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 an 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 for
the enforcement of those rules without referring in any manner to any
supposed action of the State or its authorities.
If this legislation is appropriate for enforcing the prohibitions of
the amendment, it is difficult to see where it is to stop. Why may
not Congress with equal show of authority enact a code of laws for
the enforcement and vindication of all rights of life, liberty and
property? If it is supposable that the States may deprive persons of
life, liberty and property without due process of law (and the amendment
itself does suppose this), why should not Congress proceed at once to
prescribe due process of law for the protection of every one of these
fundamental rights in every possible case, as well as to prescribe equal
privileges in inns, public conveyances and theatres? 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.
Public-domain text, read in full here on John Shaqi.
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