Contemporary American History, 1877-1913Beard, Charles A. (Charles Austin)
History
Contemporary American History, 1877-1913
Beard, Charles A. (Charles Austin)
United States -- History -- 1865-1921
Inasmuch as the attacks on private rights in property, franchises, and
corporate privileges came principally from the state legislatures, it
was necessary to find some way to subject them to legal control--some
juristic process for translating _laissez faire_ into a real restraining
force. These leading statesmen and lawyers were not long in finding the
way. The Federal courts were obviously the proper instrumentalities, and
the broad restrictions laid upon the states by the Fourteenth Amendment
no less obviously afforded the constitutional foundation for the science
of legislative nihilism. "No state," ran the significant words of that
Amendment, "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."
What unseen implications lay within these phrases the most penetrating
thinkers divined at once. Protest was made by the New Jersey legislature
against the Fourteenth Amendment in 1866 on the ground that it would
destroy all the essential rights of a state to control its internal
affairs; and such opinion was widespread. But the most common view was
to the effect that the Amendment would be used principally to surround
the newly emancipated slaves with safeguards against their former
masters who might be tempted to restore serfdom under apprentice and
penal laws and other legal guises. Still there is plenty of evidence to
show that those who framed the Fourteenth Amendment and pushed it
through Congress had in mind a far wider purpose--that of providing a
general restraining clause for state legislatures.
Public-domain text, read in full here on John Shaqi.
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