Justice Harlan shows that Congress had the right to legislate directly while that power was only implied, but that the moment this power was conferred in express terms, then according to the Supreme Court, it was lost.
There is another splendid definition given by Justice Harlan—a line drawn as broad as the Mississippi. It is the distinction between the rights conferred by a State and rights conferred by the Nation. Admitting that many rights conferred by a State cannot be enforced directly by Congress, Justice Harlan shows that rights granted by the Nation to an individual may be protected by direct legislation. This is a distinction that should not be forgotten, and it is a definition clear and perfect.
Justice Harlan has shown that the Supreme Court failed to take into consideration the intention of the framers of the amendment; failed to see that the powers of Congress were given by express terms and did not rest upon implication; failed to see that the Thirteenth Amendment was broad enough to cover the Civil Rights Act; failed to see that under the three amendments rights and privileges were conferred by the Nation on citizens of the several States, and that these rights are under the perpetual protection of the General Government, and that for their enforcement Congress has the right to legislate directly; failed to see that all implications are now in favor of liberty instead of slavery; failed to comprehend that we have a new nation with a new foundation, with different objects, ends, and aims, for the attainment of which we use different means and have been clothed with greater powers; failed to see that the Republic changed front; failed to appreciate the real reasons for the adoption of the amendments, and failed to understand that the Civil Rights Act was passed in order that a citizen of the United States might appeal from local prejudice to national justice.
Justice Harlan shows that it was the object to accomplish for the black man what had been accomplished for the white man—that is, to protect all their rights as free men and citizens; and that the one underlying purpose of the amendments and of the congressional legislation has been to clothe the black race with all the rights of citizenship, and to compel a recognition of their rights by citizens and States—that the object was to do away with class tyranny, the meanest and basest form of oppression.
If Justice Harlan was wrong in his position, then, it may truthfully be said of the three amendments that:
"The law hath bubbles as the water has,
And these are of them."
The decision of the Supreme Court denies the protection of the Nation to the citizens of the Nation. That decision has already borne fruit—the massacre at Danville. The protection of the Nation having been withdrawn, the colored man was left to the mercy of local prejudices and hatreds. He is without appeal, without redress. The Supreme Court tells him that he must depend upon his enemies for justice.
Question. You seem to agree with all that Justice Harlan has said, and to have the greatest admiration for his opinion?
Answer. Yes, a man rises from reading this dissenting opinion refreshed, invigorated, and strengthened. It is a mental and moral tonic. It was produced after a clear head had held conference with a good heart. It will furnish a perfectly clear plank, without knot or wind-shake, for the next Republican platform. It is written in good plain English, and ornamented with good sound sense. The average man can and will understand its every word. There is no subterfuge in it.
Each position is taken in the open field. There is no resort to quibbles or technicalities—no hiding. Nothing is secreted in the sleeve—no searching for blind paths—no stooping and looking for ancient tracks, grass-grown and dim. Each argument travels the highway—"the big road." It is logical. The facts and conclusions agree, and fall naturally into line of battle. It is sincere and candid—unpretentious and unanswerable. It is a grand defence of human rights—a brave and manly plea for universal justice. It leaves the decision of the Supreme Court without argument, without reason, and without excuse. Such an exhibition of independence, courage and ability has won for Justice Harlan the respect and admiration of "both sides," and places him in the front rank of constitutional lawyers.