been inhabitants in any one county within the State twelve months immediately preceding the day of any election, and shall have paid public taxes;" in South Carolina "every free white man of the age of twenty-one years, being a citizen of the State and having resided therein two years previous to the day of election, and who hath a freehold of fifty acres of land, or a town lot of which he hath been legally seized and possessed at least six months before such election, or (not having such freehold or town lot), hath been a resident within the election district in which he offers to give his vote six months before said election, and hath paid a tax the preceding year of three shillings sterling towards the support of the government;" and in Georgia such "citizens and inhabitants of the State as shall have attained to the age of twenty-one years, and shall have paid tax for the year next preceding the election, and shall have resided six months within the county. In this condition of the law in respect to suffrage in the several States it cannot for a moment be doubted that if it had been intended to make all citizens of the United States voters, the framers of the Constitution would not have left it to implication. So important a change in the condition of citizenship as it actually existed, if intended, would have been expressly declared. [PP.172-73] . . . . . [A]fter the adoption of the fourteenth amendment, it was deemed necessary to adopt a fifteenth. . . . The fourteenth amendment had already provided that no State should make or enforce any law which should abridge the privileges or immunities of citizens of the United States. If suffrage was one of these privileges or immunities, why amend the Constitution to prevent its being denied on account of race, &c.? Nothing is more evident than that the greater must include the less, and if all were already protected why go through the form of amending the Constitution to protect a part? [P.175] . . . . The guaranty is of a republican form of government. No particular government is designated as republican, neither is the exact form to be guaranteed, in any manner especially designated. Here, as in other parts of the instrument, we are compelled to resort elsewhere to ascertain what was intended. The guaranty necessarily implies a duty on the part of the States themselves to provide such a government. All the States had governments when the Constitution was adopted. In all the people participated to some extent, through their representatives elected in the manner specially provided. These governments the Constitution did not change. They were accepted precisely as they were, and it is, therefore, to be presumed that they were such as it was the duty of the States to provide. Thus we have unmistakable evidence of what was republican in form, within the meaning of that term as employed in the Constitution. As has been seen, all the citizens of the States were not invested with the right of suffrage. In all, save perhaps New Jersey, this right was only bestowed upon men and not upon all of them. Under these circumstances it is certainly now too late to contend that a government is not republican, within the mean of this guaranty in the Constitution, because women are not made voters. [P.175-76]

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Certainly, if the courts can consider any question settled, this is one. For nearly ninety years the people have acted upon the idea that the Constitution, when it conferred citizenship, did not necessarily confer the right of suffrage. If uniform practice long continued can settle the construction of so important a instrument as the Constitution of the United States confessedly is, most certainly it has been done here. Our province is to decide what the law is, not to declare what it should be. [PP. 177-78] (3) Citation: United States v. Cruikshank et al., 92 U.S. 542, 551, 555-56 (1875). Background: United States v. Cruikshank involved an indictment for conspiracy under the sixth section of the Enforcement Act of 1870. Three men were indicted for participating in the murder of nearly one hundred African Americans in Colfax, Louisiana, in 1873. While the Courts decision rested in large part upon its criticism of a poorly drafted indictment, the Court usefully described the suffrage rights granted by both the state and federal governments. The Court declared that the right to vote in the states comes from the state legislature, while the right to be free from discrimination on account of race, color, and previous condition of servitude when voting comes from the federal government. Of noted consequence was the Courts strict construction of the intent requirement in the Enforcement Act, which ultimately impacted future federal efforts to prevent violence against African Americans seeking to vote. Text: The government of the United States is one of delegated powers alone. Its authority is defined and limited by the Constitution. All powers not granted to it by that instrument are reserved to the States or the people. No rights can be acquired under the Constitution or laws of the United States, except such as the government of the United States has the authority to grant or secure. All that cannot be granted or secured are left under the protection of the States. . . . . In Minor v. Happersett, 21 Wall. 178, we decided that the Constitution of the United States has not conferred the right of suffrage upon anyone, and that the United States has no voters of their own creation in the States. In United States v. Reese et al., . . . we hold that the fifteenth amendment has invested the citizens of the United States with a new constitutional right, which is, exemption from the discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude. From this, it appears that the right of suffrage is not a necessary attribute of national citizenship; but that exemption from discrimination in the exercise of that right on account of race, &c., is. The right to vote in the States comes from the States, but the right of exemption from the prohibited discrimination comes from the United States. The first has not been granted or secured by the Constitution of the United States, but the last has been. Inasmuch, therefore, as it does not appear in these counts that the intent of the defendants was to prevent these parties from exercising their right to vote on account of their race, &c., it does not appear that it was their intent to interfere with any right granted or secured by the Constitution or laws of the United States. [P. 555-56]

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IV. Standard of Review/Separation of Powers (A) Legislative Records (1) Citation: CONG. GLOBE, 39TH CONG., 1ST SESS. 3038 (June 8, 1866) (statement of Senator Yates). Background: When drafting the Reconstruction Amendments, congressional Republicans were mindful of a number of Supreme Court decisions, most notably Dred Scott v. Sandford, 60 U.S. 393 (1857), which deprived persons of African descent of a number of personal and property rights. Here, Senator Richard Yates of Indiana explains that the text of the Fourteenth Amendment stands as a shield against future judicial tyranny, by removing the subject of citizenship from the justices hands. Congress, through its amendment power, settled the question of citizenship. Text: We have here, in the Constitution of the United States of America, a guarantee which protects us from future judicial tyranny such as we have experienced under the decisions of the Supreme Court. We have a declaration as to who are citizens of the United States. (2) Citation: CONG. GLOBE, 40TH CONG., 3D SESS. 984 (February 8, 1869) (statement of Senator Ross). Background: Republican Senator Edmund Ross of Kansas, during a speech on the perils of decentralization, discussed his belief that congress is the body charged with settling controversies between the states on questions of individual rights guaranteed by the federal Constitution. Text: The Constitution guaranties that there shall be no infringement of individual rights by the States. Is that guarantee regarded by the States or enforced by the General Government? Certainly it will not be contended that it is while one third of the citizens of the southern States are denied the rights of citizens of many of the northern States, or while one of the States of the Union ejects from office persons whose right to official position is undisputed in many others, or while Massachusetts requires the citizens of Illinois to possess a prescribed degree of education before she will admit him to her polls, or while New York compels the voter in Iowa and Minnesota to show a fixed amount of real property before he is allowed to vote under her laws. These irregularities existing, who is to be the umpire between the several States for the settlement of controversies which are liable to arise out of them? Who is to stand as the champion of the individual and enforce the guarantees of the Constitution in his behalf as against the so-called sovereignty of the States? Clearly no power but that of the central Government is or can be competent for their adjustment, and it is equally clear that unless that power may be enforced by the central Government, that Government fails of the object of its institution and develops within itself the seeds of its own disintegration; for when Government fails to protect the individual in any of his rights, it forfeits to the degree of that failure its claim upon his allegiance and support. This may be the direct and legitimate result of withholding from the General Government the very power which it is

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now proposed to assert, and which is opposed from the apprehension of a centralization of political power in the Federal Government. (3) Citation: CONG. GLOBE, 39TH CONG., 1ST SESS. 1065 (February 27, 1866) (Statement of Representative Hale). Background: Representative Hale, Republican of New York, while counseling against too great an expansion of federal power, discussed the then judicially and legislatively settled meaning of necessary and proper as it related to the Reconstruction Amendments. Text: It has been settled judicially, as well as legislatively, that the words necessary and proper, which are found in this amendment, as well as in the original Constitution, by no means imply indispensable necessity; that the legislation necessary for carrying into execution powers is not the legislation without which the thing cannot be done. But it has been expressly settled that it means simply needful, requisite, conducive to, and under that settled interpretation of his language I ask the gentleman where he will draw the line as to the power which Congress may exercise as the necessary and proper legislation to attain these very general results? It seems to me, sir, that this, of all kinds of legislation, the most dangerous. I believe that the tendency in this country has been from the first too much toward the accumulation and strengthening of central Federal power. During the last five years of war and rebellion, that tendency has necessarily and inevitably increase. It must always happen that when the life of the nation is menaced the strength and extent of central power will be augmented. In such emergencies the nation arrogates to itself power which it never thought of possessing or exercising in time of peace. . . . . I submit to gentlemen whether it is not now time that we should check that current. I believe that this is, of all times, the last when we should undertake a radical amendment of the Constitution, so immensely extending the power of the Federal Government, and derogating from the power of the States. (4) Citation: CONG. GLOBE, 39TH CONG.,1ST SESS. 1118 (March 1, 1866) (statement of Rep. Wilson). Background: Building on the discussion by Mr. Hale, Representative Wilson of Iowa explained his views on how courts should interpret congresss exercise of expressly delegated authority. Citing McCulloch v. Maryland, he finds that because the end of maintaining citizens freedom is legitimate, unless congress is prohibited from acting, they are authorized to adopt appropriate legislation aimed at achieving this end. Furthermore, Wilson believes that congress is the sole judge of the necessity of a measure enacted under an expressly delegated power. Text: Here, certainly, is an express delegation of power. How shall it be exercised? Who shall select the means through which the office of this power shall effect the end designed by the people when they placed this provision in the Constitution? Happily, sir, we are not without light on these questions from the Supreme Court. In the celebrated case of McCulloch vs. The State of Maryland, Chief Justice Marshall, in delivering the opinion of the courts, says: We admit, as all must admit, that the powers of the Government are limited, and [51]

that its limits are not to be transcended. But we think the sound construction of the Constitution must allow the national Legislature that discretion with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitution. -1 Wheatons Reports, p. 420. Who will say that the means provided by this second section of the bill are not appropriate for the enforcement of the power delegated to Congress by the second section of the amendment abolishing slavery . . . . The end is legitimate, because it is defined by the Constitution itself. The end is the maintenance of freedom to the citizen. What means more appropriate could be selected that that which punishes a man by commonly inflicted punishments through the ordinary channels of the law and the courts for depriving the citizens of those rights which, while he enjoys them, are his sure defense against efforts to reduce him to slavery? A man who enjoys the civil rights mentioned in this bill cannot be reduced to slavery. Anything which protects him in the possession of these rights insures him against reduction to slavery. This settled the appropriateness of this measure, and that settles its constitutionality. Of the necessity of the measure, Congress is the sole judge. This is clearly announced in the case just cited, and in this language: Where the law is not prohibited, and is really calculated to effect any of the objects intrusted [sic] to the Government, to undertake here to inquire into the degree of its necessity, would be to pass the line which circumscribes the judicial department and to tread on legislative grounds. [McCulloch v. Maryland at] 423. If this bill shall pass both Houses and become a law, that fact of itself determines the question of necessity, and from this decision there is no appeal except to another Congress. This is the doctrine of the Constitution, as declared by the highest judicial tribunal known to our laws. **** But, sir, this bill may have a broader application than that which would reach the cases of persons designed to be protected by the delegation of power contained in the amendment of the Constitution upon which I have commented. If it does reach beyond these cases, and in its enlarged operation step out of the bounds of this express delegation of power, upon what, in this more extended sphere, must it rely for support? I have already said, If citizens of the United States, as such are entitled to possess and enjoy the great fundamental civil rights which it is the true office of Government to protect, and to equality in the exemptions of the law, we must of necessity be clothed with the power to insure to each and every citizen these things which belong to him as a constituent member of the great national family. Whatever these great fundamental rights are, we must be invested with the power to legislate for their protection or our [52]

Constitution fails in the first and most important office of government.

(B) Case Law (1) McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819) (emphasis added). Background: In 1816, congress chartered the Second Bank of the United States. In 1818, the state of Maryland passed legislation to impose taxes on the bank. In this case, the Court explored two questions whether Congress had the authority to establish the bank and whether Maryland unconstitutionally interfered with Congresss power. In answering this question, the Supreme Court laid out the standard it would use to review duly enacted pieces of legislation. That standard has come to be known as rational basis review. Text: We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers its confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional. (2) Citation: United States v. Rhodes, 27 F. Cas. 785, 791-92, 792, 793 (C.C.D. Ky. 1866) (No. 16,151). Background: United States v. Rhodes involved a challenge in the U.S. District Court for the District of Kentucky to the constitutionality of An Act to protect all Persons in the United States in their Civil Rights, and to furnish the Means for their Vindication. The District Court upheld the Civil Rights Act as constitutional, finding it an appropriate method of exercising the power conferred on congress by the Thirteenth Amendment. Text: Judge Story says: In the practical application of government, then, the public functionaries must be left at liberty to exercise the powers with which the people, by the constitution and laws, have entrusted them. They must have a wide discretion as to the choice of means; and the only limitations upon the discretion would seem to be that the means are appropriate to the end; and thus must admit of considerable latitude, for the relation between the action and the end, as have been justly remarked, is not always so direct and palpable as to strike the eye of every observer. If the end be legitimate, and within the scope of the constitution, all the means which are appropriate, and which are plainly adapted to that end, and which are not prohibited, may be constitutionally employed to carry it into effect. 1 Story, Const. 432. . . . . Before proceeding further, it would be well to pause and direct our attention to what has been deemed appropriate in the execution of some of the other powers confided to congress in like general terms. [53]

. . . . (2) To regulate commerce with foreign nations, among the several states, and with the Indian tribes. This carries with it the power to build and maintain lighthouses, piers, and breakwaters; to employ revenue cutters; to cause surveys to be made of coasts, rivers, and harbors; to appoint all necessary officers, at home and abroad; to prescribe their duties, fix their terms of office and compensation; and to define and punish all crimes relating to commerce within the sphere of the constitution. U.S. v. Coombs, 12 Pet. [37 U.S.] 72; U.S. v. Holliday, 3 Wall. [70 U.S.] 407. [P. 792] . . . . It is an axiom of our jurisprudence, that an act of congress is not to be pronounced unconstitutional unless the defect of power to pass it is so clear as to admit of no doubt. Every doubt is to be resolved in favor of the validity of the law. The opposition between the constitution and the law should be such, that the judge feels a clear and strong conviction of their incompatibility with each other. Fletcher v. Peck, 6 Cranch [10 U.S.] 128. The presumption, indeed, must always be in favor of the validity of laws, if the contrary is not clearly demonstrated. Cooper v. Telfair, 4 Dall. [4 U.S.] 18. A remedial power in the constitution is to be construed liberally. Chisholm v. Georgia, 2 Dall [2 U.S.] 476. . . . . Without any other provision than the first section of the amendment, congress would have had authority to give full effect to the abolition of slavery thereby decreed. It would have been competent to put in requisition the executive and judicial, as well as the legislative power, with all the energy needful for that purpose. The second section of the amendment was added out of abundant caution. It authorizes congress to select, from time to time, the means that might be deemed appropriate to the end. It employs a phrase which had been enlightened by well-considered judicial application. Any exercise of legislative power within its limits involves a legislative, and not a judicial question. It is only when the authority given has been clearly exceeded, that the judicial power can be invoked. Its office, then, is to repress and annul the excess; beyond that it is powerless. [P.793]

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