Congress Debates the Fourteenth Amendment (1866)

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Lincoln's Emancipation Proclamation abolished the institution of slavery, but as Reconstruction began it became apparent that legal measures needed to be taken in order to protect the rights of freedmen. With President Andrew Johnson proving hostile to any legislation designed to ensure protection and equality for freedmen, the Republican majority in Congress decided to pass a constitutional amendment that would grant citizenship to African Americans while, in theory, shielding them from discriminatory state laws. An amendment to the Constitution would not be in jeopardy of repeal, like the Civil Rights Act, and it would be beyond the reach of presidential veto power.

The debate over the Fourteenth Amendment in congress, however, raged over states' rights issues and the meaning of citizenship and equal protection under the law. In a series of alterations and compromises, any extension of suffrage to freedman was dropped from the amendment. As the daunting project of reconstructing the union lay before them, the Republican Party needed a common ground on which to unite while demonstrating strong federal action to protect freedmen's rights. Unfortunately the common ground and compromise created a thoroughly ambiguous amendment, leading to many subsequent legal debates over what the original intent of universalist language such as "equal protection of the laws" really meant.

The following excerpts from the congressional debates over the Fourteenth Amendment cover the draft proposed by John A. Bingham of Ohio, which was tabled in early March 1866, and the May debates over numerous drafts and proposals. Final approval of the amendment in the House came on 13 June, compelling Pennsylvania Senator Thaddeus Stevens to remark: "Do you inquire why I accept so imperfect a proposition? I answer, because I live among men and not among angels."

Paul S.Bartels,
Villanova University

See also Constitution of the United States ; Due Process of Law ; Equal Protection of the Law ; State Sovereignty .

February 27, 1866

mr. hale. What is the effect of the amendment which the committee on reconstruction propose for the sanction of this House and the States of the Union? I submit that it is in effect a provision under which all State legislation, in its codes of civil and criminal jurisprudence and procedure, affecting the individual citizen, may be overridden, may be repealed or abolished, and the law of Congress established instead. I maintain that in this respect it is an utter departure from every principle ever dreamed of by the men who framed our Constitution.

mr. stevens. Does the gentleman mean to say that, under this provision, Congress could interfere in any case where the legislation of a State was equal, impartial to all? Or is it not simply to provide that, where any State makes a distinction in the same law between different classes of individuals, Congress shall have power to correct such discrimination and inequality? Does this proposition mean anything more than that?

mr. hale. I will answer the gentleman. In my judgment it does go much further than the remarks of the gentleman would imply: but even if it goes no further than that—and I will discuss this point more fully before I conclude—it is still open to the same objection, that it proposes an entire departure from the theory of the Federal Government in meddling with these matters of State jurisdiction at all.

Now, I say to the gentleman from Pennsylvania [Mr. Stevens] that reading the language in its grammatical and legal construction it is a grant of the fullest and most ample power to Congress to make all laws "necessary and proper to secure to all persons in the several States protection in the rights of life, liberty, and property," with the simple proviso that such protection shall be equal. It is not a mere provision that when the States undertake to give protection which is unequal Congress may equalize it: it is a grant of power in general terms—a grant of the right to legislate for the protection of life, liberty and property, simply qualified with the condition that it shall be equal legislation. That is my construction of the proposition as it stands here. It may differ from that of other gentlemen.

mr. eldridge. Mr. Speaker, let me go a little further here. If it be true that the construction of this amendment, which I understand to be claimed by the gentlemen from Ohio, [Mr. Bingham] who introduced it, and which I infer from his question is claimed by the gentleman from Pennsylvania. [Mr. Stevens:] if it be true that that is the true construction of this article, is it not even then introducing a power never before intended to be conferred upon Congress. For we all know it is true that probably every State in this Union fails to give equal protection to all persons within its borders in the rights of life, liberty, and property. It may be a fault in the States that they do not do it. A reformation may be desirable, but by the doctrines of the school of politics in which I have been brought up, and which I have been taught to regard was the best school of political rights and duties in this Union, reforms of this character should come from the States, and not be forced upon them by the centralized power of the Federal Government.

Take a single case by way of illustration, and I take it simply to illustrate the point, without expressing any opinion whatever on the desirability or undesirability of a change in regard to it. Take the case of the rights of married women: did any one ever assume that Congress was to be invested with the power to legislate on that subject, and to say that married women, in regard to their rights of property, should stand on the same footing with men and unmarried women? There is not a State in the Union where disability of married women in relation to the rights of property does not to a greater or less extent still exist. Many of the States have taken steps for the partial abolition of that distinction in years past, some to a greater extent and others to a less. But I apprehend there is not to-day a State in the Union where there is not a distinction between the rights of married women, as to property, and the rights of femmes sole and men.

mr. stevens. If I do not interrupt the gentleman I will say a word. When a distinction is made between two married people or two femmes sole, then it is unequal legislation: but where all of the same class are dealt with in the same way then there is no pretense of inequality.

mr. hale. The gentleman will pardon me: his argument seems to me to be more specious than sound. The language of the section under consideration gives to all persons equal protection. Now, if that means you shall extend to one married woman the same protection you extend to another, and not the same you extend to unmarried women or men, then by parity of reasoning it will be sufficient if you extend to one negro the same rights you do to another, but not those you extend to a white man. I think, if the gentleman from Pennsylvania claims that the resolution only intends that all of a certain class shall have equal protection, such class legislation may certainly as easily satisfy the requirements of this resolution in the case of the negro as in the case of the married woman. The line of distinction is, I take it, quite as broadly marked between negroes and white men as between married and unmarried women.

mr. hale. It is claimed that this constitutional amendment is aimed simply and purely toward the protection of "American citizens of African descent" in the States lately in rebellion. I understand that to be the whole intended practical effect of the amendment.

mr. bingham. It is due to the committee that I should say that it is proposed as well to protect the thousands and tens of thousands and hundreds of thousands of loyal white citizens of the United States whose property, by State legislation, has been wrested from them under confiscation, and protect them also against banishment.

mr. hale. I trust that when the gentlemen comes to reply, he will give me as much of his time as he takes of mine. As he has the reply. I do not think he ought to interject his remarks into my speech. I will modify my statement and say that this amendment is intended to apply solely to the eleven States lately in rebellion, so far as any practical benefit to be derived from it is concerned. The gentleman from Ohio can correct me if I am again in error.

mr. bingham. It is to apply to other States also that have in their constitutions and laws to-day provisions in direct violation of every principle of our Constitution.

mr. rogers. I suppose this gentleman refers to the State of Indiana!

mr. bingham. I do not know: it may be so. It applies unquestionably to the State of Oregon.

mr. hale. Then I will again modify my correction and say that it is intended to apply to every State which, in the judgment of the honorable member who introduced this measure, has failed to provide equal protection to life, liberty, and property. And here we come to the very thing for which I denounce this proposition, that it takes away from these States the right to determine for themselves what their institutions shall be.

February 28, 1866

mr. bingham. Excuse me. Mr. Speaker, we have had some most extraordinary arguments against the adoption of the proposed amendment.

But, say the gentleman, if you adopt this amendment you give to Congress the power to enforce all the rights of married women in the several States. I beg the gentleman's pardon. He need not be alarmed at the condition of married women. Those rights which are universal and independent of all local State legislation belong, by the gift of God, to every woman, whether married or single. The rights of life and liberty are theirs whatever States may enact. But the gentleman's concern is as to the right of property in married women.

Although this word property has been in your bill of rights from the year 1789 until this hour, who ever heard it intimated that anybody could have property protected in any State until he owned or acquired property there according to its local law or according to the law of some other State which he may have carried thither? I undertake to say no one. As to real estate, every one knows that its acquisition and transmission under every interpretation ever given to the word property, as used in the Constitution of the country, are dependent exclusively upon the local law of the States, save under a direct grant of the United States. But suppose any person has acquired property not contrary to the laws of the State, but in accordance with its law, are they not to be equally protected in the enjoyment of it, or are they to be denied all protection? That is the question, and the whole question, so far as that part of the case is concerned.

Mr. Speaker. I speak in behalf of this amendment in no party spirit, in no spirit of resentment toward any State or the people of any State, in no spirit of innovation, but for the sake of a violated Constitution and a wronged and wounded country whose heart is now smitten with a strange, great sorrow. I urge the amendment for the enforcement of these essential provisions of your Constitution, divine in their justice, sublime in their humanity, which declare that all men are equal in the rights of life and liberty before the majesty of American law.

Representatives, to you I appeal, that hereafter, by your act and the approval of the loyal people of this country, every man in every State of the Union, in accordance with the written words of your Constitution, may, by the national law, be secured in the equal protection of his personal rights. Your Constitution provides that no man, no matter what his color, no matter beneath what sky he may have been born, no matter in what disastrous conflict or by what tyrannical hand his liberty may have been cloven down, no matter how poor, no matter how friendless, no matter how ignorant, shall be deprived of life or liberty or property without due process of law—law in its highest sense, that law which is the perfection of human reason, and which is impartial, equal, exact justice; that justice which requires that every man shall have his right: that justice which is the highest duty of nations as it is the imperishable attribute of the God of nations.

mr. hale. Before the gentleman takes his seat will he allow me to ask a single question pertinent to this subject?

mr. bingham. Yes sir.

mr. hale. I desire after hearing the gentleman's argument, in which I have been much interested as a very calm, lucid, and logical vindication of the amendment, to ask him, as an able constitutional lawyer, which he has proved himself to be, whether in his opinion this proposed amendment to the Constitution does not confer upon Congress a general power of legislation for the purpose of securing to all persons in the several States protection of life, liberty, and property, subject only to the qualification that that protection shall be equal.

mr. bingham. I believe it does in regard to life and liberty and property as I have heretofore stated it: the right to real estate being dependent on the State law except when granted by the United States.

mr. hale. Excuse me. If I understand the gentleman, he now answers that it does confer a general power to legislate on the subject in regard to life and liberty, but not in regard to real estate. I desire to know if he means to imply that it extends to personal estate.

mr. bingham. Undoubtedly it is true. Let the gentleman look to the great Mississippi case, Slaughter and another, which is familiar doubtless, to all the members of the House, and he will find that under the Constitution the personal property of a citizen follows its owner, and is entitled to be protected in the State into which he goes.

mr. hale. The gentleman misapprehends my point, or else I misapprehend his answer. My question was whether this provision, if adopted, confers upon Congress general powers of legislation in regard to the protection of life, liberty, and personal property.

mr. bingham. It certainly does this: it confers upon Congress power to see to it that the protection given by the laws of the United States shall be equal in respect to life and liberty and property to all persons.

mr. hale. Then will the gentleman point me to that clause or part of this resolution which contains the doctrine he here announces?

mr. bingham. The words "equal protection" contain it, and nothing else.

May 8, 1866

mr. stevens. Let us now refer to the provisions of the proposed amendment. The first section prohibits the States from abridging the privileges and immunities of citizens of the United States, or unlawfully depriving them of life, liberty, or property, or of denying to any person within their jurisdiction the "equal" protection of the laws.

I can hardly believe that any person can be found who will not admit that every one of these provisions is just. They are all asserted, in some form or other, in our DECLARATION or organic law. But the Constitution limits only the action of Congress, and is not a limitation on the States. This amendment supplies that defect, and allows Congress to correct the unjust legislation of the States, so far that the law which operates upon one man shall operate equally upon all. Whatever law punishes a white man for a crime shall punish the black man precisely in the same way and to the same degree. Whatever law protects the white man shall afford "equal" protection to the black man. Whatever means of redress is afforded to one shall be afforded to all. Whatever law allows the white man to testify in court shall allow the man of color to do the same. These are great advantages over their present codes. Now different degrees of punishment are inflicted, not on account of the magnitude of the crime, but according to the color of the skin. Now color disqualifies a man from testifying in courts, or being tried in the same way as white men. I need not enumerate these partial and oppressive laws. Unless the Constitution should restrain them those States will all, I fear, keep up this discrimination, and crush to death the hated freedmen. Some answer, "Your civil rights bill secures the same things." That is party true, but a law is repealable by a majority. And I need hardly say that the first time that the South with their copperhead allies obtain the command of Congress it will be repealed. The veto of the President and their votes on the bill are conclusive evidence of that.

mr. garfield. Sir. I believe that the right to vote, if it be not indeed one of the natural rights of all men, is so necessary to the protection of their natural rights as to be indispensable, and therefore equal to natural rights. I believe that the golden sentence of John Stuart Mill, in one of his greatest works, ought to be written on the constitution of every State, and on the Constitution of the United States as the greatest and most precious of truths. "That the ballot is put into the hands of men, not so much to enable them to govern others as that he may not be misgoverned by others." I believe that suffrage is the shield, the sword, the spear, and all the panoply that best befits a man for his own defense in the great social organism to which he belongs. And I profoundly regret that we have not been enabled to write it and engrave it upon our institutions, and imbed it in the imperishable bulwarks of the Constitution as a part of the fundamental law of the land. But I am willing, as I said once before in this presence, when I cannot get all I wish to take what I can get. And therefore I am willing to accept the propositions that the committee have laid before us, though I desire one amendment which I will mention presently.

I am glad to see this first section here which proposes to hold over every American citizen, without regard to color, the protecting shield of law. The gentleman who has just taken his seat [Mr. Finck] undertakes to show that because we propose to vote for this section we therefore acknowledge that the civil rights bill was unconstitutional. He was anticipated in that objection by the gentleman from Pennsylvania [Mr. Stevens]. The civil rights bill is now a part of the law of the land. But every gentleman knows it will cease to be a part of the law whenever the sad moment arrives when that gentleman's party comes into power. It is precisely for that reason that we propose to lift that great and good law above the reach of political strife, beyond the reach of the plots and machinations of any party, and fix it in the serene sky, in the eternal firmament of the Constitution, where no storm of passion can shake it and no cloud can obscure it. For this reason, and not because I believe the civil rights bill unconstitutional, I am glad to see that first section here.

mr. thayer. With regard to the second section of the proposed amendment to the Constitution, it simply brings into the Constitution what is found in the bill of rights of every State of the Union. As I understand it, it is but incorporating in the Constitution of the United States the principle of the civil rights bill which has lately become a law, and that, not as the gentleman from Ohio [Mr, Finck] suggested, because in the estimation of this House that law cannot be sustained as constitutional, but in order, as was justly said by the gentleman from Ohio who last addressed the House [Mr. Garfield.] that that provision so necessary for the equal administration of the law, so just in its operation, so necessary for the protection of the fundamental rights of citizenship, shall be forever incorporated in the Constitution of the United States. But, sir, that subject has already been fully discussed. I have upon another occasion expressed my views upon it, and I do not propose to detain the House with any further remarks of my own upon it.

May 10, 1866

mr. bingham. The necessity for the first section of this amendment to the Constitution, Mr. Speaker, is one of the lessons that have been taught to your committee and taught to all the people of this country by the history of the past four years of terrific conflict—that history in which God is, and in which He teaches the profoundest lessons to men and nations. There was a want hitherto, and there remains a want now, in the Constitution of our country, which the proposed amendment will supply. What is that? It is the power in the people, the whole people of the United States, by express authority of the Constitution to do that by congressional enactment which hitherto they have not had the power to do, and have never even attempted to do; that is, to protect by national law the privileges and immunities of all the citizens of the Republic and the inborn rights of every person within its jurisdiction whenever the same shall be abridged or denied by the unconstitutional acts of any State.

Allow me, Mr. Speaker, in passing, to say that this amendment takes from no State any right that ever pertained to it. No State ever had the right, under the forms of law or otherwise, to deny to any freeman the equal protection of the laws or to abridge the privileges or immunities of any citizen of the Republic, although many of them have assumed and exercised the power, and that without remedy. The amendment does not give, as the second section shows, the power to Congress of regulating suffrage in the several States.

The second section excludes the conclusion that by the first section suffrage is subjected to congressional law: save, indeed, with this exception, that as the right in the people of each State to a republican government and to choose their Representatives in Congress is of the guarantees of the Constitution, by this amendment a remedy might be given directly for a case supposed by Madison, where treason might change a State government from a republican to a despotic government, and thereby deny suffrage to the people. Why should any American citizen object to that? But, sir, it has been suggested, not here, but elsewhere, if this section does not confer suffrage the need of it is not perceived. To all such I beg leave again to say, that many instances of State injustice and oppression have already occurred in the State legislation of this Union, of flagrant violations of the guaranteed privileges of citizens of the United States, for which the national Government furnished and could furnish by law no remedy whatever. Contrary to the express letter of your Constitution, "cruel and unusual punishments" have been inflicted under State laws within this Union upon citizens, not only for crimes committed, but for sacred duty done, for which and against which the Government of the United States had provided no remedy and could provide none.

Sir, the words of the Constitution that "the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States" include, among other privileges, the right to bear true allegiance to the Constitution and laws of the United States, and to be protected in life, liberty, and property. Next, sir, to the allegiance which we all owe to God our Creator, is the allegiance which we owe to our common country.

The time was in our history, thirty-three years ago, when, in the State of South Carolina, by solemn ordinance adopted in a convention held under the authority of State law, it was ordained, as a part of the fundamental law of that State, that the citizens of South Carolina, being citizens of the United States as well, should abjure their allegiance to every other government or authority than that of the State of South Carolina.

That ordinance contained these words:

"The allegiance of the citizens of this State is due to the State: and no allegiance is due from them to any other Power or authority: and the General Assembly of said State is hereby empowered from time to time, when they may deem it proper, to provide for the administration to the citizens and officers of the State, or such of the said officers, as they may think fit, of suitable oaths or affirmations, binding them to the observance of such allegiance, and abjuring all other allegiance; and also to define what shall amount to a violation of their allegiance, and to provide the proper punishment for such violation."

There was also, as gentlemen know, an attempt made at the same time by that State to nullify the revenue laws of the United States. What was the legislation of Congress in that day to meet this usurpation of authority by that State, violative alike of the rights of the national Government and of the rights of the citizen?

In that hour of danger and trial to the country there was as able a body of men in this Capitol as was ever convened in Washington, and of these were Webster, Clay, Benton, Silas Wright, John Quincy Adams, and Edward Livingston. They provided a remedy by law for the invasion of the rights of the Federal Government and for the protection of its officials and those assisting them in executing the revenue laws. (See 4 Statutes-at-Large, 632–33.) No remedy was provided to protect the citizen. Why was the act to provide for the collection of the revenue passed, and to protect all acting under it, and no protection given to secure the citizen against punishment for fidelity to his country? But one answer can be given. There was in the Constitution of the United States an express grant of power to the Federal Congress to lay and collect duties and imposts and to pass all laws necessary to carry that grant of power into execution. But, sir, that body of great and patriotic men looked in vain for any grant of power in the Constitution by which to give protection to the citizens of the United States resident in South Carolina against the infamous provision of the ordinance which required them to abjure the allegiance which they owed their country. It was an opprobrium to the Republic that for fidelity to the United States they could not by national law be protected against the degrading punishment inflicted on slaves and felons by State law. That great want of the citizen and stranger, protection by national law from unconstitutional State enactments, is supplied by the first section of this amendment. That is the extent that it hath, no more; and let gentlemen answer to God and their country who oppose its incorporation into the organic law of the land.

May 23, 1866

mr. howard. The first clause of this section relates to the privileges and immunities of citizens of the United States as such, and as distinguished from all other persons not citizens of the United States.

It would be a curious question to solve what are the privileges and immunities of citizens of each of the States in the several States. I do not propose to go at any length into that question at this time. It would be a somewhat barren discussion. But it is certain the clause was inserted in the Constitution for some good purpose. It has in view some results beneficial to the citizens of the several States, or it would not be found there; yet I am not aware that the Supreme Court have ever undertaken to define either the nature or extent of the privileges and immunities thus guaranteed. Indeed, if my recollection serves me, that court, on a certain occasion not many years since, when this question seemed to present itself to them, very modestly declined to go into a definition of them, leaving questions arising under the clause to be discussed and adjudicated when they should happen practically to arise. But we may gather some intimation of what probably will be the opinion of the judiciary by referring to a case adjudged many years ago in one of the circuit courts of the United States by Judge Washington: and I will trouble the Senate but for a moment by reading what that very learned and excellent judge says about these privileges and immunities of the citizens of each State in the several States. It is the case of Corfield v. Coryell.

Such is the character of the privileges and immunities spoken of in the second section of the fourth article of the Constitution. To these privileges and immunities, whatever they may be—for they are not and cannot be fully defined in their entire extent and precise nature—to these should be added the personal rights guaranteed and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and to bear arms; the right to be exempted from the quartering of soldiers in a house without the consent of the owner; the right to be exempt from unreasonable searches and seizures, and from any search or seizure except by virtue of a warrant issued upon a formal oath or affidavit: the right of an accused person to be informed of the nature of the accusation against him, and his right to be tried by an impartial jury of the vicinage; and also the right to be secure against excessive bail and against cruel and unusual punishments.

Now, sir, here is a mass of privileges, immunities, and rights, some of them secured by the second section of the fourth article of the Constitution, which I have recited, some by the first eight amendments of the Constitution; and it is a fact well worthy of attention that the course of decision of our courts and the present settled doctrine is, that all these immunities, privileges, rights, thus guaranteed by the Constitution or recognized by it, are secured to the citizen solely as a citizen of the United States and as a party in their courts. They do not operate in the slightest degree as a restraint or prohibition upon State legislation. States are not affected by them, and it has been repeatedly held that the restriction contained in the Constitution against the taking of private property for public use without just compensation is not a restriction upon State legislation, but applies only to the legislation of Congress.

Now, sir, there is no power given in the Constitution to enforce and to carry out any of these guarantees. They are not powers granted by the Constitution to Congress, and of course do not come within the sweeping clause of the Constitution authorizing Congress to pass all laws necessary and proper for carrying out the foregoing or granted powers, but they stand simply as a bill of rights in the Constitution, without power on the part of Congress to give them full effect; while at the same time the States are not restrained from violating the principles embraced in them except by their own local constitutions, which may be altered from year to year. The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees. How will it be done under the present amendment? As I have remarked, they are not powers granted to Congress, and therefore it is necessary, if they are to be effectuated and enforced, as they assuredly ought to be, that additional power should be given to Congress to that end. This is done by the fifth section of this amendment, which declares that "the Congress shall have power to enforce by appropriate legislation the provisions of this article." Here is a direct affirmative delegation of power to Congress to carry out all the principles of all these guarantees, a power not found in the Constitution.

The last two clauses of the first section of the amendment disable a State from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the State. This abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another. It prohibits the hanging of a black man for a crime for which the white man is not to be hanged. It protects the black man in his fundamental rights as a citizen with the same shield which it throws over the white man. Is it not time, Mr. President, that we extend to the black man, I had almost called it the poor privilege of the equal protection of the law? Ought not the time to be now passed when one measure of justice is to be meted out to a member of one caste while another and a different measure is meted out to the member of another caste, both castes being alike citizens of the United States, both bound to obey the same laws, to sustain the burdens of the same Government, and both equally responsible to justice and to God for the deeds done in the body?

But, sir, the first section of the proposed amendment does not give to either of these classes the right of voting. The right of suffrage is not, in law, one of the privileges or immunities thus secured by the Constitution. It is merely the creature of law. It has always been regarded in this country as the result of positive local law, not regarded as one of those fundamental rights lying at the basis of all society and without which a people cannot exist except as slaves, subject to a despotism.

As I have already remarked, section one is a restriction upon the States, and does not, of itself, confer any power upon Congress. The power which Congress has, under this amendment, is derived, not from that section, but from the fifth section, which gives it authority to pass laws which are appropriate to the attainment of the great object of the amendment. I look upon the first section, taken in connection with the fifth, as very important. It will, if adopted by the States, forever disable every one of them from passing laws trenching upon those fundamental rights and privileges which pertain to citizens of the United States, and to all persons who may happen to be within their jurisdiction. It establishes equality before the law, and it gives to the humblest, the poorest, the most despised of the race the same rights and the same protection before the law as it gives to the most powerful, the most wealthy, or the most haughty. That, sir, is republican government, as I understand it, and the only one which can claim the praise of a just Government. Without this principle of equal justice to all men and equal protection under the shield of the law, there is no republican government and none that is really worth maintaining.

May 30, 1866

mr. doolittle. As I understand, a member from Ohio, Mr. Bingham, who in a very able speech in the House maintained that the civil rights bill was without any authority in the Constitution, brought forward a proposition in the House of Representatives to amend the Constitution so as to enable Congress to declare the civil rights of all persons, and that the constitutional amendment, Mr. Bingham being himself one of the committee of fifteen, was referred by the House to that committee, and from the committee it has been reported. I say I have a right to infer that it was because Mr. Bingham and others of the House of Representatives and other persons upon the committee had doubts, at least, as to the constitutionality of the civil rights bill that this proposition to amend the Constitution now appears to give it validity and force. It is not an imputation upon any one.

mr. grimes. It is an imputation upon every member who voted for the bill, the inference being legitimate and logical that they violated their oaths and knew they did so when they voted for the civil rights bill.

mr. doolittle. The Senator goes too far. What I say is that they had doubts.

mr. fessenden. I will say to the Senator one thing: whatever may have been Mr. Bingham's motives in bringing it forward, he brought it forward some time before the civil rights bill was considered at all and had it referred to the committee, and it was discussed in the committee long before the civil rights bill was passed. Then I will say to him further, that during all the discussion in the committee that I heard nothing was ever said about the civil rights bill in connection with that. It was placed on entirely different grounds.

mr. doolittle. I will ask the Senator from Maine this question: if Congress, under the Constitution now has the power to declare that "all persons born in the United States, and not subject to any foreign Power, excluding Indians not taxed, are hereby declared to be citizens of the United States," what is the necessity of amending the Constitution at all on this subject?

mr. fessenden. I do not choose that the Senator shall get off from the issue he presented. I meet him right there on the first issue. If he wants my opinion upon other questions, he can ask it afterward. He was saying that the committee of fifteen brought this proposition forward for a specific object.

mr. doolittle. I said the committee of fifteen brought it forward because they had doubts as to the constitutional power of Congress to pass the civil rights bill.

mr. fessenden. Exactly: and I say, in reply, that if they had doubts, no such doubts were stated in the committee of fifteen, and the matter was not put on that ground at all. There was no question raised about the civil rights bill.

mr. doolittle. Then I put the question to the Senator: if there are no doubts, why amend the Constitution on that subject?

mr. fessenden. That question the Senator may answer to suit himself. It has no reference to the civil rights bill.

mr. doolittle. That does not meet the case at all. If my friend maintains that at this moment the Constitution of the United States, without amendment, gives all the power you ask, why do you put this new amendment into it on that subject?

mr. howard. If the Senator from Wisconsin wishes an answer, I will give him one such as I am able to give.

mr. doolittle. I was asking the Senator from Maine.

mr. howard. I was a member of the same committee, and the Senator's observations apply to me equally with the Senator from Maine. We desired to put this question of citizenship and the right of citizens and freedmen under the civil rights bill beyond the legislative power of such gentlemen as the Senator from Wisconsin, who would pull the whole system up by the roots and destroy it, and expose the freedmen again to the oppressions of their old masters.

SOURCE: Congressional Register, 1866.

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Congress Debates the Fourteenth Amendment (1866)

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