For every crime there must be a punishment; for every wrong there must
be a remedy, and for every grievance there must be a redress. That this
state of things is wrong and unjust, if not unlawful, no fair-minded
person will deny. It is not only wrong and unjust to the colored people
of the State, who are thus denied a voice in the government under which
they live and to support which they are taxed, but it also involves a
grave injustice to the States in which the laws are obeyed and the
National Constitution,--including the war amendments to the same,--is
respected and enforced. I am aware of the fact that it is claimed by
those who are responsible for what is here complained of that, while
the acts referred to may be an evasion if not a violation of the spirit
of the Constitution, yet, since they do not violate the letter of the
Constitution the complaining parties are without a remedy, and therefore
have no redress. This contention is not only weak in logic but unsound
in law, even as construed by the Supreme Court of the United States,
which tribunal seems to be the last to which an appeal can be
successfully made, having for its object the enforcement of the
Constitution and laws so far as they relate to the political and civil
rights of the colored Americans. That a State can do by indirection what
it cannot do directly, is denied even by the Supreme Court of the United
States.
That doctrine was clearly and distinctly set forth in a decision of the
Court rendered by Mr. Justice Strong, which was concurred in by a
majority of his associates. In that decision it was held that
affirmative State action is not necessary to constitute race
discrimination by the State. In other words, in order to constitute
affirmative State action in violation of the Constitutional mandate
against distinction and discrimination based on race or color, it is not
necessary that the State should pass a law for that purpose. The State,
the Court declared, acts through its agents, Legislative, Executive and
Judicial. Whenever an agent or representative of the State acts, his
acts are binding upon the State, and the effect is the same as if the
State had passed a law for that purpose. If a judge, for example, in the
selection of jurors to serve in his court should knowingly and
intentionally allow a particular race to be excluded from such service
on account of race or color, the effect would be the same as if the
State, through its Legislature, had passed a law for that purpose. The
colored men in the States complained of, have been disfranchised in
violation of the spirit if not the letter of the Constitution, either by
affirmative State action, or through and by the State's agents and
representatives. Their acts, therefore, constitute State action as fully
as if the Legislature had passed a law for that purpose.
CHAPTER XXVI
MISSISSIPPI AND THE NULLIFICATION OF THE FIFTEENTH AMENDMENT
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