It is stronger,—more energetic:—
“Congress shall have power to enforce”—
Mark, Sir, the vitality of the word—
“to enforce this article by appropriate legislation.”
The whole field of apt legislation is open to be employed by Congress in enforcing Abolition. Congress entered upon that field and passed the original Civil Rights Act. And who among us now, unless one of my friends on the other side of the Chamber, questions the constitutionality of that Act? Does any one? Does any one doubt it? Does any one throw any suspicion upon it? Would any one have it dropped from the statute-book on any ground of doubt or hesitation? If there is any Senator in this category, I know him not. I really should like to have him declare himself. I will cheerfully yield the floor to any one willing to declare his doubts of the constitutionality of the Civil Rights Act. [After waiting a sufficient time.] Sir, there is no Senator who doubts it.
Now, how can any Senator, recognizing the constitutionality of the original Civil Rights Act, doubt the present supplementary measure? Each stands on the same bottom. If you doubt one, you must doubt the other. If you rally against that Amendment, your next move should be to repeal the existing Civil Rights Act as inconsistent with the Constitution. Why does not my excellent friend from Maine bring forward his bill? Why does he not invite the Senate to commence the work of destruction, to tear down that great remedial statute? Why is he silent? Why does he hang back, and direct all his energies against the supplementary measure, which depends absolutely upon the same constitutional power? If he is in earnest against the pending motion, he must show the same earnestness against the preliminary Act.
When I assert that Congress has ample power over this question, I rely upon a well-known text often cited in this Chamber, often cited in our courts,—the judgment of the Supreme Court pronounced by Chief-Justice Marshall, in the case of McCulloch v. State of Maryland, from which I will read a brief extract:—
“But the argument on which most reliance is placed is drawn from the peculiar language of this clause. Congress is not empowered by it to make all laws which may have relation to the powers conferred on the Government, but such only as may be ‘necessary and proper’ for carrying them into execution. The word ‘necessary’ is considered as controlling the whole sentence, and as limiting the right to pass laws for the execution of the granted powers to such as are indispensable, and without which the power would be nugatory,—that it excludes the choice of means, and leaves to Congress in each case that only which is most direct and simple.”
These words show how the case was presented to the Court. Here is the statement of John Marshall:—
“We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the National Legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. 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.”[223]