CHAPTER X

FEDERAL SUPERVISION OF STATE DUTIES

IN the foregoing pages there has been set forth in some detail the principles which govern the question of the extent to which the Federal Government may compel the performance by the governments of the individual States of duties constitutionally laid upon them. We turn now to a topic which, while closely related to the one of which we have been speaking, is yet distinct from it. This topic is the extent of the legal power of the National Government to examine state laws and supervise their execution with a view to seeing that they do not infringe in any way upon the rights secured to individuals by the federal Constitution and laws. The subject now to be considered is thus the negative power of the United States Government to prevent the violation of federal rights by the States, and not the positive power, the extent of which we have just examined, of compelling the performance by the States of their constitutional duties.

Prior to the adoption of the Fourteenth Amendment in 1868 the laws of the individual States, so long as they related to subjects over which the States had the right of legislation, were not subject to examination in federal courts with a view to ascertaining

whether they deprived any one of life, liberty, or property without due process of law, or denied to any one equal legal protection. The first nine amendments. to the federal Constitution which enumerated the fundamental rights of individuals that might not be violated were, from the beginning, construed to limit not the States but the Federal Government only. Until, therefore, the Fourteenth Amendment was adopted there was, so far as the federal Constitution and laws were concerned, nothing to prevent the several States from enacting laws which denied to their own citizens the equal protection of the laws, or deprived them of life, liberty, and property without due process of law. The only limitation laid upon the States by the Constitution was that they should enact no bills of attainder, no ex post facto laws, or laws impairing the obligation of contracts. As a matter of fact, indeed, all of the States had by their own constitutions taken from their legislatures the power to enact laws upon certain specified topics, and forbidden them to violate certain declared principles of justice and right. But the adoption of these constitutional limitations was purely voluntary upon their part.

In 1868, however, as one of the results of the Civil War, the Fourteenth Amendment was adopted, which, after declaring that "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," goes on to provide that "no State shall make or enforce any law which shall abridge the privileges and 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."

For a number of years after the adoption of this Amendment it was by no means certain but that the effect of the above-cited provisions would be to endow the United States Government with additional powers so great as fundamentally to alter the very nature of the Union itself. There can be no question but that the clauses of the Amendment that we have quoted were easily susceptible of an interpretation that would have given them this result, and that, at the time they were framed and adopted by Congress and ratified by the necessary number of state legislatures, there were very many who believed that they would, and desired that they should, work this revolutionary change in the American Constitutional system.1 Fortunately, however, as all must now believe, the Supreme Court was able and was led to give to these words a construction that robbed them of such an effect. This it did in the following manner.

In 1875 Congress passed a so-called Civil Rights Act, fixing generally the penalties to which state officials should be subject for depriving any citizen of the United States of any of the rights secured him by the Thirteenth and Fourteenth Amendments, and declaring specifically that negroes should receive the same

1 See especially the debates attendant upon the passage of the Civil Rights Bill of 1866, the doubts as to the constitutionality of which led to the adoption of the Fourteenth Amendment. See also the dissenting opinion of Justice Field in the Civil Rights Cases, 109 U. S., 3, in which Justices Swayne, Bradley, and Chief Justice Chase concurred.

treatment at public inns, hotels, railways, theaters, etc., as that enjoyed by white persons. The importance of this act lay in the fact that by passing it Congress indicated that it interpreted the Fourteenth Amendment as giving it power not simply to punish persons who should deprive others of any of the rights mentioned in that Amendment, but itself to determine specifically what those rights should be. If this were to be accepted as the correct interpretation of the power of Congress under this Amendment, it was clear that the reserved powers of the States would henceforth be at the mercy of the federal legislative body; for thus the way would be opened to Congress, should it see fit, to convert by its statutes all private rights into federal rights and as such exclude them from state regulation or violation.

In the case of Ex parte Virginia (100 U. S., 339) that portion of the Civil Rights Act which forbade state officials to deny to any one the equal protection of the law was held constitutional, the Court saying: "The prohibitions of the Fourteenth Amendment are addressed to the States. . . . A State acts by its legislature, its executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a state government, deprives another of life, liberty, or property without due process of law, or denies or takes away the equal protection of the laws, violates the consti

tutional inhibition; and as he acts in the name of and for the State, and is clothed with the State's power, his act is that of the State. This must be so, or the constitutional prohibition has no meaning. In Strauder v. West Virginia (100 U. S., 303) the Supreme Court held unconstitutional and void an act of West Virginia which excluded negroes from juries.

In the Civil Rights Cases (109 U. S., 3), however, the Supreme Court declared unconstitutional a portion of the Civil Rights Act of 1875 and laid down a doctrine that very considerably lessened the power of Congress under the Fourteenth Amendment. The doctrine thus declared was that the invasion of rights by private individuals was not a subject concerning which Congress might legislate. The prohibitions of the Amendments being leveled at the States, Congress, the Court asserted, might legislate only regarding the violation of those Amendments by the States. "This," said the Court, "is the legislative power conferred upon Congress, and this is the whole of it. It does not invest Congress with power to legislate upon subjects which are within the domain of state legislation; but to provide modes of relief against state legislation or state action of the kind referred to. It does not authorize Congress to create a code of municipal law for the regulation of private rights. . . . Until some state law has been passed, or some state action through its officers or agents has been taken, adverse to the right of citizens sought to be protected by the Fourteenth Amendment, no legislation of the United States under said Amendment, nor any proceedings under such legislation can be called into activity." Continuing,