This decision takes from seven millions of people the shield of the Constitution. It leaves the best of the colored race at the mercy of the meanest of the white. It feeds fat the ancient grudge that vicious ignorance bears toward race and color. It will be approved and quoted by hundreds of thousands of unjust men. The masked wretches who, in the darkness of night, drag the poor negro from his cabin, and lacerate with whip and thong his quivering flesh, will, with bloody hands, applaud the Supreme Court. The men who, by mob violence, prevent the negro from depositing his ballot—who with gun and revolver drive him from the polls, and those who insult with vile and vulgar words the inoffensive colored girl, will welcome this decision with hyena joy. The basest will rejoice—the noblest will mourn.
But even in the presence of this decision, we must remember that it is one of the necessities of government that there should be a court of last resort; and while all courts will more or less fail to do justice, still, the wit of man has, as yet, devised no better way. Even after reading this decision, we must take it for granted that the judges of the Supreme Court arrived at their conclusions honestly and in accordance with the best light they had. While they had the right to render the decision, every citizen has the right to give his opinion as to whether that decision is good or bad. Knowing that they are liable to be mistaken, and honestly mistaken, we should always be charitable enough to admit that others may be mistaken; and we may also take another step, and admit that we may be mistaken about their being mistaken. We must remember, too, that we have to make judges out of men, and that by being made judges their prejudices are not diminished and their intelligence is not increased. No matter whether a man wears a crown or a robe or a rag. Under the emblem of power and the emblem of poverty, the man alike resides. The real thing is the man—the distinction often exists only in the clothes. Take away the crown—there is only a man. Remove the robe—there remains a man. Take away the rag, and we find at least a man.
There was a time in this country when all bowed to a decision of the Supreme Court. It was unquestioned. It was regarded as "a voice from on high." The people heard and they obeyed. The Dred Scott decision destroyed that illusion forever. From that day to this the people have claimed the privilege of putting the decisions of the Supreme Court in the crucible of reason. These decisions are no longer exempt from honest criticism. While the decision remains, it is the law. No matter how absurd, no matter how erroneous, no matter how contrary to reason and justice, it remains the law. It must be overturned either by the Court itself (and the Court has overturned hundreds of its own decisions), or by legislative action, or by an amendment to the Constitution. We do not appeal to armed revolution. Our Government is so framed that it provides for what may be called perpetual peaceful revolution. For the redress of any grievance, for the purpose of righting any wrong, there is the perpetual remedy of an appeal to the people.
We must remember, too, that judges keep their backs to the dawn. They find what has been, what is, but not what ought to be. They are tied and shackled by precedent, fettered by old decisions, and by the desire to be consistent, even in mistakes. They pass upon the acts and words of others, and like other people, they are liable to make mistakes. In the olden time we took what the doctors gave us, we believed what the preachers said; and accepted, without question, the judgments of the highest court. Now it is different. We ask the doctor what the medicine is, and what effect he expects it to produce. We cross-examine the minister, and we criticise the decision of the Chief-Justice. We do this, because we have found that some doctors do not kill, that some ministers are quite reasonable, and that some judges know something about law. In this country, the people are the sovereigns. All officers—including judges—are simply their servants, and the sovereign has always the right to give his opinion as to the action of his agent. The sovereignty of the people is the rock upon which rests the right of speech and the freedom of the press.
Unfortunately for us, our fathers adopted the common law of England—a law poisoned by kingly prerogative—by every form of oppression, by the spirit of caste, and permeated, saturated, with the political heresy that the people received their rights, privileges and immunities from the crown. The thirteen original colonies received their laws, their forms, their ideas of justice, from the old world. All the judicial, legislative, and executive springs and sources had been touched and tainted.
In the struggle with England, our fathers justified their rebellion by declaring that Nature had clothed all men with the right to life, liberty, and the pursuit of happiness. The moment success crowned their efforts, they changed their noble declaration of equal rights for all, and basely interpolated the word "white." They adopted a Constitution that denied the Declaration of Independence—a Constitution that recognized and upheld slavery, protected the slave-trade, legalized piracy upon the high seas—that demoralized, degraded, and debauched the nation, and that at last reddened with brave blood the fields of the Republic.
Our fathers planted the seeds of injustice, and we gathered the harvest. In the blood and flame of civil war, we retraced our fathers' steps. In the stress of war, we implored the aid of Liberty, and asked once more for the protection of Justice. We civilized the Constitution of our fathers. We adopted three Amendments—the 13th, 14th and 15th—the Trinity of Liberty.
Let us examine these amendments:
"Neither slavery, nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction.
"Congress shall have power to enforce this article by appropriate legislation."