“In case of the usurpation of the government of a State by one man or an oligarchy, it becomes a duty of the United States to make good the guaranty to that State of a republican form of government.”
The President forgets to mention an aristocracy, and does not add, what is true, that the authority bound to make good the guaranty is the sole judge of the exigency. To this end everything centres in Congress, whose powers are commensurate with the occasion. In aid of the guaranty are those other words providing that Congress “shall have power to make all laws which shall be necessary and proper for carrying into execution the powers vested by the Constitution in the Government of the United States.” Under this ample provision there is a duty to be performed, by any means that seem best. The jurisdiction is complete, and it is in Congress. If any authority were needed for this proposition, it would be found in the words of Chief Justice Taney himself, speaking for the Supreme Court of the United States:—
“The fourth section of the fourth article of the Constitution of the United States provides that the United States shall guaranty to every State in the Union a republican form of government, and shall protect each of them against invasion, and, on the application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic violence.
“Under this article of the Constitution, it rests with Congress to decide what government is the established one in a State. For, as the United States guaranty to each State a republican government, Congress must necessarily decide what government is established in the State, before it can determine whether it is republican or not.”[184]
In the exercise of this power two courses are open. One is to impose an irrepealable condition upon the unrepublican States, requiring them, before recognition, to re-form their governments to the satisfaction of Congress. The other, and more direct, is by Act of Congress, in performance of the guaranty, and according to the plenary authority “for carrying into execution the powers vested by the Constitution in the Government of the United States,” to provide all needful safeguards in the unrepublican States, and especially to place the Equal Rights of All under the guardianship of National Law.
Against the exercise of this power there are but two arguments. First, that the Constitution, by providing that “the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature,” has reserved to each State the power of excluding citizens merely on account of color, even though constituting more than a majority of the population. The other argument is, that, since certain States at the North have disfranchised the few colored persons within their borders, the United States are so far constrained by this example that they cannot protect the millions of freedmen in the Rebel States from disfranchisement, and cannot save the Republic from the peril of crying injustice. I know not which of these two arguments is the least reasonable, or rather, which is the most reprehensible. They are both unreasonable, and both reprehensible. They both do violence to the true principles of the National Constitution, if not to common sense.
It is true, that, according to the text of the Constitution, each State may determine the “qualifications” of electors; but this can have no application to an exigency like the present, where, at the close of a prolonged and desperate rebellion, the United States are obliged to guaranty to certain States a republican form of government. In the performance of this guaranty, the United States will look only at the essential elements of such a government, nor more nor less, without regard to State laws. But I am unwilling to rest the argument here. Even assuming that there has been no lapse of State governments, so as to bring the guaranty into operation,—assuming that we are in a condition of assured peace,—then I utterly deny that the power to determine the “qualifications” of electors can give any power to disfranchise actual citizens. It is “qualifications” only which the States can determine,—meaning by this limited term those requirements of personal condition regarded as essential to the security of the franchise. These “qualifications” cannot be in nature permanent or insurmountable. Color cannot be a “qualification,” any more than size, or quality of hair. A permanent or insurmountable “qualification” is equivalent to deprivation of suffrage; in other words, it is the tyranny of taxation without representation, and this tyranny, I insist, is not intrusted to any State. This is the very ground taken by Mr. Madison, when defending the National Constitution in the Virginia Convention.
“Some States might regulate the elections on the principles of Equality, and others might regulate them otherwise.… Should the people of any State, by any means, be deprived of the right of suffrage, it was judged proper that it should be remedied by the General Government.… If the elections be regulated properly by the State Legislatures, the Congressional control will very probably never be exercised. The power appears to me satisfactory, and unlikely to be abused as any part of the Constitution.”[185]
With these decisive words from a chief framer of the National Constitution, backed by the reason of the case, I dismiss this objection to the little consideration it deserves. And I dismiss to the same indifference the other objection, that our hands are tied because certain Northern States have done a wrong and mean thing. Pray, Sir, how can the failure of these States affect the power of Congress in a great exigency under the National Constitution? Duty here is identical with power. No matter if the power has been long dormant, it is none the less vital. It is like the slumbering statute which Cicero describes as a sword in the scabbard, tanquam gladius in vagina. It only remains that it be drawn forth.