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Can that be
abridged which does not exist? The denial of the power to abridge
the right, recognizes the existence of the right. Is it said that
this right exists by virtue of State citizenship, and State laws
and Constitutions? Mark the language: "The right of citizens of
the United States to vote;" not citizens of States. The right is
recognized as existing independent of State citizenship.

But it may be said, if the States had no power to abridge the
right of suffrage, why the necessity of prohibiting them? There
may not have been a necessity; it may have been done through
caution, and because the peculiar condition of the colored
citizens at that time rendered it necessary to place their rights
beyond doubt or cavil.

It is laid down as a rule of construction by Judge Story that the
natural import of a single clause is not to be narrowed so as to
exclude implied powers resulting from its character simply
because there is another clause which enumerates certain powers
which might otherwise be deemed implied powers within its scope,
for in such cases we are not to assume that the affirmative
specification excludes all other implications. (2 Story on
Constitution, sec. 449.)

There are numerous instances in the Constitution where a general
power is given to Congress, and afterward a particular power
given, which was included in the former; yet the general power is
not to be narrowed, because the particular power is given. On
this same principle the fact that by the XV. Amendment the States
are specifically forbidden to deny the right of suffrage on
account of race, color, or previous condition of servitude, does
not narrow the general provision in the XIV. Amendment which
guarantees the privileges of all the citizens against abridgment
by the States on any account.

The rule of interpretation relied upon by the committee in their
construction of the XV. Amendment is, "that the expression of one
thing is the exclusion of another," or the specification of
particulars is the exclusion of generals. Of these maxims, Judge
Story says:

They are susceptible of being applied, and often are
ingeniously applied, to the subversion of the text and the
objects of the instrument. The truth is, in order to
ascertain how far an affirmative or negative provision
excludes or implies others, we must look to the nature of
the provision, the subject-matter, the objects, and the
scope of the instrument; these and these only can properly
determine the rule of construction (2 Story, 448).

It is claimed by the committee that the second section of the
XIV. Amendment implies that the several States may restrict the
right of suffrage as to other than male citizens. We may say of
this as we have said of the theory of the committee upon the
effect of the XV. Amendment. It is a proposal to take away from
the citizens guarantees of fundamental rights, by implication,
which have been previously given in absolute terms. The first
section includes "all citizens" in its guarantees, and includes
all the "privileges and immunities" of citizenship and guards
them against abridgment, and under no recognized or reasonable
rule of construction can it be claimed that by implication from
the provisions of the second section the States may not only
abridge but entirely destroy one of the highest privileges of the
citizen to one-half the citizens of the country. What we have
said in relation to the committee's construction of the effect of
the XV. Amendment applies equally to this. The object of the
first section of this amendment was to secure all the rights,
privileges, and immunities of all the citizens against invasion
by the States. The object of the second section was to fix a rule
or system of apportionment for Representatives and taxation; and
the provision referred to, in relation to the exclusion of males
from the right of suffrage, might be regarded as in the nature of
a penalty in case of denial of that right to that class. While
it, to a certain extent, protected that class of citizens, it
left the others where the previous provisions of the Constitution
placed them. To protect the colored man more fully than was done
by that penalty was the object of the XV. Amendment. In no event
can it be said to be more than the recognition of an existing
fact, that only the male citizens were, by the State laws,
allowed to vote, and that existing order of things was recognized
in the rule of representation, just as the institution of slavery
was recognized in the original Constitution, in the article
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, and with the expressed objects of the framers of
the Constitution and the principles of free government. When the
majority of the committee can demonstrate that "the people of the
States," and one-half the people of the States, are equivalent
terms, or that when the Constitution provides that the
Representatives shall be elected by the people, its requirements
are met by an election in which less than one-half the adult
people are allowed to vote, then it will be admitted that this
section to some extent sustains them.

The committee say, that if it had been intended that Congress
should prescribe the qualifications of electors, the grant would
have given Congress that power specifically. We do not claim that
Congress has that power; on the contrary, admit that the States
have it; but the section of the Constitution does prescribe who
the electors shall be. That is what we claim--nothing more. They
shall be "the people;" their qualifications may be regulated by
the States; but to the claim of the majority of the committee
that they may be "qualified" out of existence, we can not assent.

We are told that the acquiescence by the people, since the
adoption of the Constitution, in the denial of political rights
to women citizens, and the general understanding that such denial
was in conformity with the Constitution, should be taken to
settle the construction of that instrument.



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