to every part of the Union. It is of interest to notice that when in 1883 five cases came up to the Supreme Court of the United States to test the constitutionality of the act, only one was from a Southern State.

We are thus enabled to see what was the Congressional interpretation of the Fourteenth Amendment. The same force in the Republican Party which secured the adoption of the Amendment has also given us its ideal of the purpose and scope of that constitutional measure by the laws thereunder enacted. They meant to change the form of the American Commonwealth. The States were to exist only in name. Their legislatures and their courts were to be reduced to impotency. The citizens of the States were now to live directly under the surveillance of the Federal Government, looking to it for protection in his private affairs and fearing its avenging power should he transgress the least of its commandments.

Into the hands of Congress was placed the sovereign power of the Nation. No longer was the National Government to be one of delegated powers, and no part of the sovereign power was to be held any longer by the States. Section one of the Fourteenth Amendment was intended ultimately to create out of the former Union one centralized consolidated government with the supreme power vested in the Federal authorities in Washington. Such was the ideal of the Radicals.

CHAPTER II

THE DILEMMA OF THE SUPREME COURT

SHORTLY after the adoption of the Fourteenth Amendment the Radicals lost control of the Republican Party and of Congress. Sumner and Stevens were dead. The flames of passion were slowly reducing themselves to ashes. Public opinion had declared against any violent change in the form of the Government, and the country was beginning to breathe the breath of normal health.

The burden of interpreting the Amendment and the laws enacted by Congress for its enforcement naturally befell the duty of the Supreme Court of the United States. Both the conservative and the radical wings of the Republican Party were represented in that tribunal. The first case involving the Amendment came up for final hearing five years after its adoption. The Court was by no means unmindful of its vast importance. It was twice argued before the Court. Mr. Justice Miller in delivering the majority opinion made this significant statement: "We do not conceal from ourselves the great responsibility which this duty devolves upon 1 The Slaughter House Cases, 16 Wall. 36. Decided April 14, 1873.

us. No questions so far-reaching and pervading in their consequences, so profoundly interesting to the people of this country, and so important in their bearings on the relations of the United States, have been before this Court during the official lifetime of any of its present members." By a decision of five to four the Court repudiated the radical ideal of the scope of the "privileges or immunities" clause of the Amendment, taking the practical view that the police power of the States still remained in force.

Two years later another case reached the Court for decision, involving the power of Congress to pass laws by way of enforcing the Amendment.2 It also involved an interpretation of the nature of the Amendment in its relation to wrongs done by individuals to individuals acting in their private and personal capacity. Here again the conservative policy prevailed, the Court holding that the Amendment offered no protection from individual invasion of individual rights and that Congress had no power under the Amendment to make positive and affirmative laws for its enforcement.

These two cases are landmarks in our constitutional history. They marked the practical overthrow of the Congressional ideal for the Fourteenth Amendment within seven years after its victorious adoption. The Supreme Court thus at the outset practically annulled section five of the Amendment and reduced the bill of

1 16 Wall. 67.

2 U. S. v. Cruikshank, 92 U. S. 542.

rights of section one to distant potentialities. It denied to Congress the right to invade the province of the State Legislatures and to create a Federal code for the regulation of private rights. To exercise such authority, said the Court, "would be to make Congress take the place of State legislatures and to supersede them."1

This action of the Court transferred the sphere of activity under the Amendment from Congress to the forum of the Courts. In holding that it was only a potential guarantee against the invasion of certain fundamental rights by the States themselves, the practical sphere of its operation was enormously reduced. It was thus rendered peculiarly non-automatic. As a weapon of defence by a citizen against the activity of his fellow-citizens it was rendered null; as against the activity of his own State it was made ponderous and unwieldy. A person thus aggrieved could not appeal to the officers of the legislative or the executive branches of the Federal Government. He could only resort to the courts where after many months even years - of expensive litigation, his case would reach the Supreme Court of the United States for decision. If in the long process he failed to observe all of the technical rules of legal procedure which inhere in the enforcement of a constitutional right in the Federal courts, his case would be dismissed. At each stage in the progress of his case he must, in the proper place, 1 The Slaughter House Cases, 16 Wall. 36.

at the proper time, and in the proper manner, present his federal question. Few men have been able to employ lawyers of sufficient skill and mental acumen to meet this test.

The Supreme Court, and the public at large, thinking that the Amendment had to do only with the negro race, thought thus to render the Amendment practically inoperative. It was an admission of the failure of the Congressional plan of Reconstruction. The Court did not, however, intend to exalt its own position by thus stripping Congress of the power to enforce the Amendment. That Amendment to the Constitution brought to it unwelcomed burdens and new and grave responsibilities. On the other hand, the Court, especially in the first decades of the operation of the Amendment, consistently discouraged litigation under it. These early ideals of the scope of the Amendment held by the Court may be seen by an examination of a few of the leading cases.

In Barbier v. Connolly,1 Mr. Justice Field, delivering the opinion, spoke as follows: "Neither the Amendment-broad and comprehensive as it is-nor any Amendment, was designed to interfere with the power of the State - sometimes termed its police power-to prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the State, develop its resources, and add to its wealth and pros

1 113 U. S. 31.