Page:Harvard Law Review Volume 2.djvu/378

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36o ff^J^ VARD LA W RE VIE W,

rights and National rights ought to be supreme within their re- spective limits, it was claimed that the former included the power to destroy the latter. This contention, first expressed in the Vir- ginia and Kentucky resolutions and in the nullification ordinances of South Carolina, became the right of secession in 1861. It was this impracticable phasfe of " State rights " which was put at rest by the war. The tendency has since been to define more and more exactly the true line of demarcation between State and National sovereignty.

New questions required such a line to be carefully drawn. Under the recently adopted amendments to the Constitution (the Xlllth. XlVth, andXVth) there was danger that the North, in its desire to wipe out the injustice of years, would go altogether too far ; while, on the other hand, it was likely that the South, if left to itself, would be slow to recognize that the days of slavery were over. The new regime gave to the negro civil and political rights equal to those of other citizens. By "political rights" is meant those which relate to the participation of the individual in the making of the laws. The term " civil rights properly includes all legal rights not political ; but with reference to discussions of the Southern question it has a much narrower meaning. What is meant seems to be those rights which affect the social status of the negro. Other civil rights, however fundamental, such as the right to acquire and hold property, the right to appear in court as witness or party, have occasioned little controversy.^

How far is the social condition of the negro under federal protection ? All persons have an equal right to the privileges of public schools. The XlVth Amendment forbids any State to "deny to any person within its jurisdiction the equal protection of the laws.** This clearly would prevent a State from excluding

1 The Civil Rights Act of April 9, 1866 (14 Stat, at Large, c 31) reenacted, wiui some modifications in the Enforcement Act of 1870 (§§ 16-19), declared that all per- sons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, to be parties, give evidence, and to the full and equal benefit of all laws and proceedings fo^ the security of persons and property, as is enjoyed by white citizens, and shall be subject to the same bur- dens and penalties, and none other ; and provides for the punishment of any person who, under color of any law, statute, ordinance, regulation, or custom, shall deprive any inhabitant of a State or Territory of such rights. It was also declared that *'all citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by the white citizens thereof, to inherit, purchase, lease, sell, hold, and convey real and personal property." See Rev. St., §§ 1977, 1978.