on of the members of
Congress, by which the court, according to a well established
principle of interpretation, should have been influenced in construing
the statute in question.

The court held that legislation for the enforcement of the Thirteenth
Amendment is direct and primary "but to what specific ends may it be
directed?" inquired Justice Harlan. The court "had uniformly held that
national government has the power, whether expressly given or not, to
secure and protect rights conferred or guaranteed by the
Constitution."[23] Justice Harlan believed then that the doctrines
should not be abandoned when the inquiry was not as to an implied
power to protect the master's rights, but what Congress might, under
powers expressly granted, do for the protection of freedom and the
rights necessarily inhering in a state of freedom.

The Thirteenth Amendment, the court conceded, did more than prohibit
slavery as an _institution_, resting upon distinctions of race, and
upheld by positive law. The court admitted that it "established and
decreed universal civil freedom throughout the United States." "But
did the freedom thus established," inquired Justice Harlan, "involve
more than exemption from actual slavery? Was nothing more intended
than to forbid one man from owning another as property? Was it the
purpose of the nation simply to destroy the institution and then remit
the race, theretofore held in bondage, to the several States for such
protection, in their civil rights, necessarily growing out of their
freedom, as those States in their discretion might choose to provide?
Were the States against whose protest the institution was destroyed to
be left free, so far as national interference was concerned, to make
or allow discriminations against that race, as such, in the enjoyment
of those fundamental rights which by universal concession, inhere in a
state of freedom?" Justice Harlan considered it indisputable that
Congress in having power to abolish slavery could destroy the burdens
and disabilities remaining as its badges and incidents which
constitute its substance in visible form.

The court in its defense had taken as an illustration that the
negative clause of the Fourteenth Amendment was not direct and
primary, that although the States are prohibited from passing laws to
impair the obligations of contracts this did not mean that Congress
could legislate for the general enforcement of contracts throughout
the States. D