The civil rights cases 15 state to any persons of the equal protection of the laws is prohibited by the amendment, therefore congress may establish laws for their equal protection. . . . An inspection of the law shows that it makes no reference what- ever to any supposed or apprehended violation of the fourteenth amendment on the part of the states. It is not predicated on any such view. It proceeds ex directo to declare that certain acts committed by individuals7 shall be deemed offenses, and shall be prosecuted and punished by proceedings in the courts of the United States. It does not profess to be corrective of any constitutional wrong committed by the states it does not make its operation to depend upon any such wrong committed. It applies equally to cases arising in states which have the justest laws respecting the personal rights of citi- zens, and whose authorities are ever ready to enforce such laws as to those which arise in states that may have violated the prohibition of the amendment. In other words, it steps into the domain of local jurisprudence, and lays down rules for the conduct of individuals in society towards each other, and imposes sanctions for the enforce- ment of those rules, without referring in any manner to any sup- posed action of the state or its authorities. If this legislation is appropriate for enforcing the prohibitions of the amendment, it is difficult to see where it is to stop.8 Why may not congress, with equal show of authority, enact a code of laws for the enforcement and vindication of all rights of life, liberty, and prop- erty? If it is supposable that the states may deprive persons of life, liberty, and property without due process of law, (and the amend- ment itself does suppose this,) why should not congress proceed at once to prescribe due process of law for the protection of every one of these fundamental rights, in every possible case, as well as to pre- scribe equal privileges in inns, public conveyances, and theaters. The truth is that the implication of a power to legislate in this man- ner is based upon the assumption that if the states are forbidden to legislate or act in a particular way on a particular subject, and power is conferred upon congress to enforce the prohibition, this gives congress power to legislate generally upon that subject, and not merely power to provide modes of redress against such state legisla- tion or action. The assumption is certainly unsound. It is repugnant to the tenth amendment9 of the constitution, which declares that powers not delegated to the United States by the constitution, nor 7 Justice Bradley explains that the Civil Rights Act of 1875 does not address state invasion of rights but rather punishes “cer- tain acts committed by individuals.” In other words, the law addresses private invasions of rights, not state invasions of rights. 8 Justice Bradley in effect asks, if Congress has the power to pass this law imposing penalties on private persons, what will be the stopping point? He believes that the legislation is an example of overreaching by the Congress. 9 He supplements this point by referring to the Tenth Amendment of the U.S. Con- stitution, which reads: “The powers not delegated to the United States by the Con- stitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Justice Bradley implies that such legislation should come from the states, not the federal government.
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