The essential element of this decision was, that persons “guilty of a skin not colored like our own” could not be citizens of the United States; and this postulate was sustained by that remarkable assertion, outrageously false in history, that at the adoption of the Constitution colored persons were regarded as having no rights which the white man was bound to respect,—when, in point of fact, at that time they enjoyed the right of citizens in several States of the Union, while in England, Scotland, France, and Holland, to say nothing of other countries, it had been solemnly declared that all men within their respective borders were free.
In the lapse of time this decision passed out of sight. It seemed to be dead. Blasted at once by an indignant public sentiment, it received a more formal condemnation on two separate occasions: first, when the Attorney General, in an elaborate opinion, declared that a colored person was a citizen of the United States;[217] and, secondly, when the Supreme Court of the United States admitted a colored person as a counsellor at its bar.[218] We all thought this decision dead, and the whole practice of the Government was altered accordingly. Passports were issued to colored persons as citizens, and licenses to enter into the country trade were awarded to colored persons as citizens. For the time being that ill-begotten decision was practically dead.
But now it is once more alive. Bursting the cerements of the grave, it again stalks into this Chamber to fright us from our propriety. Not now from the Supreme Court does it come, but from the President. That public opinion which did not hesitate to condemn the Supreme Court cannot hesitate now to condemn the President.
The veto does not undertake to declare precisely that colored persons are not citizens under the Constitution, but it forbids all legislation positively declaring this citizenship. It is the Dred Scott decision in a new draught. It is the same thing, only with a new shake of the kaleidoscope. You cannot adopt this veto without practically overturning the recent practice of the Government, and setting aside that opinion of Attorney-General Bates which is one of the most illustrious acts in the Administration of President Lincoln. For myself, I have always regarded that production as of the first importance in our recent history. The future historian, as he records the events by which the Republic has been elevated, must dwell with pride upon that simple act, where a single officer of the Government did so much to fix the liberties of a race.
I have said that this veto revives the Dred Scott decision. It does more. It is bad to revive the worst decision in our history; but this veto practically sets aside one of the best decisions in our history. I refer to the case of M’Culloch v. Bank of Maryland, where our great magistrate, Chief Justice Marshall, expended all his marvellous talent in expounding the powers of Congress under the Constitution. In all the annals of the Supreme Court there is no decision more carefully considered or wrought with a finer skill. In this remarkable judgment it has been positively declared, that, where the Constitution confers upon Congress certain powers, it is within the discretion of Congress to determine when and how they shall be exercised. Here are the precise words:—
“The government which has a right to do an act, and has imposed on it the duty of performing that act, must, according to the dictates of reason, be allowed to select the means; and those who contend that it may not select any appropriate means, that one particular mode of effecting the object is excepted, take upon themselves the burden of establishing that exception.… Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.”[219]
According to this authoritative text, Congress must determine the “means” it will employ in the exercise of its powers. But this veto pretends to despoil Congress of this discretion.
In the exercise of its discretion, Congress has undertaken to assure civil rights to colored persons. It has been moved to this especially in pursuance of the second clause of the Thirteenth Amendment, where it is empowered to enforce the prohibition of Slavery by appropriate legislation. The present bill is regarded as essential to enforce the prohibition of Slavery, and Congress, in the exercise of its discretion under the Constitution, has passed it. But the veto comes to arrest this discretion. So far as its influence goes, it will neutralize and nullify the great Amendment by which Slavery has been abolished. It leaves the letter in the Constitution, but it takes away the powers by which that letter is made a living soul.
I have said enough to condemn the veto. I have shown, first, that it revives a most odious judgment, and, secondly, that it subverts a received rule of interpretation, and degrades that Constitutional Amendment which is the glory of our recent history. But I go further.