From the foregoing cases it appears that the clause of the Fourteenth Amendment which declares that "So State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," has not given to the General Government any legislative or even supervisory power which it did not possess before the Fourteenth Amendment was adopted.

In another important case it has been held that the last clause of the Amendment which empowers Congress to enforce its provisions by appropriate legislation, does not give to that body a direct legislative power to define and establish the rights of life, liberty, and property of which the individual may not be deprived by the States without due process of law, or to define and establish what shall constitute the equal protection of the laws which the States may not deny to persons within their jurisdiction.

In 1875, in pursuance of an authority which it conceived to be granted by the Fourteenth Amendment, Congress passed a so-called Civil Rights Act, fixing generally the penalties to which state officials should be subject for depriving any citizen of the United States of any of the rights secured him by the Thirteenth and Fourteenth Amendments, and declaring specifically that negroes should receive the same treatment at public inns, hotels, railways, theaters, etc., as that enjoyed by white persons. The importance of this act lay in the fact that by passing it Congress indicated that it interpreted the Fourteenth Amendment as giving it power not simply to punish persons who should deprive others of any of the rights mentioned in that Amendment, but as empowering itself to determine specifically what those rights should be. If this were to be accepted as the correct interpretation of the power of Congress under this Amendment, it was clear that the reserved powers of the States would henceforth be at the mercy of the federal legislative body; for thus the way would be opened to Congress, should it see fit, to convert by its statutes all private rights into federal rights and as such exclude them from state regulation or violation.

In the Civil Rights Cases,12 decided in 1883, the court laid down, authoritatively and finally, the doctrine that it is not within the legislative power of Congress to define what are the civil rights of individuals, and to affix and enforce penalties for their denial by private persons. Hence the court held unconstitutional and void those portions of the Civil Rights Act of 1875 which attempted to do this. "Individual invasion of individual rights," the court say, "is not the subject-matter of the Amendment. It has a deeper and broader scope. It nullifies and makes void all state legislation and state action of every kind, which impairs the privileges and immunities of citizens of the United States, or injures them in life, liberty, or property without due process of law, or which denies to them the equal protection of the laws. It not only does this, but in order that the national will, thus declared, may not be a mere brutum fulmen, the last section of the Amendment invests Congress with power to enforce it by appropriate legislation. To enforce what? To enforce the prohibition. . . . It does not authorize Congress to create a code of municipal law for the regulation of private rights; but to provide modes of redress against the operation of state laws, and the action of state officers, executive or judicial, when these are subversive of the fundamental rights specified in the Amendment." The importance of the doctrine declared in the Civil Eights Cases is seen when the results that would have followed from a different construction of the Amendment are considered. If the Civil Eights Act had been held appropriate for enforcing the prohibitions of that article it would have been, as the court observes, difficult to set limits to the powers of Congress. With equal authority, that body would have the right to enact a detailed code of laws for the enforcement and protection of all the rights of life, liberty, and property, and itself to prescribe what should constitute due process of law in every possible case.13

12 109 U. S. 3; 3 Sup. Ct. Rep. 18; 27 L. ed. 835.

It will have been noticed that the doctrine of the Civil Rights Cases depended in large measure upon the assertion that the prohibitions of the Fourteenth Amendment were directed exclusively against state acts, that is, acts authoritatively sanctioned by the States as such, or officially performed by their agents, and that they had not reference to the acts of private individuals. The doctrine had already been established in a line of cases decided prior to the Civil Eights Cases.

In Strauder v. West Virgina14 it was held that a state law which excluded negroes from jury service was unconstitutional as a denial to members of that race of the equal protection of the laws. In Virginia v. Rives15 the question was not as to the existence of a state law excluding negroes from jury service, but as to the administration of a law, not in terms discriminative, in such a way as to exclude negroes from juries. This suit was sought to be removed into the federal courts under the provision of section 641 of the Revised Statutes.16 "Without deciding whether or not Congress had, under the enforcement clause of the Fourteenth Amendment, the power to grant relief in cases such as that presented by the petitioner, the Supreme Court held that the suit was not within the terms of the statute.

13 As construed in the Civil Rights Cases it is to be noted that the federal legislative power granted by the Fourteenth Amendment is narrower than that granted by the enforcement clause of the Thirteenth Amendment. This distinction the court in its majority opinion in the Civil Rights Cases point cut in the following language: "This [Thirteenth] Amendment, as well as the Fourteenth, is undoubtedly self-executing without any ancillary legislation, so far as its terms are applicable to any existing state of circuinstam 15y its own unaided force and effect, it abolished slavery and established universal freedom. Still legislation may be necessary and proper to meet all the various cases and circumstances to be affected by it, and to prescribe proper modes of redress for its violation in letter or spirit. And such legislation may be primary and direct in its character; for the Amendment is not a mere prohibition of state laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States."