Thus it appears that an act merely to enforce the emancipating amendment was considered broad enough to cover the first section of the 14th also. Extreme views were entertainca as to the power of Congress in regard to the matters covered by the amendments. The last two were not proposed by Congress be cause that body doubted its constitutional right to accomplish the same ends by legislation, but simply to remove those matters beyond the reach of a possible hostile majority. The next en forcing act was that of 31 May 1870. This was "to enforce the right of citizens of the United States to vote? but it also re-enacted, with some additional provisions, the Civil Rights Bill of 1866. Means were provided for preventing suffrage discriminations on account of color un der almost any contingency that could rise. The act also provided for enforcing the third section of the 14th Amendment, prohibiting certain classes in the Southern States from holding office. This act was amended 28 Feb. 1871, by one which provided still more elaborate machin ery for enforcing the right to vote. Among other features it required judges of United States Circuit Courts to appoint supervisors of Congressional elections, upon petition of two citizens. This, however, applied only to cities of at least 20,000 inhabitants. The Act of 20 April 1871 was the first specifically directed to the enforcement of the 14th Amendment. This was known as the Ku-Klux Act, and of all the enforcing laws it was the most drastic. The others conferred upon the Federal Courts juris diction for acts in violation of their provisions, and for their enforcement placed at the call of even petty officials the military and naval branches of the government. This authorized the President in certain contingencies to suspend the privileges of the writ of habeas corpus. It was directed primarily against alleged conspiracies in the Southern States to render inoperative the first section of the 14th Amendment. The sec ond and last act to enforce the first section was the Civil Rights Act of 1 March 1875.- The first two sections of the act attempted to do for the newly-declared citizens, in the sphere of what may be called social privileges, what the Civil Rights Bill of 1866 had done in the field of property rights. They declared all persons within the jurisdiction of the United States "entitled to the full and equal enjoyment of the accommodations, advantages, facilities and privileges of inns, public conveyances on land or water, theatres, and other places of public amusement.* Infractions of this act gave rise to the Civil Rights Cases, which furnished the occasion for one of the most important inter pretations of the 14th Amendment ever an nounced by the Supreme Court. The one sec tion of the 14th Amendment which has never been enforced is the second,— which provides for reducing the representation of States as a penalty for abridgments of the suffrage. Some of the men most prominent in Reconstruction legislation have announced the opinion that this section was rendered nugatory by the adoption of the 15th Amendment. This question, how ever, has not been passed upon, in the absence of enforcing legislation. Such legislation was attempted in the first apportionment act after the new amendment, that under the census of 1870. It was at once discovered that the question was one involving numerous practical difficulties,— difficulties probably unforeseen by the framers of the section, certainly entirely unprovided for by them. The advocates of changing the basis of representation in accordance with the new pro vision had finally to content themselves with merely restating in the Apportionment Act the penalty provided in the amendment itself.
Interpretation.— The 14th Amendment has overshadowed the other two, alike in the num ber and the importance of the cases involving its interpretation by the Supreme Court. A con sideration of the three amendments shows this to have been inevitably incident to the nature of the 14th. The 13th and 15th were simple and direct in terms, each covering a single question. Article IV of the Constitution de clared the citizens of each State entitled to all the privileges and immunities of citizens in the several States. Article V of the amendments declared that no person should be deprived of life, liberty or property without due process of law. But Article V was operative upon the general government, not upon the States. The 14th Amendment for the first time defined national citizenship, and endowed it with the privileges and immunities hitherto the attributes of citizens of the States. It then went further,
and prohibited the States from abridging these privileges and immunities in their new and broadened applidation. It borrowed and brought forward from the 5th Amendment the guaranty of due process of law, and decreed that henceforth the denial thereof should also be beyond the province of the State. In their new relation, the questions, what are the privileges and immunities of citizens? What is due process of law? and what the equal pro tection of the laws? are capable of being raised under an almost infinite variety of circum stances. They assume a new significance and issues of consequence and moment are in volved in their determination.
The amendment of which this first section is the most important part was formulated by a Congress which convened almost before the din of war had died away. It was written of it, by the speaker of its house, that "Its key note of policy was protection to the down trodden." Some members of that body may have been gifted with the prescience to see be yond the strife and partisanship of the hour— but these were few. Such as they may have realized the true import of the measure thus wrought out in the heat and bitterness of de bate. One or two did indeed predict its future. But of the many whose voices gave it the sanctity of constitutional law with truth it may be said that only the freedman was in their view. The first case which involved the inter pretation of this amendment by Supreme Court discloses this view of restricted application. This was in the famous Slaughter House Cases, decided 14 April 1873. In behalf of the ma jority of the court, Mr. Justice Miller ex pressed this opinion: "We doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision. It is so clearly a provision for that race and that emergency, that a strong case would be necessary for its application to any other." But the Constitution was "made to march" during the succeeding quarter-century. In 1898, in Holden v. Hardy, we find the court declaring that "A majority of the cases which have since arisen have turned not upon a denial to the colored race of rights therein secured to them, but upon alleged discriminations in mat ters entirely outside of the political relations of the parties aggrieved." Doubtless it would be a pleasing reflection that the later and larger interpretation of this amendment was the one contemplated by its framers. But this would not be warranted by the facts. The decisions nearest the amendment in point of time are nearest also to the intent of most of those who gave it life. The measure would scarcely have appealed to men from the Pacific Coast had they foreseen the construction to be placed upon their work in the cases of Yick Wo v. Hopkins and the United States v. Wong Kim Ark. In the case of Yick Wo, Chinese. as "persons," were held to be entitled to "due process of law." In Wong Kim Ark it was held that children born in the United States of Chinese parents having their domicile here arc citizens of the United States. The effect of the former of these decisions was to give to the word "person" the broadest possible sig nificance, as meaning every natural person within the jurisdiction of a State. But there was another class of persons to claim the pro tection of the amendment. Corporations came forward with the sound argument that they were mere associations of persons, each of whom was guaranteed due process of law and the equal protection of the laws, and that in their corporate capacity, as artificial persons. they were entitled to the same protection. Not until the lapse of 18 years after the adoption of the amendment were these artificial persons clearly held to be within the purview of its first section. This was in 1886, in Santa Clara County v. Southern Pacific Railroad. Since that time, of the cases involving the construc tion of this amendment, those in which cor porations are interested probably outnumber all others combined. The courts have quite clearly distinguished, however, one important difference between these artificial persons and citizens. Privileges and immunities are held to belong only to the latter. Corporations must rely for their protection under the 14th Amend ment upon their character as persons.