The court here, however, evaded the real question as before, dodging behind the doctrine that while a State or the United States could not abridge the privileges and immunities of citizens, individuals or groups of individuals may do so and Congress has no power to interfere in such matters since these come within the police power of the State. In other words, the government cannot discriminate against the Negro itself, but it can establish agencies with power to do it. It is not surprising that Justice Harlan dissented, feeling as he had on former occasions that this decision permitted the States and groups of individuals supposedly subject to the government of those States to fasten upon the Negro badges or incidents of slavery in violation of the civil rights guaranteed him by the Thirteenth and Fourteenth Amendments. He believed that Congress had the right to pass any law to protect citizens in the enjoyment of any right granted him by Congress. The duty of the Federal government as Justice Harlan saw it was very clear in that the State had caused the race question to be injected therein and in such a case Congress always has power to act.
On the whole, however, the United States Supreme Court has not yet had the moral courage to face the issue in cases involving the constitutional rights of the Negro. Not a decision of that tribunal has yet set forth a straightforward opinion as to whether the States can enact one code of laws for the Negroes and another for the other elements of our population in spite of the fact that the Constitution of the United States prohibits such iniquitous legislation. In cases in which this question has been frankly put the court has wiggled out of it by some such declaration as that the case was improperly brought, that there were defects in the averments, or that the court lacked jurisdiction.
In the matter of jurisdiction the United States Supreme Court has been decidedly inconsistent. This tribunal at first followed the opinion of Chief Justice John Marshall in the case of Osborn v. United States Bank,[79] that "when a question to which the judicial power of the United States is extended by the Constitution forms an ingredient of the original cause it is in the power of Congress to give the Circuit Courts the jurisdiction of that cause, although other questions of fact or of law may be involved." Prior to the rise of the Negro to the status of so-called citizenship the court built upon this decision the prerogative of examining all judicial matters pertaining to the Federal Government until it made itself the sole arbiter in all important constitutional questions and became the bulwark of nationalism. After some reaction the court resumed that position in all of its decisions except those pertaining to the Negro; for in the recent commercial expansion of the country involving the litigation of unusually large property values, the United States Supreme Court has easily found grounds for jurisdiction where economic rights are concerned; but just as easily disclaims jurisdiction where human rights are involved in cases in which Negroes happen to be the complainants.
The fairminded man, the patriot of foresight, observes, therefore, with a feeling of disappointment this prostitution of an important department of the Federal Government to the use of the reactionary forces in the United States endeavoring to whittle away the essentials of the Constitution which guarantees to all persons in this country all the rights enjoyed under the most progressive democracy on earth. Since the Civil War the United States Supreme Court instead of performing the intended function of preserving the Constitution by democratic interpretation, has by its legislative decisions practically stricken therefrom so many of its liberal provisions and read into the Constitution so much caste and autocracy that discontent and radicalism have developed almost to the point of eruption.
C. G. Woodson
FOOTNOTES:
[1] McCulloch v. Maryland, 4 Wheaton, 416.
[2] Ibid., 416.
[3] Ibid., 416.
[4] Dred Scott v. Sanford, 19 Howard, 399.