214, where the court said that "rights and immunities created by and dependent upon the constitution of the United States can be protected by congress. The form and manner of the protection may be such as congress, in the legitimate exercise of its discretion, shall provide. These may be varied to meet the necessities of the particular right to be protected." It was distinctly reaffirmed in Strauder v. West Virginia, 100 U. S. 310, where we said that "a right or immunity created by the constitution or only guarantied by it, even without any express delegation of power, may be protected by congress." Will zny one claim, in view of the declarations of this court in former cases, or even without them, that exemption of colored citizens within their states from race discrimination, in respect of the civil rights of citizens, is not an immunity created or derived from the national constitution?

This court has always given a broad and liberal construction to the constitution, so as to enable congress, by legislation, to enforce rights secured by that instrument. The legislation congress may enact, in execution of its power to enforce the provisions of this amendment, is that which is appropriate to protect the right granted. Under given circumstances, that which the court characterizes as corrective legislation might be sufficient. Under other circumstances primary direct legislation may be required. But it is for congress, not the judiciary, to say which is best adapted to the end to be attained. In U. S. v. Fisher, 2 Cranch, 358, this court said that "congress must possess the choice of means, and must be empowered to use any means which are in fact conducive to the exercise of a power granted by the constitution." "The sound construction of the constitution," said Chief Justice MARSHALL, "must allow to 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 consistent with the letter and spirit of the constitution, are constitutional." McCulloch v. Maryland, 4 Wheat. 423.

Are the pow

Must these rules of construction be now abandoned? ers of the national legislature to be restrained in proportion as the rights and privileges, derived from the nation, are more valuable? Are constitutional provisions, enacted to secure the dearest rights of freemen and citizens, to be subjected to that rule of construction, applicable to private instruments, which requires that the words to be interpreted must be taken most strongly against those who employ them? Or shall it be remembered that "a constitution of government, founded by the people for themselves and their posterity, and for objects of the most momentous nature,-for perpetual union, for the establishment of justice, for the general welfare, and for a

perpetuation of the blessings of liberty,-necessarily requires that every interpretation of its powers should have a constant reference to these objects? No interpretation of the words in which those powers are granted can be a sound one which narrows down their ordinary import so as to defeat those objects." 1 Story, Const. § 422. The opinion of the court, as I have said, proceeds upon the ground that the power of congress to legislate for the protection of the rights and privileges secured by the fourteenth amendment cannot be brought into activity except with the view, and as it may become necessary, to correct and annul state laws and state proceedings in hostility to such rights and privileges. In the absence of state laws or state action, adverse to such rights and privileges, the nation may not actively interfere for their protection and security. Such I understand to be the position of my brethren. If the grant to colored citizens of the United States of citizenship in their respective states imports exemption from race discrimination, in their states, in respect of the civil rights belonging to citizenship, then, to hold that the amendment remits that right to the states for their protection, primarily, and stays the hands of the nation, until it is assailed by state laws or state proceedings, is to adjudge that the amendment, so far from enlarging the powers of congress,-as we have heretofore said it did,— not only curtails them, but reverses the policy which the general government has pursued from its very organization. Such an interpretation of the amendment is a denial to congress of the power, by appropriate legislation, to enforce one of its provisions. In view of the circumstances under which the recent amendments were incorporated into the constitution, and especially in view of the peculiar character of the new rights they created and secured, it ought not to be pre-* sumed that the general government has abdicated its authority, by national legislation, direct and primary in its character, to guard and protect privileges and immunities secured by that instrument. Such an interpretation of the constitution ought not to be accepted if it be possible to avoid it. Its acceptance would lead to this anomalous result that whereas, prior to the amendments, congress, with the sanction of this court, passed the most stringent laws-operating directly and primarily upon states, and their officers and agents, as well as upon individuals-in vindication of slavery and the right of the master, it may not now, by legislation of a like primary and direct character, guard, protect, and secure the freedom established, and the most essential right of the citizenship granted, by the constitutional amendments. I venture, with all respect for the opinion of others, to insist that the national legislature may, without transcending the limits of the constitution, do for human liberty and the fundamental rights of American citizenship, what it did, with the sanction of this court, for the protection of slavery and the rights of the masters of fugitive slaves. If fugitive slave laws, providing modes and prescribing penalties whereby the master could seize and re

cover his fugitive slave, were legitimate exertions of an implied power to protect and enforce a right recognized by the constitution, why shall the hands of congress be tied, so that-under an express power, by appropriate legislation, to enforce a constitutional provision, granting citizenship-it may not, by means of direct legislation, bring the whole power of this nation to bear upon states and their officers, and upon such individuals and corporations exercising public functions, as assume to abridge, impair, or deny rights confessedly secured by the supreme law of the land?

It does not seem to me that the fact that, by the second clause of the first section of the fourteenth amendment, the states are expressly prohibited from making or enforcing laws abridging the privileges and immunities of citizens of the United States, furnishes any sufficient reason for holding or maintaining that the amendment was intended to deny congress the power, by general, primary, and direct legislation, of protecting citizens of the United States, being also citizens of their respective states, against discrimination, in respect to their rights as citizens, founded on race, color, or previous condition of servitude. Such an interpretation of the amendment is plainly repugnant to its fifth section, conferring upon congress power, by appropriate legislation, to enforce, not merely the provisions containing prohibitions upon the states, but all of the provisions of the amendment, including the provisions, express and implied, of the grant of citizenship in the first clause of the first section of the article. This alone is sufficient for holding that congress is not restricted to the enactment of laws adapted to counteract and redress the operation of state legislation, or the action of state officers of the character prohibited by the amendment. It was perfectly well known that the great danger to the equal enjoyment by citizens of their rights, as citizens, was to be apprehended, not altogether from unfriendly state legislation, but from the hostile action of corporations and individuals in the states. And it is to be presumed that it was intended, by that section, to clothe congress with power and authority to meet that danger. If the rights intended to be secured by the act of 1875 are such as belong to the citizen, in common or equally with other citizens in the same state, then it is not to be denied that such legislation is appropriate to the end which congress is authorized to accomplish, viz., to protect the citizen, in respect of such rights, against discrimination on account of his race. As to the prohibition in the fourteenth amendment upon the making or enforcing of state laws abridging the privileges of citizens of the United States, it was impossible for any state to have enforced laws of that character. judiciary could have annulled all such legislation under the provision that the constitution shall be the supreme law of the land, anything in the constitution or laws of any state to the contrary notwithstanding. The states were already under an implied prohibition not to abridge any privilege or immunity belonging to citizens of the United

The

States as such. Consequently, the prohibition upon state laws hostile to the rights belonging to citizens of the United States, was intended only as an express limitation on the powers of the states, and was not intended to diminish, in the slightest degree, the authority which the nation has always exercised, of protecting, by means of its own direct legislation, rights created or secured by the constitution. The purpose not to diminish the national authority is distinctly negatived by the express grant of power, by legislation, to enforce every provision of the amendment, including that which, by the grant of citizenship in the state, secures exemption from race discrimination in respect of the civil rights of citizens.

These

It is said that any interpetation of the fourteenth amendment different from that adopted by the court, would authorize congress to enact a municipal code for all the states, covering every matter affecting the life, liberty, and property of the citizens of the several states. Not so. Prior to the adoption of that amendment the constitutions of the several states, without, perhaps, an exception, secured all persons against deprivation of life, liberty, or property, otherwise than by due process of law, and, in some form, recognized the right of all persons to the equal protection of the laws. rights, therefore, existed before that amendment was proposed or adopted. If, by reason of that fact, it be assumed that protection in these rights of persons still rests, primarily, with the states, and that congress may not interfere except to enforce, by means of corrective legislation, the prohibitions upon state laws or state proceedings inconsistent with those rights, it does not at all follow that privileges which have been granted by the nation may not be protected by primary legislation upon the part of congress. The rights and immunities of persons recognized in the prohibitive clauses of the amend-, ments were always under the protection, primarily, of the states, while rights created by or derived from the United States have always been, and, in the nature of things, should always be, primarily, under the protection of the general government. Exemption from race discrimination in respect of the civil rights which are fundamental in citizenship in a republican government, is, as we have seen, a new constitutional right, created by the nation, with express power in congress, by legislation, to enforce the constitutional provision from which it is derived. If, in some sense, such race discrimination is a denial of the equal protection of the laws, within the letter of the last clause of the first section, it cannot be possible that a mere prohibition upon state denial of such equal protection. to persons within its jurisdiction, or a prohibition upon state laws abridging the privileges and immunities of citizens of the United States, takes from the nation the power which it has uniformly exercised of protecting, by primary direct legislation, those privileges and immunities which existed under the constitution before the adoption of the fourteenth amendment, or which have been created

by that amendment in behalf of those thereby made citizens of their respective states.

It was said of Dred Scott v. Sandford that this court in that case overruled the action of two generations, virtually inserted a new clause in the constitution, changed its character, and made a new departure in the workings of the federal government. I may be permitted to say that if the recent amendments are so construed that congress may not, in its own discretion, and independently of the action or non-action of the states, provide, by legislation of a primary and direct character, for the security of rights created by the national constitution; if it be adjudged that the obligation to protect the fundamental privileges and immunities granted by the fourteenth amendment to citizens residing in the several states, rests, primarily, not on the nation, but on the states; if it be further adjudged that individuals and corporations exercising public functions may, without liability to direct primary legislation on the part of congress, make the race of citizens the ground for denying them that equality of civil rights which the constitution ordains as a principle of republican citizenship,-then, not only the foundations upon which the national supremacy has always securely rested will be materially disturbed, but we shall enter upon an era of constitutional law when the rights of freedom and American citizenship cannot receive from the nation that efficient protection which heretofore was accorded to slavery and the rights of the master.

But if it were conceded that the power of congress could not be brought into activity until the rights specified in the act of 1875 had been abridged or denied by some state law or state action, I maintain that the decision of the court is erroneous. There has been adverse state action within the fourteenth amendment as heretofore interpreted by this court. I allude to Ex parte Virginia, supra. It appears, in that case, that one Cole, judge of a county court, was charged with the duty, by the laws of Virginia, of selecting grand and petit jurors. The law of the state did not authorize or permit him, in making such selections, to discriminate against colored citizens because of their race. But he was indicted in the federal court, under the act of 1875, for making such discriminations. The attorney general of Virginia contended before us that the state had done its duty, and had not authorized or directed that county judge to do what he was charged with having done, and consequently that the state had not denied to the colored race the equal protection of the laws, and the act of Cole must therefore be deemed his individual act, in contravention of the will of the state. Plausible as this argument was, it failed to convince this court, and after saying that the fourteenth amendment had reference to the political body denominated a state, "by whatever instruments or in whatever modes that action may be taken," and that a state acts by its legislative, executive, and judicial authorities, and can act in no other way, we proceeded: