ment has the power to come in and do in a better way that which was proposed by the State. Herein the operation of the Fourteenth Amendment differs from that of the Interstate Commerce Clause of the Constitution. Under the latter the Federal Government can through Congress initiate affirmative legislation to remedy those evils which the State had proposed to remedy, but was restrained by the Federal courts. Under the Fourteenth Amendment the Federal Government can only restrain. It can propose no remedy of its own. It can suggest no remedy to the States.

Thus there has grown up what is now being called the Twilight Zone. It is a region between the States and the Federal Governments where commercial activity may go on without any governmental control. Those who operate there are outside of the pale of the law. The State is restrained by Federal authority from acting; the Federal Government is powerless to act. This Twilight Zone is greatly enlarged at present by the unsettled relations between the Federal Government and the States under the Interstate Commerce Clause of the Constitution. There is a possible remedy here, but as long as the Fourteenth Amendment remains a part of the Supreme Law of the Land, the Twilight Zone will ever be a shadow across the pathway of the American Republic.

The operation of the Fourteenth Amendment is an economic waste. It does not produce results commensurate with the efforts put forth. The actual

money cost to the American people, to maintain the expense of litigation under the Amendment year by year, runs up into large sums. One of the chief effects of the operation of the Amendment is to afford a means of delay to those who can afford to spend years in litigation. The great corporations are here the chief beneficiaries. It is nearly always in order to raise the question of the violation of the Fourteenth Amendment in the lower courts. This always means a delay of perhaps two or three years, and delay even in the face of an adverse decision to the supposed aggrieved party

is always an advantage, often a victory. It is one' of the least criticisms to say that it is a waste of time and money for the government to attempt to maintain such a constitutional measure.

The primary purpose of the adoption of the Fourteenth Amendment was to elevate the negro to a plane of equality with the white people and to protect him in his newly given rights. In its attempts to carry out this ideal, Congress was effectually restrained by the Supreme Court. Consequently, as related to the negro race, the Amendment is negative and non-automatic. It has failed of its purpose because there is no !! Federal power to enforce it, and because the negroes have not been qualified to gain for themselves the ideals which it seeks to enforce. When they do become so qualified, they will have no need of the Fourteenth Amendment. Of the few cases reaching the Supreme Court of the United States within the past forty years

involving the negro race question under the Amendment, in no single instance of importance has a State been restrained from enforcing its laws.

In closing these criticisms on the Fourteenth Amendment to the Constitution of the United States, it seems fitting to quote the words of Pelatiah Webster, which, although spoken in 1783, state a living and fundamental principle of jurisprudence: "Laws or ordinances of any kind (especially of august bodies of high dignity and consequence), which fail of execution, are much worse than none. They weaken the government, expose it to contempt, destroy the confidence of all men, native and foreigners, in it, and expose both aggregate bodies and individuals who have placed confidence in it to many ruinous disappointments which they would have escaped had no such law or ordinance been made.1

Quoted from Hannis Taylor, Esq., The Genesis of the Supreme Court, in Case and Comment for June, 1911.

CHAPTER XI

PROPOSED REMEDIES

THE foregoing studies into the history and the practical operation of the Fourteenth Amendment reveal to us a situation highly unsatisfactory and of positive harmful tendencies. It is evident that some remedial steps should be taken. It would be most natural to suggest the repeal of the Amendment, but on account of the inherent difficulty of amending the Federal Constitution and by reason of the peculiar sentiment which still lingers around the War amendments, its repeal at this time can hardly be considered practicable.

In order to attain the desired result it is not, however, absolutely necessary that the Amendment be repealed. In all cases arising under the Fourteenth Amendment the Supreme Court of the United States exercises only appellate jurisdiction. Under Article III, Section 2, of the Constitution it is the duty of Congress to provide for and regulate this appellate jurisdiction with such exceptions as seem fit and proper. The Supreme Court can exercise no appellate jurisdiction except in those cases thereby provided. This principle was recently restated by Mr. Justice Moody in St. Louis & Iron Mt. Ry. v. Taylor,1 in which he said, "Congress

1 210 U. S. 292.

has regulated and limited the appellate jurisdiction of this Court over the State courts by Section 709 of the Revised Statutes, and our jurisdiction in this respect extends only to the cases there enumerated, even though a wider jurisdiction might be permitted by the constitutional grant of power." The constitutional grant here referred to was the Fourteenth Amendment. Section 709 of the Revised Statutes was enacted by Congress about fifty years ago and was recently reenacted to form Section 237 of the Judicial Code, which went into effect January 1, 1912. It reads as follows:

"A final judgment or decree in any suit in the highest court of a State in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or any authority exercised under, the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of their validity; or where any title, right, privilege, or immunity is claimed under the Constitution, or any treaty, or statute of, or commission held, or authority exercised under, the United States, and the decision is against the title, right, privilege, or immunity especially set up or claimed, by either party under such Constitution, treaty, statute, commission, or authority, may be reëxamined and reversed or affirmed in the Supreme Court upon a writ of error. The writ shall have the same effect as if the judgment or decree complained of had been rendered or passed in a court of the United States. The Supreme Court may reverse, modify, or affirm the judgment or decree of