as an attempt by the railroads and other public service corporations to resist the efforts of the people to control them. The hardy and vigorous Western folk stand foremost in the Nation in their attempts to throw off the control of the so-called "interests" and the powers of special privilege.

The invoking of the Amendment as a protection from State activity is more prevalent in those sections of the country where legislation and the enforcement of the laws are more vigorous and aggressive. The Amendment is being used to dispute each new step in the direction of local reforms. In this respect it concerns the South only as it concerns the Nation. It has within recent years served to complicate and intensify the great economic problems of our day, of which the South holds the lesser share. Its future field of operation will be still further enlarged in the West. Laws resulting from the current reforms in the method of government in those States will be brought to the bar of the Supreme Court of the United States by the corporations against which they are largely aimed. Wherever there is new legislation, reaching out into untried paths, its validity will be questioned under the Fourteenth Amendment.

CHAPTER V

LITIGATION INVOLVING THE NEGRO RACE

THE presence of a large number of persons of African descent within our bounds - different in origin, temperament, and physical appearance from the Teutonic stock among whom they dwell - has ever been a serious problem in the life of our republic. The organic law of the land has more than once felt the effect of this situation, a situation abnormal in a high degree. The influence of the negro on our constitutional development, though in a large measure negative, has been none the less potent. Constitutional Law in its very nature lies closest to the life of the people. It does not originate with the political doctrinaire. It has its roots deep in the social organism. It grows and changes as the people grow and change. And so in a society of mixed races, so widely different as Teuton and African, the organic law should be expected to express this peculiar condition of life which the forces of the past have bequeathed to us. But if under these circumstances it takes into account, not a condition of life, but a theory of life, we may expect to find the life of the people failing to conform to the

constitutional ideal so expressed, no matter how noble and exalted such an ideal, in the abstract, may be.

The relation of the negro race to the adoption and the interpretation of the Fourteenth Amendment to the Constitution of the United States is of profound historical and practical interest.

The Civil War had changed the legal status of the negro. The problem of readjustment to this new situation stared the country in the face. It presented a condition without a parallel in history. Under the presidential policy of reconstruction the South was gradually attempting to meet the new conditions. But Congress, under the lead of the radical wing of the Republican Party, looked upon these efforts with extreme disfavor, discredited the President, and took the entire responsibility for reconstruction into their own hands. They were led by the impractical idealist Sumner in the Senate and the partisan politician Stevens in the House. The South was excluded and had no voice in these deliberations. The Democrats of the North, in a hopeless minority, raised the voice of protest and warning, but without avail. It was the day of the Radicals. In the heat of passion and in the fervor of partisan zeal they set to work to accomplish a task which might well have engaged the most sober deliberations of the wisest heads of any people.

In these times the negro question was predominant. It was the vital element in this reconstruction legislation. It was responsible for the anomalous situation.

in which the country found itself at the close of the War. From 1866 to 1876 the negro race question was the keynote of every political campaign. It was uppermost in the minds of the people. The fear that the South would oppress the freedmen was the political lash by which many a voter was beaten back into the party fold.

The Fourteenth Amendment was a part of this reconstruction programme. It embodied the ideal of the Radicals. It was adopted in 1868 by ultra-radical means. It was from first to last a party measure and was fought through as such with definite party aims in view.

Although the Amendment has five sections, we are here concerned with only the first and the last, which read as follows:

"SECTION 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

"SECTION 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." 1

There is here no mention of the negro as such, but it would be easy to establish from contemporaneous

1 Proclaimed to be in effect July 28, 1868.

1

sources that this constitutional provision was primarily intended for the benefit of the negro race. On May 10, 1866, when the measure passed the House by a vote of 128 to 37, the applause in the galleries was loud and prolonged. "Mr. Eldridge of Wisconsin called upon the Speaker to put a stop to such proceedings. Jack Rogers hoped the colored brethren and sisters in the galleries would be allowed to wave their pocket handkerchiefs." This may be regarded as one of the signs of the times. The congressional interpretation of the Amendment may be understood best by an examination of the legislation which was enacted under and by virtue of its adoption. Section five was intended to vitalize section one by giving Congress power to enact direct and positive laws for its enforcement. Pursuant to this ideal, several measures were passed, the most drastic and comprehensive of which was the Civil Rights Act of 1875. The negro question was fundamentally related to this Act. It was an attempt to lift the negro up to a plane of equality with the whites and was the chief offspring of the Fourteenth Amendment.

There were many thoughtful men of that time who shared the popular belief that the Amendment had no wider mission than that of protecting the freedmen from the so-called "Black Codes" of the Southern States. Mr. Justice Miller, in delivering the opinion

1 New York Herald, May 11, 1866. Quoted by Flack, in The Adoption of the Fourteenth Amendment.