In discussing this question we must not confound the rights of citizenship, which a State may confer within its own limits, and the rights of citizenship as a member of the Union. It does not by any means follow, because he has all the rights and privileges of a citizen of a State, that he must be a citizen of the United States.... But if he rank as a citizen of the State to which he belongs, within the meaning of the Constitution of the United States, then, whenever he goes into another State, the Constitution clothes him as to the rights of person, with all the privileges and immunities which belong to citizens of the State. And if persons of the African race are citizens of a State, and of the United States, they would be entitled to all of these privileges and immunities in every State, and the State could not restrict them; for they would hold these privileges and immunities under the paramount authority of the Federal Government, and its courts would be bound to maintain and enforce them, the Constitution and laws of the State to the contrary notwithstanding. And if the States could limit or restrict them, or place the party in an inferior grade, this clause of the Constitution would be unmeaning, and could have no operation, and would give no rights to the citizen when in another State. He would have none but what the State itself chose to allow him. This is evidently not the construction or meaning of the clause in question. It guarantees rights to the citizen, and the State can not withhold them. (Dred Scott vs. Sanford, 19 Howard's Rep., pp. 405 and 422.)
Miller, J.: This case involves the constitutional validity of that portion of the act to provide for a convention to revise and amend the Constitution of this State, which excludes from the privilege of voting all who refuse to take the test oath prescribed by the act in question.
I think that the oath in question was unconstitutional and invalid, for the reasons which I will proceed to state. The first subdivision of the tenth section of the first article of the Constitution of the United States provides, that "no State shall pass any bill of attainder, ex post facto law, or laws impairing the obligations of contracts, or grant any title of nobility." The provision of the act which is to be considered declares, that no person shall vote at the election for delegates to said convention who will not, if duly challenged, take and subscribe an oath that he has not done certain acts mentioned therein, and inflicts the penalty of political disfranchisement without any preliminary examination or trial, for a refusal to take said oath.
By this enactment the citizen is deprived, upon declining to conform to its mandate, of a right guaranteed to him by the Constitution and laws of the land, and one of the most inestimable and invaluable privileges of a free government. There can be no doubt, I think, that to deprive a citizen of the privileges of exercising the elective franchise, for any conduct of which he has previously been guilty, is to inflict a punishment for the act done.
It imposes upon him a severe penalty, which interferes with his privileges as a citizen, affects his respectability and standing in the community, degrades him in the estimation of his fellow-men, and reduces him below the level of those who constitute the great body of the people of which the Government is composed. It moreover inflicts a penalty which, by the laws of this State, is a part of the punishment inflicted for a felony, and which follows conviction for such a crime. It is one of the peculiar characteristics of our free institutions, that every citizen is permitted to enjoy certain rights and privileges, which place him upon an equality with his neighbors. Any law which takes away or abridges these rights, or suspends their exercise, is not only an infringement upon their enjoyment, but an actual punishment. That such is the practical effect of the test oath required by the act in question, can admit of no doubt, in my judgment. It arbitrarily and summarily, and without any of the forms of law, punishes for an offense created by the law itself. In the formation of our National Constitution, its framers designed to prevent and guard against the exercise of the power of the Legislature, by usurping judicial functions, and for the punishment of alleged offenses in advance of trial, for offenses unknown to the law, and by bill of attainder and ex post facto enactments, etc.—(Green vs. Shumway, 36 Howard's Practice Rep., pp. 7, 8.)
Lewis, C. J.—The form of the law by which an individual is deprived of a constitutional right is immaterial. The test of its constitutionality is, whether it operates to deprive any person of a right guaranteed or given to him by the Constitution. If it does, it is a nullity, whatever may be its form. Surely a law which deprives a person of a right, by requiring him to take an oath which he can not take, is no less objectionable than one depriving him of such right in direct terms.
To make the enjoyment of a right depend upon an impossible condition, or upon the doing of that which can not legally be done, is equivalent to an absolute denial of the right under any condition. The effect, and not the language of the law, in such case, must determine its constitutionality. It would not be doubted for a moment that a law expressly denying the elective franchise to any person upon whom the Constitution confers it would be unconstitutional. Why, then, is a law less objectionable which, although not expressly and directly, yet no less certainly denies the right, etc.—(Davies vs. McKeeby, 5 Nevada Rep. 7,371.)
The elective franchise is a right which the law protects and enforces as jealously as it does property in chattels or lands. It matters not by what name it is designated—the right to vote, the elective franchise, or the privilege of the elective franchise—the person who, under the Constitution and laws of the State is entitled to it, has a property in it, which the law maintains and vindicates as vigorously as it does any right of any kind which men may have and enjoy.
The State vs. Staten, 6 Caldwell's Rep., p. 243. See also Rison vs. Farr, 25 Ark. Rep., p. 173; Winehamer vs. People, 13 N. Y., 378; State vs. Symonds, 57 Maine, 150, 511; Huber vs. Riley, 53 Penn., 112; Cooley's Constitutional Limitations.
By the law of the land is most clearly intended the general law; a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial. The meaning is, that every citizen shall hold his life, liberty, property, and immunities, under the protection of the general rules which govern society. Everything which may pass under the form of an enactment is not, therefore, to be considered the law of the land. If this were so, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man's estate to another, legislative judgments, decrees and forfeiture, in all possible forms, would be the law of the land.
Such a strange construction would render constitutional provisions of the highest importance completely inoperative and void. It would tend directly to establish the union of all powers in the Legislature. There would be no general permanent law for courts to administer, or for men to live under. The administration of justice would be an empty form—an idle ceremony. Judges would sit to execute legislative judgments and decrees; not to declare the law, or to administer the justice of the country.
What are the privileges and immunities of citizens in the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are in their nature fundamental; which belong of right to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several States which compose this Union, from the time of their becoming free, independent, and sovereign. What those fundamental principles are, it would perhaps be more tedious than difficult to enumerate.
They may, however, be all comprehended under the following general heads: Protection by the Government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the Government may justly prescribe for the general good of the whole; the right of a citizen of one State to pass through, or to reside in any other State for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of every kind in the courts of the State; to take, hold, and dispose of property, either real or personal; and an exemption from higher taxes or imposition than are paid by the citizens of the other State, may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental; to which may be added, the elective franchise, as regulated and established by the laws or Constitution of the State in which it is to be exercised (Corfield vs. Corryell, 4 Wash. C.C., 380). Cited and approved in Dunham vs. Lamphere, 3 Gray, 276 (Mass.); Bennett vs. Boggs, Baldwin Rep., 72.
Article 1, Section 2. The House of Representatives shall be composed of members chosen every second year by the people of the several States; and the electors in each State shall have the qualifications for electors of the most numerous branch of the State Legislature.
The question presented then is, whether there is a conflict between the Constitution of the United States and the Constitution and laws of the State of Missouri on this subject. That the different States of the Union had a right, previous to the adoption of what is known as the XIV. Amendment to the Constitution of the United States, to limit the right to vote at election by their constitutions and laws to the male sex, I think can not at this day be questioned.
In this changed state of affairs, it was thought by those who originated and adopted this Amendment, that it was absolutely necessary that these emancipated people should have the elective franchise, in order to enable them to protect themselves against unfriendly legislation, in which they could take no part; that unless these people had the right to vote, and thus protect themselves against oppression, their freedom from slavery would be a mockery, and their condition but little improved. It was to remedy this that the XIV. Amendment to the Constitution was adopted. It was to compel the former slave States to give these freedmen the right of suffrage, and to give them all of the rights of other citizens of the respective States, and thus make them equal with other citizens before the law.