fixing the basis of representation, by the provision that only three-fifths of all the slaves ("other persons") should be counted. There slavery was recognized as an existing fact, and yet the Constitution never sanctioned slavery, but, on the contrary, had it been carried out according to its true construction, slavery could not have existed under it; so that the recognition of facts in the Constitution must not be held to be a sanction of what is so recognized.
The majority of the committee say that this section implies that the States may deny suffrage to others than male citizens. If it implies anything it implies that the States may deny the franchise to all the citizens. It does not provide that they shall not deny the right to male citizens, but only provides that if they do so deny they shall not have representation for them. So, according to that argument, by the second section of the XIV. Amendment the power of the States is conceded to entirely take away the right of suffrage, even from that privileged class, the male citizens. And thus this rule of "implication" goes too far, and fritters away all the guarantees of the Constitution of the right of suffrage, the highest of the privileges of the citizen; and herein is demonstrated the reason and safety of the rule that fundamental rights are not to be taken away by implication, but only by express provision. When the advocates of a privileged class of citizens under the Constitution are driven to implication to sustain the theory of taxation without representation, and American citizenship without political liberty, the cause must be weak indeed.
It is claimed by the majority that by section 2, article 1, the Constitution recognizes the power in States to declare who shall and who shall not exercise the elective franchise. That section reads as follows:
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 requisite for electors of the most numerous branch of the State Legislature.
The first clause of this section declares who shall choose the Representatives—mark the language—"Representatives shall be chosen by the people of the States," not by the male people; not by certain classes of the people, but by the people; so that the construction sought to be given this section, by which it would recognize the power of the State to disfranchise one half the citizens, is in direct contravention of the first clause of the section, and of its whole spirit, as well as of the objects of the instrument. The States clearly have no power to nullify the express provisions that the election shall be by the people, by any laws limiting the election to a moiety of the people. It is true the section recognizes the power in the State to regulate the qualifications of the electors; but as we have already said, the power to regulate is a very different thing from the power to destroy. The two clauses must be taken together, and both considered in connection with the declared purpose and objects of the Constitution.
The constitution is necessarily confined to the statement of general principles. There are regulations necessary to be made as to the qualifications of voters, as to their proper age, their domicil, the length of residence necessary to entitle the citizen to vote in a given State or place. These particulars could not be provided in the Constitution but are necessarily left to the States, and this section is thus construed as to be in harmony with itself,