iscomfitting his brethren on their own ground Harlan
said: "A prohibition upon a State is not a _power_ in _Congress or in
the national government_. It is simply a _denial_ of _power_ to the
State. The much talked of illustration of impairing the obligation of
contracts, therefore, is not an example of power expressly conferred
in contradistinction to that of this case and is not convincing for
this would be a court matter, not a matter of Congress. The Fourteenth
Amendment is the first case of conferring upon Congress affirmative
power by _legislation to enforce_ an express prohibition on the
States. Judicial power was not specified but the power of Congress.
The judicial power could have acted without such a clause. The
Fourteenth Amendment is not merely a prohibition on State action. It
made Negroes citizens of the United States and of the States. This is
decidedly affirmative. This citizenship may be protected not only by
the judicial branch of the government but by Congressional legislation
of a primary or direct character. It is in the power of Congress to
enforce the affirmative as well as the prohibitive provisions of this
article. The acceptance of any doctrine to the contrary," continued
Justice Harlan, "would lead to this anomalous result: that whereas
prior to the amendments, Congress with the sanction of this court
passed the most stringent laws--operating directly and primarily upon
States and their officers and agents, as well as upon individuals--in
vindication of slavery and the right of the master, it may not now, by
legislation of a like primary and direct character, guard, protect,
and secure the freedom established, and the most essential right of
the citizenship granted, by the constitutional amendments."

It did not seem to Justice Harlan that the fact that, by the second
clause of the first section of the Fourteenth Amendment, the States
are expressly prohibited from making or enforcing laws abridging the
rights and immunities of citizens of the United States, furnished any
sufficient reason for upholding or maintaining that the amendment was
intended to deny Congress the power, by general, primary, and direct
legislation, of protecting citizens of the several States, being also
citizens of the United States, against all discrimination, in respect
of their rights as citizens, which is founded on "race, color, or
previous condition of servitude." "Such an interpretation," thought
he, "is plainly r