Amendment, and by the other clause of the Fourteenth, next to be considered.""

§ 87. Effect of Fourteenth Amendment upon Rights Enumerated in First Eight Amendments.

In Ex parte Spies the point was urged upon the court that the privileges and immunities secured against federal infringement by the first eight Amendments to the federal Constitution, were, because so secured, federal privileges and immunities, which, according to the Fourteenth Amendment, and the doctrine of the Slaughter House Cases the States might not abridge or deny. The counsel for Spies in his argument said: "The position I take is this. Though originally the first ten Amendments were adopted as limitations on federal power, yet in so far as they secure and recognize fundamental rights common law rights — of the man, they make them privileges and immunities of the man as a citizen of the United States, and cannot now be abridged by a State under the Fourteenth Amendment. In other words while the ten Amendments, as limitations on power, only apply to the

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6 Cooley, in his Principles of Constitutional Law, p. 245, gives the following enumeration of distinctively federal rights: "A citizen of the United States," he says, as such has the right to participate in foreign and interstate commerce, to have the benefit of the postal laws, to make use in common with others of the navigable waters of the United States, and to pass from State to State into foreign countries, because over all these subjects the jurisdiction of the United States extends, and they are coerced by its law. . . . So every citizen may petition the federal authorities which are set over him in respect to any matter of public concern; may examine the public records of the federal jurisdiction; may visit the seat of government without being subjected to the payment of a tax for the privilege; may be purchaser of the public lands on the same terms with others; may participate in the government if he comes within the conditions of suffrage, and may demand the care and protection of the United States when on the high seas, or within the jurisdiction of a foreign government. The privileges suggest the immunities. Wherever it is the duty of the United States to give protection to a citizen against any harm, inconvenience, or deprivation, the citizen is entitled to an immunity which pertains to federal citizenship." "One very plain and unquestionable immunity," Cooley adds, "is exemption from any tax burden, or imposition under state laws, as a condition to the enjoyment of any right or privilege under the laws of the United States."

7123 U. S. 131; 8 Sup. Ct. Rep. 22; 31 L. ed. 80.

Federal Government, and not to the States, yet in so far as they declare or recognize rights of persons, these rights are theirs as citizens of the United States, and the Fourteenth Amendment as to such rights limits state power as the ten Amendments had limited federal power."

The court, however, found that, in fact, no right of Spies secured by the first eight Amendments had been violated, and that, therefore, it was not necessary to pass upon this constitutional point which his counsel had raised.

In Maxwell v. Dow, however, the court found itself compelled to pass specifically upon this point. The court in its majority opinion denied the claim set up, asserting that the mere fact that a certain privilege or immunity was guaranteed against federal infringement did not operate to make such a privilege or immunity distinctively federal in character. With reference to the rights enumerated in the first eight Amendments, the court said: "In none are the privileges or immunities granted and belonging to the individual as a citizen of the United States, but they are secured to all persons as against the Federal Government, entirely irrespective of such citizenship. As the individual does not enjoy them as a privilege of citizenship of the United States, therefore, when the Fourteenth Amendment prohibits the abridgement by the States of those privileges or immunities which he enjoys as such citizen, it is not correct or reasonable to say that it covers and extends to certain rights which he does not enjoy by reason of his citizenship, but simply because those rights exist in favor of all individuals as against the federal governmental powers. The nature of the character of the right of trial by jury is the same in a criminal prosecution as in a civil action, and in neither case does it spring from nor is it founded upon the citizenship of the individual as a citizen of the United States, and if not, then it cannot be said that in either case it is a privilege or immunity which alone belongs to him as such citizen." 9

8 176 U. S. 581; 20 Sup. Ct. Rep. 448; 44 L. ed. 597.

9 Justice Harlan rendered a dissenting opinion in the course of which he said: "It seems to me that the privileges and immunities enumerated in

§ 88. Suffrage not a Necessary Incident of Citizenship.

In Minor v. Happersett1 it was held that the suffrage is not a right springing from federal citizenship. This doctrine was declared in passing upon the claim made in that case by a woman that because of her federal citizenship she could not constitutionally be disqualified from voting on account of her sex. In passing upon this claim the court admitted that citizenship was not dependent upon sex, but denied that the right of suffrage was necessarily attached to the status of citizenship."

these Amendments belong to every citizen of the United States. They were universally so regarded prior to the adoption of the Fourteenth Amendment. In order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to themselves and their posterity, the political community known as the people of the United States ordained and established the Constitution of the United States; and every member of that political community was a citizen of the United States. It was that community that adopted in the mode prescribed by the Constitution, the first ten Amendments; and what they had in view by so doing was to make it certain that the privileges and immunities therein specified — the enjoyment of which, the fathers believed, were necessary in order to secure the blessings of liberty – could never be impaired or destroyed by the National Government. . . . It does rot solve the question before us to say that the first ten Amendments had reference only to the powers of the National Government, and not to the powers of the States. For, if, prior to the adoption of the Fourteenth Amendment, it was one of the privileges or immunities of citizens of the United States that they should not be tried for crime in any court organized or existing under national authority except by a jury composed of twelve persons, how can it be that a citizen of the United States may now be tried in a state court for crime, particularly for an infamous crime, by eight jurors, when that Amendment expressly declares that no State shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States?'"

10 21 Wall. 162; 22 L. ed. 627.

11 The court say: "Sex has never been made one of the elements of citizenship in the United States. In this respect men have never had an advantage over women. The same laws precisely apply to both. The Fourteenth Amendment did not affect the citizenship of women any more than it did of men. In this particular, therefore, the rights of Mrs. Minor do not depend upon the Amendment. She has always been a citizen from her birth, and entitled to all the privileges and immunities of citizenship. The Amendment prohibited the State, of which she is a citizen, from abridging any of her privileges and immunities as a citizen of the United States; but it did not confer citizenship

§ 89. Legislative Power Granted Congress by the Fourteenth Amendment.

From the foregoing cases it appears that the clause of the Fourteenth Amendment which declares that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," has not given to the General Government any legislative or even supervisory power which it did not possess before the Fourteenth Amendment was adopted.

In another important case it has been held that the last clause of the Amendment which empowers Congress to enforce its provisions by appropriate legislation, does not give to that body a direct legislative power to define and establish the rights of life, liberty, and property of which the individual may not be deprived by the States without due process of law, or to define and estab lish what shall constitute the equal protection of the laws which the States may not deny to persons within their jurisdiction.

In 1875, in pursuance of an authority which it conceived to be granted by the Fourteenth Amendment, Congress passed a socalled 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 treatment at public inns, hotels,

on her. That she had before its adoption. . . . The Amendment did not add to the privileges and immunities of a citizen. It simply furnished an additional guaranty for the protection of such as he already had. No new voters were necessarily made by it. Indirectly it may have had that effect, because it may have increased the number of citizens entitled to suffrage under the Constitution and laws of the States, but it operates for this purpose, if at all, through the States and the state laws, and not directly upon the citizen. It is clear, therefore, we think, that the Constitution has not added the right of suffrage to the privileges and immunities of citizenship as they existed at the time it was adopted." Continuing the court showed that in no case had the suffrage in the States been considered as co-extensive with citizenship, and concluded: Certainly, if the courts can consider any question as settled, this is one. For nearly ninety years the people have acted upon the idea that the Constitution, when it conferred citizenship did not necessarily confer the right of suffrage."

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The

railways, theaters, etc., as that enjoyed by white persons. 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 as empowering 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 Civil Rights Cases,12 decided in 1883, the court laid down, authoritatively and finally, the doctrine that it is not within the legislative power of Congress to define what are the civil rights of individuals, and to affix and enforce penalties for their denial by private persons. Hence the court held unconstitutional and void those portions of the Civil Rights Act of 1875 which attempted to do this. "Individual invasion of individual rights," the court say, "is not the subject-matter of the Amendment. It has a deeper and broader scope. It nullifies and makes void all state legislation and state action of every kind, which impairs the privileges and immunities of citizens of the United States, or injures them in life, liberty, or property without due process of law, or which denies to them the equal protection of the laws. It not only does this, but in order that the national will, thus declared, may not be a mere brutum fulmen, the last section of the Amendment invests Congress with power to enforce it by appropriate legislation. To enforce what? To enforce the prohibition. It does not authorize Congress to create a code of municipal law for the regulation of private rights; but to provide modes of redress against the operation of state laws, and the action of state officers, executive or judicial, when these are subversive of the fundamental rights specified in the Amendment." The im12 109 U. S. 3; 3 Sup. Ct. Rep. 18; 27 L. ed. 835.