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Amendment shows clearly that the term
"citizen" could not have been used in the sense of full
citizenship. This objection is the most serious one that the
argument encounters. That section, so far as relates to this
subject, is as follows:

When the right to vote is denied to any of the male
inhabitants of such State being twenty-one years of age and
citizens of the United States, the basis of representation
therein shall be reduced in the proportion which the number
of such male citizens shall bear to the whole number of male
citizens twenty-one years of age in such State.

The consideration of this section is perfectly legitimate in the
inquiry as to the meaning of the first section. It is said, with
great force, that here is an implied admission that the States
retained the power to exclude black men from the right to vote,
and it will be asked why, if that right is absolutely conferred
by the first section, and is one of the privileges and immunities
of citizens which no State may abridge, the amendment does not
boldly forbid any such State legislation, instead of merely
imposing certain limitations upon the State that should assume to
exercise such right of exclusion.

Two answers have been made by public writers on the subject which
are merely specious. One is, that if the second section be
construed as admitting the right of a State to exclude certain
classes of men from the franchise, yet it could not operate as an
admission of the right to exclude women. The fallacy here is,
that if the citizenship conferred by the first section does not
secure against all legislation the right of suffrage to men, it
does not secure it to women; the question being merely as to the
meaning of the term "citizen" as used, and not as to its
application to either sex, as such. The other answer that has
been made is, that this second section is repealed by the XV.
Amendment, which forbids the denial of suffrage in the cases
where this section seems to allow it; and it is asked, with
apparent confidence, whether a law that is repealed can have any
further operation whatever. The fallacy here is, that the
operation of this second section, so far as it relates to the
present question, is wholly in throwing light upon the meaning of
the term "citizen," as used in the first section, and this
operation is just as perfect after its repeal as before;
precisely as a part of a will that has been revoked by a codicil,
may yet be read with the rest of the will if it will throw light
upon the meaning of the whole.

It is believed, however, that a valid answer can be made to the
objection which is founded upon the second section, and that the
view here presented will be ultimately sustained by the legal
opinion of the country.

1. It is not a necessary inference that the right to exclude from
suffrage is admitted by the second section, for this section will
bear a construction that is consistent with the enlarged
construction which we give to the first section; and it is a
well-settled principle that a construction that favors the
extension of liberty is itself to be favored, and one which
restricts liberty is not to be adopted, except under a necessity.
This second section provides for a penalty, in the reduction of
its basis of representation, in every case where a State should
deny to any class of citizens the right of suffrage. Now, this is
not necessarily a concession of the right, but may be regarded as
a punishment of the attempt to exercise the so-called right. The
matter was practically so much within the power of the States
(and the States in view were the disorganized Southern States),
that it would be far easier for Congress to enforce the penalty
for denying the right of suffrage than for the President to
protect that right. It may be regarded as a case, well known to
the law, of cumulative remedies. It is precisely as if, in
addition to the express prohibition by the Constitution of the
making of war by any State, there had been a provision that if
any State should make war upon a foreign State, such State should
pay the entire expense in which the General Government should
become involved by the war. This clearly would be only a penalty
and not a concession of the right, the object being to increase
and not to diminish the security of the General Government
against any attempt of a State to do the act prohibited.

2. The first section of the XIV. Amendment is entirely senseless
and idle, except upon the construction which we claim. The term
"citizen" means either "voter" or merely "member of the nation,"
as distinguished from an alien. Judge Cartter, in his late
opinion in the case of Spencer _vs._ The Board of Registration,
in the Supreme Court of the District of Columbia, sees this
necessity, and that there is no intermediate status, and holds
that the term means merely a person clothed with the civil rights
of an inhabitant, as distinguished from an alien. Let it be borne
in mind, then, that those who deny the construction which we
claim, must make the word citizen mean merely "not an alien." Let
it also be borne in mind that by the XIII. Amendment, which
abolished slavery, every inhabitant of the land became a free
inhabitant, so that nothing is now added to the force of the term
"inhabitant" by prefixing to it the term "free." It follows,
therefore, that the XIV. Amendment, under the adverse
construction claimed, means only that the persons referred to in
it are _inhabitants of the land_. Let us see, then, how it will
read: "All persons born or naturalized in the United States are
inhabitants of the United States and the State wherein they
reside." This is sheer nonsense. In the construction of an
ordinary law, passed by a Legislature in the crowded moments of
its last hour, every Court would say that it must, if possible,
give the law a construction that will make it have a sensible
meaning and effect, and that of two constructions, one of which
gives it sense and purpose and the other none, the former is
without a question to be preferred. How much more should such a
rule be applied to an amendment of a national constitution,
deliberately adopted first by Congress and then by three-quarters
of the Legislatures of the States?

3. It is a universal rule in the construction of statutes that
the construction of an enabling or enlarging statute must be
liberal and in the direction of enlargement. This rule is
applicable with much greater force to the construction of this
amendment, because, in the first place, it is dealing with the
most fundamental of all political rights--that of _free
citizenship in a democracy_--and is besides an amendment of a
constitution, which _is itself the charter of freedom_, and the
amendment is made for the very purpose of giving _larger freedom_
than that free constitution originally gave. This rule alone is
enough to settle the question of the construction of this
amendment, especially as the question is between a construction
that shall make it an enlargement of liberty and a construction
that shall make it confer nothing that was not before possessed.

The whole question thus far has been considered with reference to
the XIV. Amendment alone. The XV. Amendment, though, as we think,
conferring no new rights, yet should be briefly noticed. That
amendment is as follows: "The right of citizens of the United
States to vote shall not be denied or abridged by the United
States or by any State on account of race, color, or previous
condition of servitude." Here it will be seen that the language,
in its natural meaning, implies a pre-existing _right to vote_.
It is not pertinent to the creation of a new right, but only to
the protection of a right already existing. It is like the case
occurring in some of the State constitutions, where it is
provided that the right of trial by jury shall not be denied or
impaired, in which case it has been held not to confer a new
right, but merely to protect, in its then existing form, a right
that was enjoyed when the constitution was adopted. This
construction of the XV. Amendment, however, though the natural
and obvious one, is not a necessary one, since, if there had been
no XIV. Amendment, the XV. would undoubtedly be held to create a
new right of suffrage. The argument, from the language used,
though not without very positive weight, can not be regarded as
decisive of the question, and the claim that women are entitled
to vote must rest essentially upon the construction of the XIV.
Amendment.

There is, however, an adverse claim that is made under the XV.
Amendment, which ought to be briefly considered. That claim is
that even if the XIV. Amendment gives the right to vote, yet the
XV., in prohibiting the denial of the right to vote on account of
race, color, or previous condition of servitude, impliedly
confers the right to prohibit it on all other grounds. Now, if it
has this effect, it does so merely by impliedly repealing that
clause of the XIV. Amendment which provides that the rights of
citizens shall not be abridged. But it is a well-established rule
of law that a repeal by implication is never favored, and will
not be sustained unless the implication is a clear and necessary
one. Much more would not such a repeal be sustained where the
clause claimed to be repealed was a part of a constitution, and
was intended as a security for human rights and liberty.



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