latures to impose new bonds upon the Freedmen cast doubts upon their good faith in accepting the emancipation. In 1866, therefore, the Congress of the United States, distrusting the purposes of the existing local governments in the South, sought to make the freedom of the Freedmen more secure by putting their new-found liberty under the special protection of Federal laws. Federal The first Civil Rights Act was designed to give the First negroes the same civil rights as were enjoyed by free civil rights white people. It was justified as a measure for the act enforcement of the Thirteenth Amendment. It provided that there should be no discrimination with respect to civil rights among the inhabitants of any State on account of race, color, or previous condition of servitude, and that all should have the same right to go and come at pleasure, to engage in any lawful calling, to acquire and dispose of property, to make contracts, including marriage contracts with members of other races, and to sue in the courts, and in general should enjoy on equal terms the rights of free citizens. Such an act could be justified only on the theory that the liberty, which it was the object of the Thirteenth Amendment to secure, was more than the mere liberty of the person. The Radical Republicans, who supported the measure in Congress, must have understood the liberty of the Thirteenth Amendment to comprehend nothing less than the whole of the public liberty of Americans under the Federal and State Constitutions. Some of them indeed went further and identified it with the political liberty of the Preamble rather than with the public liberty of the body of the Constitution.1 Be that as it may, the President 1 Senator Trumbull, for example, the author of the Act, speaking on the question in the Senate, (The Congressional Globe, 39th Congress, 1st Session, p. 474), January 29, 1866, said: "Has Congress authority to pass such a bill? Has Congress authority to give practical effect to the great declaration that slavery shall not exist in the United States? If it has not, then nothing has been accomplished by the adoption of the constitutional amendment. . . . It is difficult, perhaps, to define accurately what The of the United States took a different view and vetoed the The Radical Republicans passed the first Civil Rights Amendment Act over President Johnson's veto, and then, in order to make their policy as nearly irrevocable as possible and remove all doubts concerning the constitutionality of such legislation, the Fourteenth Amendment was submitted to the States and two years later (1868) ratified by the necessary three-fourths majority. The Amendment begins by "recalling" the Dred Scott decision. This was done by a provision that 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 slavery is and what liberty is. . . ." Then, quoting Blackstone's definition of political liberty, he proceeded: "That is the liberty to which every citizen is entitled; that is the liberty which was intended to be secured by the Declaration of Independence and the Constitution of the United States originally, and more especially by the amendment which has recently been adopted; and in a note to Blackstone's Commentaries it is stated that 'In this definition of civil liberty it ought to be understood, or rather expressed, that the restraints introduced by the law should be equal to all, or as much so as the nature of things will admit.' Then, sir, I take it that any statute which is not equal to all, and which deprives any citizen of civil rights which are secured to other citizens is an unjust encroachment upon his liberty; and is, in fact, a badge of servitude which by the Constitution is prohibited." Thus he justified the Civil Rights Act as an act to declare the meaning of the Thirteenth Amendment and to regulate the process by which Freedmen might vindicate their rights in the courts of justice. 1 reside. That made the negroes incontestably part of the American people. It next provides that no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. That assured to the negroes the public liberty of Americans. Their public liberty in the capacity of citizens of particular States was secured to them, now that their citizenship was assured in the States wherein they might reside as well as in the United States, by that provision of the original Constitution, guaranteeing to the citizens of each State all the privileges and immunities of citizens in the several States. These absolute guarantees of the privileges and immunities of citizens were strengthened and confirmed by the further provision that no State should deny to any person within its jurisdiction, whether a citizen or not, the equal protection of the laws.1 Finally, in addition to these absolute guarantees, the The Fourteenth Amendment provides the conditional guar- clause due-process antee that no State shall deprive any person of life, liberty, or property without due process of law. A person may 1 The distinction between State and Federal citizenship was preserved, despite the arguments of those who would have liked to merge State citizenship into that of the Union, because of the differences that had existed and might continue to be found desirable between the public liberty of citizens of different States. Originally, for instance, some States had laws establishing state churches or favoring particular sects above others. While complete religious liberty had become the policy of all the States a generation before the final emancipation of the slaves, there was nothing in the Federal Constitution to prevent a State from abridging the freedom of religion, as several of them had formerly done, or altering the institution of marriage, as the Mormons were then doing in their desert-refuge, or revolutionizing the system of private property in order to experiment with some form of communism, as many Americans of the generation before the Civil War wished to do. There was no purpose on the part of the Congress, which framed the Fourteenth Amendment, to make public liberty mean the same thing in all the States of the Union. Room was to be left, after the adoption of the Fourteenth Amendment as before, for a diversity of institutions and of rights in the several States, provided that the States did not disturb the equality of negroes and whites before the law. be deprived of this liberty, although, if a citizen, he is entitled to all the privileges and immunities of American citizens and, even if not a citizen, may not be denied the equal protection of the laws; but he may be deprived of this liberty only with due process of law. It would seem clear that this particular liberty, of which he may under certain circumstances be deprived, cannot be the public liberty of an American citizen, because the privileges and immunities composing his public liberty cannot be constitutionally taken from him by the ordinary process of law, but only by a constitutional amendment. It cannot be complete political liberty, because that is a philosophical, not a juristic, concept, and cannot be justly diminished by any process of law. It is evident that the authors of the Amendment intended that negroes, like whites, should enjoy the blessings of that liberty which is specified in the Preamble to the Constitution as the last of the great objects of constitutional government in the United States. But this liberty is the concern of the entire first section of the Amendment, not of any particular clause alone, certainly not of any single phrase or word. In the light of all the circumstances which illuminate the Fourteenth Amendment, can it be said that the specific liberty of which a person may not be deprived by any State without due process of law is any other than the personal liberty which was protected against undue restraint through the action of the Federal Government by the Fifth Amendment adopted seventy-seven years before? The answer could hardly fail to be in the negative, but for the fact that the Supreme Court of the United States has itself given another answer to the question. This answer, however, was not given without long hesitation and did not become the foundation for judicial decisions, affecting the adjustment of the conflicting interests of different classes of people, until after the close of the nineteenth century. Within the present century, unfortunately, disputes over the meaning of liberty have produced livelier controversy than any other juristic problems arising under the Constitution. 3 Slaughter The first occasion for judicial consideration of the The liberty of the Fourteenth Amendment was furnished by house Cases the notorious Slaughterhouse Cases, decided by the Federal Supreme Court in 1873. In 1869 the "carpetbag" legislature of Louisiana granted to a corporation, specially created for the purpose, the exclusive privilege for twenty-five years of maintaining slaughterhouses in New Orleans. Such a grant seemed an intolerable discrimination to the local butchers, whom it would put out of business unless they did their slaughtering on the premises of the favored corporation, paying the charges demanded for a share in the privilege; and the impending monopoly became odious to the people of the locality. The grant was accordingly attacked in the courts on several grounds, among others, that it conflicted with the Fourteenth Amendment. It was contended on behalf of the butchers of New Orleans that the grant abridged their privileges and immunities as citizens of the United States, and also that it deprived them of property without due process of law. Little was said about their constitutional liberty, except what was implied in the claim of the privileges and immunities of citizenship. The case, therefore, raised squarely the question where the line should be drawn between those rights of citizens which belong to them by virtue of their State citizenship and those which they are entitled to enjoy as citizens of the United States. It raised also the question whether a butcher's business is property of which he may not be constitutionally deprived 116 Wallace, 36. |