Mr. Sumner, on the first day of the session, had introduced a “Bill supplying appropriate legislation to enforce the Amendment to the Constitution prohibiting Slavery.”[212] He had also succeeded at an earlier day in opening the courts of the District of Columbia,[213] and then the courts of the United States, to colored testimony.[214] The bill of Mr. Trumbull was introduced after consultation with Mr. Sumner, who watched its progress with absorbing interest, not doubting that it would be a precedent for a similar bill securing political rights. That the latter were embraced in civil rights was ably stated by Mr. Bingham, of Ohio, in the House of Representatives, while the Civil Rights Bill was under discussion.
“A distinction is taken, I know very well, in modern times, between civil and political rights. I submit with all respect that the term ‘political rights’ is only a limitation of the term ‘civil rights,’ and by general acceptation signifies that class of civil rights which are more directly exercised by the citizen in connection with the government of his country. If this be so, are not political rights all embraced in the term ‘civil rights,’ and must it not of necessity be so interpreted? Blackstone, whose Commentaries on the Common Law are so exact in definition, uses in that classic of the law the terms ‘civil liberty’ and ‘political liberty’ everywhere as synonymous. It never occurred to him that there was a colorable distinction between them.”[215]
Another point equally clear to Mr. Sumner was, that a bill to secure equal rights at the ballot-box was “appropriate legislation” in enforcement of the Constitutional Amendment abolishing Slavery, just as much as the Civil Rights Bill. If the latter was constitutional, so also was the former. This appears in the speech of February 5th and 6th, and also in that of March 7th. But he took care to present it briefly in the debate on the Constitutional Amendment.
February 9th, interrupting Mr. Reverdy Johnson, of Maryland, with his permission, Mr. Sumner, after reading the operative words of the Civil Rights Bill, which had already passed the Senate and was then pending in the House, said:—
As I understand it, this bill, which, as the Senator will see, actually annuls all State laws, everywhere throughout the United States, fixing any inequality in civil rights, is founded upon the second clause of the recent Amendment to the Constitution abolishing Slavery. Now the point to which I ask the attention of the Senator, before he passes from this branch of the discussion, is, whether, if we can annul all State laws declaring inequality in civil rights, we cannot also annul all State laws declaring inequality in political rights? whether, if this bill is constitutional, as I believe it is, such a bill as I propose would not also be constitutional? And in this connection I call attention to the famous judgment of Chief Justice Marshall, which the Senator remembers so well, in the case of M’Culloch v. The State of Maryland,[216] where the Chief Justice distinctly announces, having the point before him, that it is within the power of Congress to select its means, provided the means are appropriate to the end, and it is not for the Supreme Court, or any other branch of the Government, to sit in judgment on the means Congress chose to select. Therefore, if Congress now think, that, to enforce the abolition of Slavery, it is necessary, in the first place, to annul all inequality of civil rights, and, in the second place, to annul all inequality of political rights, I ask the Senator whether the latter proposition can be called in question?—whether an Act of Congress annulling all State laws declaring inequality of political rights is not absolutely constitutional, being “appropriate legislation” to enforce the Constitutional Amendment?
Mr. Johnson replied, that he had stated more than once that the bill on which Mr. Sumner “now relies is unconstitutional,” and then said:—
“But even supposing it to be within the power of Congress to pass a law of that kind, it by no means follows that I think it has power to pass a law placing all the inhabitants of the States on the same political ground.”
Later in his speech Mr. Sumner interrupted Mr. Johnson again, with his permission:—
My argument is, that, if, to carry out the prohibition of Slavery, and to complete the duty of Abolition, it shall be regarded necessary to confer the franchise, it is within the power of Congress so to do. And now I ask my honorable friend to give the Senate the benefit of his opinion on this precise point. If Congress, under the Constitutional Amendment, can secure equality of civil rights, may it not, a fortiori, secure equality in political rights, under the same clause? I do not ask the Senator whether in his opinion it may under that clause confer equality in civil rights. I assume that it can, and the Senator knows well that the Senate has acted accordingly. Senators all about me assume that power; and now I ask the Senator, as a Constitutional lawyer to whom we refer daily, whether, if you can do the one, you cannot do the other?