Fourteenth Amendment (Framing)
FOURTEENTH AMENDMENT (Framing)
The Fourteenth Amendment to the United States Constitution consists of a variety of provisions addressed to several problems that arose when the civil war and the abolition of slavery transformed the American political order. One sentence—"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws "—has become the text upon which most twentieth-century constitutional law is a gloss. But this sentence may not have been the most important part of the amendment as it was conceived by its framers, adopted by Congress, and ratified by the states between 1865 and 1868.
The sentence was addressed most pointedly to one of the lesser problems that Congress faced in the winter of 1865–1866. During that winter congressional legislation protecting the civil rights of former slaves had been vetoed by President andrew johnson in part, he contended, because the Constitution entrusted the protection of civil rights to the states. The Republican proponents of the civil rights act of 1866 mustered the necessary two-thirds vote to override the veto, but doubt remained about the power of the federal government to protect civil rights. The quoted sentence in section 1 of the Fourteenth Amendment was written, at least in part, to resolve that doubt.
Another concern of some Northerners in the winter of 1865–1866 was that some future Congress might repudiate the debt that the federal government had amassed during the Civil War or might undertake to pay the Confederate debt or compensate former slaveholders for the loss of their slaves. Section 4 of the amendment guaranteed the national debt, prohibited the payment of the Confederate debt, and barred compensation to slaveholders.
However, the most urgent task that the Thirty-ninth Congress confronted when it began its first session in December 1865 was to establish governments in the South that would be loyal to the Union and send loyal representatives to Congress. The problem was compounded by the ratification of the thirteenth amendment, which not only abolished slavery but also put an end to the original Constitution's three-fifths clause. With the abolition of slavery, the former slaves would be fully counted as part of the population of the former Confederate states; as a result those states would have more power in Congress and the electoral college than they had had before the Civil War. Something had to be done to insure that the war did not increase the political power of the disloyal groups that had brought the war about.
Three solutions were advanced to prevent those who had lost the Civil War from enhancing their power as a result of it. One was to confer the franchise on Southern blacks, whose votes were expected to bring about the election of loyal candidates. A second solution was to deny political rights—both the right to vote and the right to hold office—to some or all who had participated in the rebellion against national authority. This scheme would increase the number of districts in which Union loyalists had a majority or at least some power to tip the electoral balance in favor of loyal candidates.
A third solution was to alter the basis of representation: to base a state's number of representatives in the House and hence its votes in the Electoral College not on total population but on the number of people eligible to vote. Thus, if a state excluded blacks from the right to vote, they would not be counted in determining its representation in Congress and its vote in the Electoral College. Thus the abolition of slavery and the end of the three-fifths compromise would reduce Southern political power in Congress unless Southern states gave blacks the right to vote and hence a share in that power.
The joint committee on reconstruction, established by concurrent resolutions of the House and Senate in the opening days of the Congress, sought to put the possible solutions into some sort of order. Four members of this fifteen-man committee were most prominent in its activities: john a. bingham and thaddeus stevens from the House and william pitt fessenden and jacob m. howard from the Senate.
At the third meeting of the Joint Committee on January 12, 1866, Bingham proposed a constitutional amendment that would give Congress "power to make all laws necessary and proper to secure to all persons in every State within this Union equal protection in their rights of life, liberty and property." The proposal was referred to a subcommittee which eight days later returned it to the Joint Committee in the following form: "Congress shall have power to make all laws necessary and proper to secure to all citizens of the United States, in every State, the same political rights and privileges; and to all persons in every State equal protection in the enjoyment of life, liberty, and property." In this form the proposal addressed two of the problems then pending, because it gave Congress power to protect civil rights and to legislate voting rights for blacks. This proposal, however, was never presented to Congress. The committee spent two weeks debating its language, finally agreeing on February 3 to the following: "The Congress shall have power to make all laws which shall be necessary and proper to secure to citizens of each State all privileges and immunities of citizens in the several States [Art. IV, Sec. 2]; and to all persons in the several States equal protection in the rights of life, liberty and property [5th Amendment]." A key issue that subsequent judges and scholars have long debated is whether this change in language was meant to deprive Congress of power to legislate black suffrage or merely to put that power into more acceptable language.
On the same day that the subcommittee submitted the early version of the amendment to the Joint Committee, it also submitted a proposal basing representation on population, but further providing "[t]hat whenever the elective franchise shall be denied or abridged in any State on account of race or color, all persons of such race or color shall be excluded from the basis of representation." Thus, the total package as of January 20 not only gave Congress power to legislate civil rights and black suffrage—power which Congress might or might not exercise—but also deprived a state of representation based on its black population if blacks were not given suffrage either by Congress or by the state. The package, as altered by the language change of February 3, was submitted to the full House as two separate constitutional amendments.
On February 28, the House postponed consideration of the Bingham amendment conferring legislative power on Congress, and never again considered that amendment as a separate entity. Earlier it had passed and sent to the Senate the amendment depriving states of representation if blacks were denied the right to vote. The Senate, however, never acted on the proposal. Thus, by the end of February 1866, the two forerunners of the Fourteenth Amendment had come to nought.
Both reappeared in slightly different language, however, in the omnibus measure which the Joint Committee presented to both houses of Congress on April 30, 1866. Section 1 of the measure was the sentence containing today's privilege and immunities, due process, and equal clauses, while section 2 reduced the representation of states who denied the right to vote to males over the age of twenty-one. Section 3 deprived all persons who had voluntarily supported the Confederate cause of the right to vote in federal elections prior to 1870, while section 4 dealt with the war debt. Section 5 gave Congress power to enforce the other four sections.
The omnibus amendment passed the House as proposed, but it faced difficulties in the Senate. When it emerged from the Senate on June 8, it had been changed in two significant respects. One of the changes added to section 1a … definition of citizenship. The Senate also weakened section 3; instead of disfranchising those who had supported the Confederacy, it merely barred from federal office those Confederate supporters who prior to the Civil War had taken an oath to support the Constitution.
After the House had concurred on June 13 in the Senate's changes, the amendment was sent to the states. Twelve days later, on June 25, Connecticut became the first state to ratify. Five additional states ratified the amendment in 1866, and eleven added their ratifications in January 1867. By June of 1867, one year after the amendment had been sent to the states, a total of twenty-two had ratified it.
Ratification by six more states was needed, however, and that did not occur until July 1868. By that time two of the states that had previously ratified the amendment, New Jersey and Ohio, had voted to withdraw their assent. Nonetheless Congress ruled that their ratifications survived the subsequent efforts at withdrawal and remained valid. On July 28, 1868, Secretary of State william seward accordingly proclaimed the Fourteenth Amendment part of the Constitution of the United States.
In recent decades, historians and judges have extensively debated three questions about the meaning which the Thirty-Ninth Congress and the ratifying states attached to the Fourteenth Amendment, especially to section 1. First, does section 1 give Congress power to protect voting rights? Second, does section 1 overrule barron v. baltimore (1833) and require the states to abide by the provisions of the bill of rights ? Third, does section 1 prohibit compulsory racial segregation ?
Did section 1 of the Fourteenth Amendment give Congress power to protect voting rights? The Justices of the Supreme Court have been divided in their answer to this question, although the weight of historical scholarship leans toward the view that section 1 was not concerned with voting rights. As the above summary of the progress of the amendment in Congress suggests, resolution of the issue depends on whether the privileges and immunities language in section 1 was meant to alter the substance or only the form of an earlier version of the section, which explicitly gave Congress power to secure to all citizens in every state "equal political rights and privileges." The question can never be answered definitively, for the substitution was made in committee and the committee left no record of its reasoning. The record of congressional debates is equally ambiguous. When the present language of section 1 was on the floor, some congressmen suggested that the section gave Congress power to protect voting rights, but others disagreed. Similarly, some congressmen claimed after the amendment had been adopted that it gave them power to legislate protection of voting rights—and again others disagreed.
Was section 1 meant to overrule Barron v. Baltimore and compel the states to abide by the provisions of the Bill of Rights? Justice hugo l. black, relying on explicit statements during congressional debates that the section would accomplish that end, declared in a dissenting opinion in Adamson v. California (1947) that the Fourteenth Amendment did incorporate the Bill of Rights and apply it to the states. Some scholars have supported Black's position. However, two years after Adamson Charles Fairman wrote an article challenging Black. Fairman noted that many states in the 1860s did not follow procedures mandated by the Bill of Rights, but that no one during state ratification proceedings seemed concerned that adoption of the Fourteenth Amendment would require changes in state practice. He thought it probable that, if the states were concerned that the amendment, through incorporation of the Bill of Rights, would require changes in their practices, they would at least have discussed the issue. He concluded from the lack of discussion that the amendment had no such purpose. The view of several recent scholars has been that, in light of the conflicting and insubstantial evidence, the question raised by Justice Black can never be conclusively answered.
Finally, there is the question whether section 1 was intended to prohibit racial segregation. After asking the litigants in brown v. board of education (1954) to address this question, the Court concluded that the historical evidence was too ambiguous to permit an answer. Some scholars, however, have been more confident. Raoul Berger concluded that the framers of the amendment did not intend to prohibit racial segregation. On the other hand, alexander bickel had argued some years earlier that the framers had consciously framed section 1 in broad, open-ended language that would permit people in the future to interpret it as prohibiting the practice of segregation. The historical record itself is sparse. During the debates in Congress on the amendment, little was said about segregation. Earlier, however, Congress had engaged in lengthy debates about the legality of segregation on district of columbia streetcars. Moreover, school segregation was opposed by some members of Congress, notably charles sumner who had been counsel in roberts v. city of boston, an 1849 school desegregation case. In the 1860s, however, Congress was permitting racially segregated schools to exist in the District of Columbia.
Questions about whether the Thirty-Ninth Congress and the states that ratified the Fourteenth Amendment intended it to protect voting rights, make the Bill of Rights binding on the states, or outlaw segregation can never be answered confidently. All that the person who inquires into the historical record in search of an answer can do is make a guess—a guess more likely to reflect his political beliefs than to reflect the state of the historical record. The questions that judges and historians have asked about the original meaning of the Fourteenth Amendment are simply the wrong ones, because they do not address the issues that Congress and the ratifying states in fact debated and decided during the era of Reconstruction.
On one point of political philosophy, nearly all Americans of the 1860s agreed. President Andrew Johnson stated the point in his 1865 State of the Union address: "Monopolies, perpetuities, and class legislation are contrary to the genius of free government, and ought not to be allowed. Here there is no room for favored classes or monopolies; the principle of our Government is that of equal laws.… We shall but fulfill our duties as legislators by according "equal and exact justice to all men, special privileges to none." Innumerable Republicans argued that the purpose of section 1 of the Fourteenth Amendment was to enact this political principle into law. John A. Bingham, the draftsman of section 1, said what others repeated: that he proposed "by amending the Constitution, to provide for the efficient enforcement, by law, of these "equal rights of every man"—of "the absolute equality of all men before the law." Even Democrats from former slave states accepted the principle that the law should treat all persons equally. There was neither division nor sustained debate in the Thirty-Ninth Congress over the contrary principle that people who are in fact the same should receive equal treatment before the law and that people who are different may be treated differently. The issue on which Republicans and Democrats divided was whether black people, in essence, were equal to white people or inherently inferior.
Garrett Davis, a Democratic senator from Kentucky, used typical racist rhetoric. During an 1866 debate on the question whether blacks should be permitted to vote in the District of Columbia, Davis said:
[T]he proposition that a nation of a superior race should allow an inferior race resident in large numbers among them to take part in their Government, in shaping, and controlling their destinies, is refuted by its mere statement. And the further proposition that a nation composed of the Caucasian race, the highest type of man, having resident in it more than four million negroes, the lowest type, of which race no nation or tribe, from the first dawning of history to the present day, has ever established a polity that could be denominated a Government, or has elaborated for itself any science or literature or arts or even an alphabet, or characters to represent numbers, or been capable of preserving those achievements of intellect when it has received them from the superior race; such a proposition is, on examination, revolting to reason, and in its practical operation would be productive of incalculable mischief.
Republicans responded to this "prejudice," which "belong[ed] to an age of darkness and violence, and is a poisonous, dangerous exotic when suffered to grow in the midst of republican institutions." Jacob M. Howard, a key member of the Joint Committee, told the Senate:
For weal or for woe, the destiny of the colored race in this country is wrapped up with our own; they are to remain in our midst, and here spend their years and here bury their fathers and finally repose themselves. We may regret it. It may not be entirely compatible with our taste that they should live in our midst. We cannot help it. Our forefathers introduced them, and their destiny is to continue among us; and the practical question which now presents itself to us is as to the best mode of getting along with them.
Justin Morrill of Vermont added: "We have put aside the creed of the despot, the monarchist, the aristocrat, and have affirmed the right and capacity of the people to govern themselves, and have staked the national life on the issue to make it good in practice.… To deny any portion of the American people civil or political rights common to the citizen upon pretense of race or color, is to ignore the fundamental principles of republicanism." The only proper policy for the Government, according to Lyman Trumbull, chairman of the Senate Judiciary Committee, was "to legislate in the interest of freedom. Now, our laws are to be enacted with a view to educate, improve, enlighten, and Christianize the negro; to make him an independent man; to teach him to think and to reason; to improve that principle which the great Author of all has implanted in every human breast, which is susceptible of the highest cultivation, and destined to go on enlarging and expanding through the endless ages of eternity."
Trumbull and his fellow Republicans understood that God had created blacks as the equals of whites and that, if the law gave blacks an opportunity, they would demonstrate their equality. The Republicans made this equalitarian faith the basis of the Fourteenth Amendment. Although the faith was forgotten within a decade of the Fourteenth Amendment's ratification, it still offers a perspective from which to begin analysis of the issues of Fourteenth Amendment jurisprudence that confront us today.
William E. Nelson
(see also: Abolitionist Constitutional Theory.)
Berger, Raoul 1977 Government by Judiciary: The Transformation of the Fourteenth Amendment. Cambridge, Mass.: Harvard University Press.
Bickel, Alexander M. 1955 The Original Understanding and the Segregation Decision. Harvard Law Review 69:1–65.
Fairman, Charles 1949 Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding. Stanford Law Review 2:5–173.
Hyman, Harold M. and Wiecek, William M. 1982 Equal Justice under Law: Constitutional Development 1835–1875. New York: Harper & Row.
James, Joseph B. 1956 The Framing of the Fourteenth Amendment. Urbana: University of Illinois Press.
Ten Broek, Jacobus 1951 The Antislavery Origins of the Fourteenth Amendment. Berkeley: University of California Press.
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