Page:Harvard Law Review Volume 2.djvu/393

 LEGAL ASPECT OF THE SOUTHERN QUESTION, 375

such cases as these. Ought any different rule to be invoked in such extreme cases as South Carolina or Alabama, where an educational test like that in Massachusetts would reduce the voters about one-half ? It is difficult to say what view would prevail, since Congress, having the power to apportion representation among the States and to judge of the election and qualifications of its members, could construe the amendment as it pleased ; and such construction probably could in no way be revised by the Supreme Court. But we can judge somewhat how the Supreme Court would treat the matter, if it ever could be in issue there, from the interpretation given to analogous clauses of the Constitution. In section i of the XlVth Amendment, a State is forbidden to "deprive any person of life, liberty, or property without due process of law." With regard to property, "deprive" is con- strued to mean an actual taking away of some property right. The State may regulate the use of property, and not come within the prohibition.* In the same way the clause forbidding a State to impair the obligation of contracts* is interpreted that there must be an actual taking away of a contract right or of a sub- stantial remedy thereunder.^ A law which decreases the value of the contract right does not necessarily come within the clause. Perhaps a good way to express the rule is to say that it is a sub- traction of an integral part of the property or contract right which is prohibited. The best analogy of all, however, is found in the interpretation of the clause that no State shall pass an ex post facto law,* made in the "Test Oath Cases,"* which involved the consti- tutionality of statutes requiring a person to take an oath that he had always been loyal to the United States, as a qualification for holding office or pursuing certain callings. If the oath was in- tended as a prohibition from certain offices or professions, and designed to punish past offences, then it was within the clause for-

' G)mpare the cases where the police power has been exercised, even to the extent of practically depriving the owner of all, or nearly all, the benefits of ownership. Mugler v, Kansas^ 123 U. S. 623 (1882). See also the Oleomar^rine Cases. People v. Marx, 99 N. Y. 377 (1885) ; Powell v. Pa., 127 U. S. 678 (1887) ; Sute v, Addington, 12 Mo. App. (1882).


 * Const., Art. I., sec. 10,

I How. 31 1.
 * Fletcher v. Peck, 6 Cranch, 115; Calder v. Bull, 3 DalL 386; Bronson v. Kinzie,


 * Const., Art. I., sec. 10.

16 Wall. 234; Kring v. Mo., 107 U. S. 221; Murphy v. Ramsey, 114 U. S. 40-44-
 * Ex parte Garland, 4 Wall 333; Cummings v. Mo., 4 Wall. 277; Peerce v. Carskadon,