BY-LAW VOID.
The Court will declare the by-law of the School Committee unconstitutional and illegal, although there are no express words of prohibition in the Constitution and Laws.
It is hardly necessary to say anything in support of this proposition. Slavery was abolished in Massachusetts, under the Declaration of Rights in our Constitution, without any specific words of abolition in that instrument, or in any subsequent legislation.[44] The same words which are potent to destroy Slavery must be equally potent against any institution founded on Inequality or Caste. The case of Boston v. Shaw (1 Metcalf, 130), to which reference has been already made, where a by-law of the city was set aside as unequal and unreasonable, and therefore void, affords another example of the power which I here invoke. But authorities are not needed. The words of the Constitution are plain, and it will be the duty of the Court to see that they are applied to the discrimination now waiting for judgment.
The Court might justly feel delicacy, if called to revise an act of the Legislature. But it is simply the action of a local committee that they are to overrule. They may also be encouraged by the circumstance that it is only to the schools of Boston that their decision can be applicable. Already the other towns have voluntarily banished Caste. Banishing it from the schools of Boston, the Court will bring them into much-desired harmony with the schools of other towns, and with the whole system of Common Schools. I am unwilling to suppose that there can be any hesitation or doubt. If any should arise, there is a rule of interpretation which is plain. According to familiar practice, judicial interpretation is made always in favor of life or liberty. So here the Court should incline in favor of Equality, that sacred right which is the companion of those other rights. In proportion to the importance of this right will the Court be solicitous to vindicate and uphold it. And in proportion to the opposition which it encounters from prejudices of society will the Court brace themselves to this task. It has been pointedly remarked by Rousseau, that "it is precisely because the force of things tends always to destroy Equality that the force of legislation should always tend to maintain it."[45] In similar spirit, and for the same reason, the Court should always tend to maintain Equality.