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Page:Harvard Law Review Volume 2.djvu/381

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places of public amusement are under a duty to serve the whole public alike, and it is clearly within the power of a State to enforce that duty. But upon the whole it must be said that legislation looking to the establishment of social equality between two races is not generally successful, and is not to be encouraged. Such matters had better be left to themselves ; and it is not likely that the United States will attempt anything further in this direction, for only the excited period following the war can explain the faith which people had in the power of government to establish harmony and good-fellowship between the races, and the eagerness with which they followed the lead of men like Sumner, who, with the highest motives of philanthropy, attempted the impossible, and, it must be added, the unconstitutional.

There is, however, a field within which federal legislation is both constitutional and, to some degree, practicable. Citizens of the United States and of the States have certain political rights. It is claimed by many that these rights are denied to the negro in the Southern States ; and, from the point of view of the lawyer, the " Southern Question " to-day practically means. What are these rights, and how are they to be protected 1

We must first decide what rights are, from their nature, within the protection of the States, and what within the protection of the United States. The XlVth Amendment says that no State shall make or enforce any law which shall abridge the privileges or im- munities of citizens of the United States ; and Congress is given power to enforce this prohibition by appropriate legislation. What are the privileges and immunities of citizens of the United States } Do they comprise all rights enjoyed by citizens, whether coming from the United States or not, or only rights derived from the United States ^ Very likely the XlVth Amendment intended the former ; but the Supreme Court, when the question arose in the "Slaughter-House Cases," in 1872,^ perceiving that thereby the jurisdiction of the United States would be enormously extended, shrewdly determined that only the latter were meant. The attri- butes of citizenship of the United States, as distinguished from citizenship of the States, arise, it was said, from the nature and essential character of the general government, and are, therefore, very limited indeed ; while, on the other hand, the attributes of State citizenship are all those general ai>d fundamental rights

1 16 Wall 36.