Blue laws

“ Each on its face is an Act of Congress prohibiting denial of certain rights on account of color. In this respect each is at least a Congressional interpretation of the Constitution, and it is by no means clear that it could not be enforced in the courts. The bill which has already passed the House of Representatives, striking out the word “white” in the electoral laws of the District of Columbia, is without machinery or penalty ”

“ It ordains that no State shall deprive any person of life, liberty, or property without due process of law, or deny to any person within its jurisdiction the equal protection of the laws. What is this but declaring that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them bar law because of their color? ”

“ It secures, not to all citizens, but to all races as races who are citizens, equality of protection in those enumerated civil rights which the States may deem proper to confer upon any races. Now, sir, can this Government do this? Can it prevent one race of free citizens from being by State laws deprived as a race of all the civil rights for the securement of which his Government was created, and which are the only considerations the Government renders to him for the Federal allegiance which he renders? ”

“ In fact, the statement, made in the course of a debate on a bill (S. 60) to enlarge the powers of the Freedmen's Bureau, related solely to Black Laws that had been enacted in some of the Southern States. Trumbull attacked the 'slave codes' which 'prevented the colored man going from home,' and he urged that Congress nullify all laws which would not permit the colored man 'to go where he pleases.' Cong. ”

“ Among the first acts of legislation adopted by several of the states in the legislative bodies which claimed to be in their normal relations with the Federal Government, were laws which imposed upon the colored race onerous disabilities and burdens, and curtailed their rights in the pursuit of life, liberty, and property to such an extent that their freedom was of little value, while they had lost their protection which they had received from their former owners from motives both of interest and humanity. ”

“ These the Supreme Court has so far declared insufficient. It is for Congress to make more laws. It is for colored men and for white men who are not content to see the blood-bought results of the Civil War nullified, to urge and direct public opinion to the point where it will demand stringent legislation to enforce the Fourteenth and Fifteenth Amendments. ”

“ But, sir, it is apparent now that the bill is not to pass at present; that it must go over for the holidays at any rate. The constitutional amendment has been adopted, and I have introduced a bill this morning based upon that amendment, which has been referred to the committee of which the Senator from Illinois [Mr. Trumbull] is chairman. This bill will go over; possibly it will not be acted upon at all. We shall probably enter on the discussion of the broader question of annulling all the black laws in the country, and putting these people under the protection of humane, equal, and just laws. ”

“ Congress, therefore, under its present express power to enforce that amendment by appropriate legislation, might enact laws to protect that people against deprivation, because of their race, of any [Pg 8] civil rights granted to other freemen in the same States; and such legislation may be of a direct and primary character, operating upon States, their officers and agents, and also upon, at least, such individuals and corporations as exercise public functions and wield power and authority under the State. ”

“ They readily enough admit that the Government has made him free, but appear to believe that they still have the right to exercise over him the old control. It is partly their misfortune, and not wholly their fault, that they cannot understand the national intent, as expressed in the Emancipation Proclamation and the Constitutional Amendment. I did not anywhere find a man who could see that laws should be applicable to all persons alike; and hence even the best men hold that each State must have a negro code. ”

“ In fact, the distinction of race and color is, by the bill, made to operate in favor of the colored and against the white race. They interfere with the municipal legislation of the States, with the relations existing exclusively between a State and its citizens, or between inhabitants of the same State—an absorption and assumption of power by the General Government which, if acquiesced in, must sap and destroy our federative system of limited powers, and break down the barriers which preserve the rights of the States. ”

“ And if this provision does protect the colored citizen, then it protects every citizen, black or white, male or female. Why may a colored citizen buy, hold, and sell land in any State of the Union? Because he is a citizen of the United States, and that is one of the privileges of a citizen. Why may a colored citizen be admitted to the bar? Because he is a citizen, and that is one of the avocations open to every citizen; and no State can abridge his right to pursue it. ”

“ In all our history, in all our experience as a people living under Federal and State law, no such system as that contemplated by the details of this bill has ever before been proposed or adopted. They establish, for the security of the colored race, safeguards which go infinitely beyond any that the General Government has ever provided for the white race. ”

“ Now, what greater absurdity could be imagined than for a black man to present himself at the polls. You all must know that the Legislation of the State, in regard to the "free people of color," is becoming more and more stringent, that every session of the Legislature adds one or more chapters to the statute book, curtailing, in some degree, your shadowy rights and privileges. ”

“ And now, if there be any such within the sound of my voice, I ask the question directly,—Can “color,” whether of hair, eyes, or skin, be a “qualification” under our National Constitution? under the pretence of making “regulations” of elections, can a race be disfranchised? With all the power derived from both these words, can any State undertake to establish a Caste and organize an Oligarchy of the Skin? To put these questions is to answer them.
Such is the case as presented by the champions. But looking at the National Constitution, we shall be astonished still more at this pretension. ”

“ That the existence of authority under Article V to enact ordinary laws regulating the conduct of private citizens under color of amendment, would be so in conflict with the fundamental principles and spirit of the Constitution that such a construction is not permissible. ”

“ Yet we cannot — and, as we shall demonstrate, need not under our Constitution or Title VI, which merely extends the constraints of the Fourteenth Amendment to private parties who receive federal funds — let color blindness become myopia which masks the reality that many "created equal" have been treated within our lifetimes as inferior both by the law and by their fellow citizens. ”

“ The manifest dangers to the future of the country which lurk in the inflexibility of the federal constitution can only be averted by carefully distinguishing between such laws as practically concern the inhabitants of a particular state only, and are intended bona fide for their welfare, and such as are a mere subterfuge for an unlawful discrimination, and cannot be carried into effect without doing palpable injustice to citizens of other states. ”

“ So long as the Constitution retains its present form, any State Constitution, or statute, which seeks, by juggling the ballot, to deny the colored race fair representation, is a clear violation of the fundamental law of the land, and a corresponding injustice to those thus deprived of this right. ”

“ The only thing that remains is that the States cannot make laws which, on their face, are discriminations against the negro, or in social matters against any other race; and in political matters, the Fifteenth Amendment has proved effective to render null State laws which on their face are designed to restrict or deny their equal right of suffrage. ”

“ The authority to maintain them comes from the public. The colored race being a part of the public, representing the power granting the license, why should the colored people license a manager to open his doors to the white man and shut them in the face of the black man? Why should they be compelled to license that which they are not permitted to enjoy? Justice Harlan shows that Congress has the power to prevent discrimination on account of race or color on railways, at inns, and in places of public amusements, and has this power under the Thirteenth Amendment. ”

“ Further, if the lower court be right, then a state may make it a crime for white and colored persons to frequent the same market places at the same time, or appear in an assemblage of citizens convened to consider questions of a public or political nature, in which all citizens, without regard to race, are equally interested. Many other illustrations might be given to show the mischievous, not to say cruel, character of the statute in question, and how inconsistent such legislation is with the great principle of the equality of citizens before the law. ”

“ Who is to be oppressed? What white man fleeing, in the language of my colleague, pursued by these harpies of the law, is in danger of having his rights stricken down? What does the bill provide? It places all men upon an equality, and unless the white man violates the law, he is in no danger. ”

“ His Civil Rights Bill he pressed with unflagging perseverance, against an opposition which stood upon the ground that the objects his measure contemplated, belonged, under the Constitution, to the jurisdiction of the States; that the colored people, armed with the ballot, possessed the necessary means to provide for their own security, and that the progressive development of public sentiment would afford to them greater protection than could be given by national legislation of questionable constitutionality. ”

“ Laws and ordinances existed in the national capital that pressed with merciless rigor upon the colored people: the 37th Congress enacted that colored persons should be tried for the same offences, in the same manner, and be subject to the same punishments, as white persons ”

“ He showed how the proposed laws would act, and the legislature not only accepted the veto, but repealed all such laws then in the code and on the statute books. [1002] At the close of the session there were two laws on the statute books which made a distinction before the law between negroes and whites. The first made it a misdemeanor, with a [Pg 380] penalty of $100 fine and ten days’ imprisonment, to purchase or receive from a “free person of color” any stolen goods, knowing the same to have been stolen. ”

“ No State north, south, east or west can now legally and constitutionally make or enforce any law making race or color the basis of discrimination in the exercise and enjoyment of civil and public rights and privileges, nor can it make race or color the basis of discrimination in prescribing the qualification of electors. By the ratification of those amendments the right of an American citizen to the exercise and enjoyment of civil and political rights and the right to vote ceased to be local and became national. ”

“ Its purport is to disfranchise all the people of color who were citizens of the free states. The Legislatures of those states are bound in duty to protect the rights of their own citizens; and if Congress, by the admission of Missouri with that clause in her constitution, should sanction this outrage upon those rights, the states a portion of whose citizens should be thus cast out of the pale of the Union would be bound to vindicate them by retaliation. ”

“ If, then, all the people in each State, were, by virtue of the 13th Amendment, free, what right had a majority to enslave a minority? What right had a majority to make any distinctions between free men? What right had a majority to take from a minority any privilege, or any immunity, to which they were entitled as free men? What right had the majority to make that unequal which the Constitution made equal? ”

“ When a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men's rights are protected. ”

“ Within the last hundred years, in no country where the common law obtains, I venture to say, has any implication of a grant of power ever been held to be raised by such a law, and especially an implied power, to do an act expressly prohibited by the same law. The guarantee of your Constitution, that the people shall elect their Representatives in the several States, can not be set aside or impaired by inserting in your Constitution, as a penalty for disregarding it, the provision that the majority of a State that denies the equal rights of the minority shall suffer a loss of political power. ”