As has been before adverted to, most, if not all, of the Southern States in which the negro population is very considerable, have, by means of constitutional amendments or in constitutions newly adopted, secured in effect the almost total disfranchisement of their colored citizens. This, however, has been done, not by disfranchisement provisions expressly directed against the negroes, but by requiring all voters to be registered, and placing conditions upon registration which very few negroes are able to meet, or, at any rate, to satisfy the registration officers that they do meet them.

If the courts may freely go behind the terms of a constitutional clause to discover its intent, and to construe it by that intent, or if it may test its validity by its actual operation in practice, it would seem that a possible opportunity is afforded for holding void some at least of the disfranchising clauses of the constitutions of the Southern States. As yet, however, no case has been brought before the Supreme Court in which the court has consented to make this examination. As to the circumstances under which the court will consent to go back of the terms of a law, to determine its real intent and effect, two interesting cases are Yick Wo v. Hopkins32 and Williams v. Mississippi-33 In the former case the law or ordinance in question was held void in that it attempted to give to an administrative officer an arbitrary discretionary power, and also in that an actual arbitrary discriminating use of that authority was shown. In Williams v. Mississippi the court declined to hold void the state law in question, the law being upon its face not in violation of the equal protection clause of the Fourteenth Amendment, and no discrimination in fact being proved. In Yick Wo v. Hopkins the court say: "Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of justice is still within the prohibition of the Constitution." This doctrine, however, the court say in the Williams case is not applicable to the Constitution of Mississippi and its statutes. "They do not on their face discriminate between the races, and it has not been shown that their actual administration was evil, only that evil was possible under them."

30 190 U. S. 127; 23 Sup.Ct. Rep. 678; 47 L. ed. 970.

31 In this case it is also held that "an indictment which charges no discrimination on account of race, color or previous condition of servitude, is likewise destitute of support by such Amendment."

In Giles v. Harris,34 decided in 1903, a colored citizen of Alabama brought an action in a federal court against the registrars of his county to compel them to register him as a voter, claiming that the provisions of the Alabama Constitution upon which the registrars based their refusal to register him were in violation of the equal protection clause of the Fourteenth Amendment and of the prohibition of the Fifteenth Amendment. The Supreme Court, to which the case finally came for adjudication, refused the relief prayed, fraying: "The difficulties which we cannot overcome are two, and the first is this: The plaintiff alleges that the whole registration scheme of the Alabama Constitution is a fraud upon the Constitution of the United States, and asks us to declare it void. But, of course, he could not maintain a bill for a mere declaration in the air. He does not try to do so, but asks to be registered as a party qualified under the void instrument. If, then, we accept the conclusion which it is the chief purpose of the bill to maintain, how can we make the court a party to the unlawful scheme by accepting it and adding another voter to its fraudulent lists? If the sections of the Constitution concerning registration were illegal in their inception, it would be a new doctrine in constitutional law that the original invalidity could be cured by an administration which defeated their intent. The other difficulty is of a different sort, and strikingly reinforces the argument that equity cannot undertake now, any more than it has in the past, to enforce political rights, and also the suggestion that state constitutions were not left unmentioned in section 1979 by accident. In determining whether a court of equity can take jurisdiction, one of the first questions is what it can do to enforce any order that it may make. This is alleged to be the conspiracy of a State, although the State is not and could not be made a party to the bill. (Hans v. Louisiana, 134 U. S. 1; 10 Sup. Ct. Rep. 501; 33 L. ed. 842) The circuit court has no constitutional power to control its action by any direct means. And if we leave the State out of consideration, the court has as little practical power to deal with the people of the State in a body. The bill imports that the great mass of the white population intends to keep the blacks iron voting. To meet such an intent something more than ordering the plaintiffs name to be inscribed upon the lists of 1902 will be needed. If the conspiracy and intent exist, a name on a piece of paper will not defeat them. Unless we are prepared to supervise the voting in that State by officers of the court, it seems to us that all that the plaintiff could get from equity would be an empty form. Apart from damages to the individual, relief from a great political wrong, if done, as alleged, by the people of a State and the State itself, must be given by them or by the legislative and political department of the government of the United States." 35

32 118 U. S. 356; 6 Sup. Ct. Rep. 1064; 30 L. ed. 220. 33 170 U. S. 213; 18 Sup. Ct. Rep. 583; 42 L. erf. 1012. 34 180 U. S. 475; 23 Sup. Ct. Rep. 630: 47 L. ed. 909.

In Giles v. Teasley,36 which was an action brought to recover damages against the board of registrars for refusing to register the plaintiff as a qualified elector of the State. The Supreme Court of Alabama held that if the provisions of the state constitution were repugnant to the Fifteenth Amendment they were void and the board of registrars appointed thereunder had no legal existence and had no power to act and would not be liable for a refusal to register the plaintiff; while on the other hand, if the provisions were constitutional the registrars acted properly thereunder and their action was not reviewable by the courts. The Supreme Court of the United States held that the Alabama court had not decided any federal question adversely to the plaintiff, and, therefore, that the Supreme Court had no jurisdiction to review the decision of the state court.

In Jones v. Montague,37 decided in 1904, the court declined to review the dismissal of a petition for a writ of prohibition to prevent the canvass of the votes cast at a congressional election (upon claim that the petitioners had, in violation of the federal Constitution, been denied registration) for the reason that the canvass had in fact been already made, and certificates of election issued to persons who had been recognized by the House of Representatives as members thereof. The court thus, in any event, not being able to provide any relief, the case became merely a moot one, and as such was dismissed.

In the light of the foregoing unsuccessful attempts to obtain from the Supreme Court relief from the operation of the disfranchising clauses of the state constitutions we have been considering, the question may properly be asked whether it is constitutionally possible for the Congress to provide by legislation means by which the constitutionality of these clauses may be fairly passed upon by the courts and the appropriate relief given. It would seem that much might be done. As regards congressional elections, Congress has, as we have seen, plenary powers of control, and could take complete charge of both the elections and the registration of the voters. In such case the federal registrars might refuse to register white voters under clauses of the state laws which they might hold to be in violation of the federal Constitution, and the voters so refused registration would have to seek redress in the federal courts and set up the validity of these state laws. As regards state elections Congress might enact laws giving to federal courts jurisdiction of actions brought against state registrations or election officials who, in violation of federal constitutional rights, have refused registration or opportunity to vote to legally-qualified .persons.

35 Justices Harlan, Brewer, and Brown dissented.

36 193 U. S. 146; 24 Sup. Ct. Rep. 350; 48 L. ed. 655.

37 194 U. S. 147; 24 Sup. Ct. Rep. 611; 48 L. ed. 913.

Whether or not such legislation, the possibility of which is above suggested, would be wise is a question by itself. Whether, if wise, it could be efficiently enforced in communities where it would meet strong and united popular opposition is another question. "In the last analysis obedience not voluntarily given must, for the most part, be compelled by force applied through the instrumentality of criminal prosecutions. In the face of the united and passionate opposition of the white people of the South, such prosecutions in the past have failed to accomplish any permanently useful results. It is probable that convictions would be difficult to obtain even where the offense was flagrant and the guilt of the defendants clear." 38