The greatest difficulty experienced in tracing the true effects or results of this amendment lies in the fact that as this amendment acts upon and in connection with various other portions of the Constitution, and as in nearly every case coming before the courts involving this amendment some other portion of the Constitution is also considered, it is difficult to determine the exact effect given to this particular amendment. $270. The Slaughter House Cases.-The Slaughter House Cases1 contain the first important discussion of the meaning and application of the fourteenth amendment to be found in the opinions of the Supreme Court of the United States. These cases involved the constitutionality of an act of the legislature of Louisiana entitled, "An Act to protect the health of the city of New Orleans, to locate the stock-landings and slaughter-houses, and to incorporate the Crescent City Live-Stock Landing and Slaughter-House Company," which prohibited the landing or slaughtering of animals whose flesh was intended for food, within the city of New Orleans and other parishes and boundaries named and defined, or the keeping or establishing any slaughter-houses or abattoirs within those limits, except by the corporation thereby created, and which made it the duty of said. company to permit any person to slaughter animals in their slaughter-houses under a heavy penalty for each refusal. The statute was alleged to be a violation of the Constitution of the United States (i. e., of the thirteenth and fourteenth amendments) in the four following particulars: (1) That it created an involuntary servitude forbidden by the thirteenth amendment; (2) That it abridged the privileges and immunities of citizens of the United States; (3) That it denied to the plaintiffs in the case the equal protection of the laws; and (4) That it deprived them of their property without due process of law. This being the first important case involving the construction of the last three amendments to the Constitution which had 21 16 Wallace, 36, come before the Supreme Court, the court thought it proper to review the history and purpose of these amendments and to lay down the general principle that in the construction of these amendments their purpose must be constantly borne in mind; and that the general purpose of these amendments was the freeing and protection of the former African slaves and not a complete readjustment of the relations between the United States and the States. While it was acknowledged that in proper circumstances these amendments might affect others than those for whose protection they were primarily intended, still such result was incidental to the main purpose of the amendments. The court then proceeded in detail to take up the four objections to the constitutionality of the Louisiana statute. The suggestion that the thirteenth amendment could be interpreted as a protection of property rights was ridiculed in the following language: "To withdraw the mind from the contemplation of this grand yet simple declaration of the personal freedom of all the human race within the jurisdiction of this government-a declaration designed to establish the freedom of four million of slaves-and with a microscopic search endeavor to find in it a reference to servitudes, which may have been attached to property in certain localities, requires an effort, to say the least of it. "That a personal servitude was meant is proved by the use of the word 'involuntary,' which can only apply to human beings. The exception of servitude as a punishment for crime gives an idea of the class of servitude that it meant. The word 'servitude is of larger meaning than slavery, as the latter is popularly understood in this country, and the obvious purpose was to forbid all shades and conditions of African slavery. It was very well understood that in the form of apprenticeship for long terms, as it had been practiced in the West India. Islands, on the abolition of slavery by the English government, or by reducing the slaves to the condition of serfs attached to the plantation, the purpose of the article might have been evaded if only the word 'slavery' had been used. The case of the apprentice slave, held under a law of Maryland, liberated by Chief Justice Chase on a writ of habeas corpus under this article, illustrates this course of observation.22 And it is all that we deem necessary to say on the application of that article to the statute of Louisiana, now under consideration." Taking up the second objection, that the statute abridged the privileges and immunities of citizens of the United States, the court drew a sharp distinction between the privileges which a person possessed as a citizen of the United States and those application of the fourteenth amendment to be found in the opinwhich belonged to him as a citizen of some particular State, and decided that the fourteenth amendment only protected those rights attaching to citizenship in the United States and that none of such rights were infringed by the legislation in question.23 The last two objections were disposed of by the court as follows: "The argument has not been much pressed in these cases that the defendant's charter deprives the plaintiffs of their property without due process of law, or that it denies to them the equal protection of the law. The first of these paragraphs has been in the Constitution since the adoption of the fifth amendment, as a restraint upon the Federal power. It is also to be found in some form of expression in the constitutions of nearly all the States as a restraint upon the power of the States. This law, then, has practically been the same as it now is during the existence of the Government, except so far as the present amendment may place the restraining power over the States in this matter in the hands of the Federal Government. "We are not without judicial interpretation, therefore, both State and National, of the meaning of this clause. And it is sufficient to say that under no construction of that provision that we have ever seen, or any that we deem admissible, can the restraint imposed by the State of Louisiana upon the exercise of their trade by the butchers of New Orleans be held to be a deprivation of property within the meaning of that provision. "Nor shall any State deny to any person within its jurisdietion the equal protection of the laws.' "In the light of the history of these amendments, and the Matter of Turner, 1 Abbott, 84. See section 276 on Citizenship. pervading purpose of them, which we have already discussed. it is not difficult to give a meaning to this clause. The existence of laws in the State where the newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied by this clause, and by it such laws are forbidden. "If, however, the States did not conform their laws to its requirements, then by the fifth section of the fourteenth amendment Congress was authorized to enforce it by suitable legislation. We doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision. It is so clearly a provision for that race and that emergency that a strong case would be necessary for its application to any other. But as it is a State that is to be dealt with, and not alone the validity of its laws, we may safely leave that matter until Congress shall have exercised its power, or some case of State oppression, by denial of equal justice in its courts shall have claimed a decision at our hands. We find no such case in the one before us, and do not deem it necessary to go over the argument again, as it may have relation to this particular clause of the amendment." $271. The fourteenth fourteenth amendment amendment continued. This amendment gives citizenship to the negro and prohibits the State from denying to him the privileges thereof. It is a guaranty of protection against oppressive acts of State governments, but not against its commission of offenses against the negro by individuals.25 It does not interfere with the police power of the State. It does not limit the subjects over which the police power of the State may be exercised for the protection of its citizens. The privilege of voting is not protected by this amendment.28 The prohibition of the sale of intoxicating 26 24 Strauder V. W. Virginia, 100 U. S. 303. United States v. Harris, 106 v. Pennsylvania, 127 U. S. 678. Barbier v. Connolly, 113 U. S. 27. Missouri Pacific Ry. v. Himes, 115 U. S. 512. Miner v. Happersett, 21 Wal lace, 162. liquors by a State is not contrary to this amendment,29 nor is a law prohibiting the intermarriage of blacks and whites.30 § 272. Due process of law. The term "due process of law," already used in the fifth amendment, appeared once more in the fourteenth. The requirement for "due process of law" is a limitation of the power of the United States in the earlier amendment, and of the power of the States in the latter. "The fourteenth amendment legitimately operated to extend to the citizens and residents of the States the same protection against arbitrary State legislation affecting life, liberty and property as is offered by the fifth amendment against similar legislation by Congress. This term is generally held to have the same meaning in the fourteenth amendment that it has in the fifth. This rule, however, cannot be taken as an invariable one. In French v. Barber Asphalt Paving Company-32 the Supreme Court said: "While the language of those amendments is the same, yet as they were engrafted upon the Constitution, at different times and in widely different circumstances of our national life, it may be that questions may arise in which different constructions and application of their provisions may be proper." The reasoning in this opinion is not very convincing, but the rule as to uniformity of meaning has been sometimes evaded for the (real) reason of practical expediency. If the term is to be given the same meaning in each amendment, it necessarily follows, under the established rules of construction, that all the other rights guaranteed by the first eight amendments are not included under the provision for "due process of law" in the fifth amendment, and therefore cannot be held to be protected by the fourteenth amendment. This view has been taken by the Federal Courts in a number of cases, the most important of which was that of Hurtado v. California.33 Mugler v. Kansas, 123 U. S. 623; Eilenbecker v. District Court of Plymouth County, 134 U. S. 31; Kidd v. Pearson, 128 U. S. 1; Beer v. Massachusetts, 97 U. S. 25; Bartemeyer v. Iowa, 18 Wallace, 129; with qualifying dieta in last case. Ex parte Hobbs and Jackson, 1 Woods, 537. Hibben v. Smith, 191 U. S. 310, 325. 32 181 U. S. 324. |