The Civil Rights Cases Essay Research Paper — страница 2

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regulate commerce, he said, and in that can regulate states and individual actions. Congress, however, cannot create legislation when the subject is not included in the general power of Congress. Congress then can only regulate the States in a corrective measure, ?to counteract and redress the operation of such prohibited State laws or proceedings of State officers.? Using the same argument for legislating civil and social rights under 13th Amendment Congress has the expressed power to legislate over all incidents of slavery and involuntary servitude whether by individuals or the State. In the 14th Amendment no such power exists and legislation, as already argued, can only be corrective in nature. Justice Brennan pointed out that the Court had previously always given a broad and

liberal construction to the Constitution to allow Congress, by legislation, to enforce the very rights granted by the same document. This implied power, historically recognized by the Court, allows Congress to enforce the provisions of the amendment so it can protect the rights granted. It is for Congress, he stressed, not the judiciary to say which legislation is needed and the Court cannot ?enter the domain of legislative discretion to dictate the means which Congress shall employ the exercise of its granted powers.? The Court had previously allowed that same discretion to protect the rights of the white slave owners which the upholding of the Fugitive Slave Law of 1850. The constitutionality of the act depended on the implied power of Congress to enforce the master’s rights.

The Court, in Ableman v. Booth pronounced that power to be fully within the bounds and construction of the Constitution of the United States. Even though his authority was questioned in Priggs v. Commonwealth of Pennsylvania by the attorney general, who noted that for the government to assume authority to legislate on the subject of fugitive slaves was a ?dangerous encroachment on State sovereignty,? it was disregarded by the Court. The Civil Right Act of 1875 was passed into law, according to Brennan, only to achieve what had already been protected for white citizens in every other state in the union. Another Constitutional argument, which was also discussed extensively in the South Carolina nullification, is the issue of state sovereignty versus federal supremacy. Justice

Bradley noted that the law makes no mention whatsoever of any prevention against violation by the States of the 14th Amendment to the Constitution, and within the language of the Amendment that is the only allowable form of legislation. Therefore, the entire law should be deemed unconstitutional. He claims that the assumption for the law to be constitutional is if the States are forbidden to legislate on a particular subject, and power is then given to Congress to enforce the prohibition, that gives Congress power to legislate generally on the subject and not merely power to provide modes of atonement against such a State action. This assumption, according to Bradley, is incorrect and is in violation of the 10th Amendment that declares powers not delegated to the federal

government, nor prohibited from the States, are reserved to the States or to the people. The law instead applied equally to all states, regardless of their current enforcement and safeguards against individual violations, and steps into the domain of local jurisprudence. It supercedes the states constitutionally given right to govern its private entities and police their actions. This power is not given to Congress within the boundaries of the 14th Amendment, but is given, as previously mentioned, in the confines of the 13th Amendment. In that case, the federal government has to power to legislate regardless of the current legislation of the states as to the issue of slavery and involuntary servitude. Since these cases, however, cannot be construed in any matter to be held as

issues of slavery the 13th Amendment thus does not apply. Justice Harlan, however, notes that the States right to legislate domestic affairs is not infringed upon with the enforcement of this law. It simply recognizes the enlarged powers conferred on the federal government by the two amendments. The States still retain their right to regulate the civil and social rights of its citizens; however, it is not subject to the expressly granted power of Congress to enforce to provisions of the 14th Amendment by legislation if deemed necessary. For Congress to be held from protecting the very rights that are the principle of Republican citizenship the foundations upon national supremacy rests will be greatly disturbed. It will allow, he added, for the very rights and freedoms of American