Fourteenth Amendment, Section 5 (Framing)

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The fourteenth amendment was proposed by Congress in 1866 and ratified in 1868. Section 1 made persons born in the nation citizens and prohibited states from abridging the privileges and immunities of citizens of the United States and from denying due process or equal protection to any person. Section 5 gave Congress the power to enforce the amendment by appropriate legislation. However, in 1866, the exact scope of the enforcement power was not clear. Particularly, it was unclear whether the amendment was designed to reach purely private action and conspiracies or only those in which state officials were involved. Controversy on this question has continued from 1866 to the present.

Although the debates on the Fourteenth Amendment did not emphasize the mechanics of the enforcement authorized by section 5, broad themes in the debate were clearly relevant to enforcement. Most members of the re-publican party insisted on protection for fundamental rights of American citizens, were committed to a federal system that required states to respect basic rights, and were unwilling for the federal goverment to supplant the basic jurisdiction of the states over crimes and civil matters. At the same time, Republicans were determined to protect blacks and loyalists in the South.

A prototype of the Fourteenth Amendment written by Republican john a. bingham provided congressional power to pass all laws necessary to secure all persons equal protection in their rights to life, liberty, and property. Several Republicans objected to the prototype because they thought it would allow federal statutes broadly to supplant state civil criminal law. Bingham denied that was his purpose and said he intended to authorize Congress to punish state officers for violations of the bill of rights. Bingham's prototype was recast with limitations on the states in section 1 and the enforcement power in section 5. Bingham explained that the final version of the amendment would allow Congress to protect the privileges and immunities of citizens and the inborn rights of every person when these rights were abridged or denied by unconstitutional acts of any state.

Although Republicans generally believed that state laws denying privileges or immunities, due process, or equal protection could be struck down by the courts, they expected Congress to take a direct and substantial role in enforcing the guarantees of section 1. Many believed that the equal protection clause required the states to supply the protection of the laws to blacks, Unionists, Republicans, and others who faced private violence.

Republicans thought enforcement could reach state officials who violated the rights secured by the amendment. One object of the Fourteenth Amendment was to ensure that Congress had the power to pass the civil rights act of 1866. That act had punished persons who, under color of state law or custom, had deprived citizens of the rights it guaranteed. Senator lyman trumbull, chairman of the senate judiciary committee and manager of the civil rights bill in the Senate, thought that state judges who maliciously violated rights secured in the act were subject to prosecution.

In 1871, Congress considered an act to deal with terrorism by the Ku Klux Klan. The most difficult issue confronting the Congress was whether the power to enforce the Fourteenth Amendment under section 5 allowed Congress to make private action a crime. Republicans generally supported provisions that would punish those, like state officers, who deprived persons of rights, privileges, and immunities of citizens of the United States under color of law. However, Democrats and several leading Republicans objected to provisions designed to reach private acts and private conspiracies to deny constitutional rights. They insisted that the power to enforce the Fourteenth Amendment was limited to state action or, some Republican dissenters thought, to cases where the state failed to supply equal protection. Congressional critics pointed to the change from the prototype of the Fourteenth Amendment, which granted Congress power to secure equal protection in life, liberty, or property, to the amendment's final version, which provided restriction on the states in section 1 together with congressional power to enforce the amendment in section 5.

According to the state-action argument, Congress had less power to reach private terrorism intended to deny constitutional rights than the Supreme Court in 1842 had found it had to punish private individuals who interfered with the return of fugitive slaves.

In 1871, most Republicans thought the states had the duty to protect their citizens against politically or racially motivated violence and that private individuals who interfered with this duty could be punished. As finally passed, the 1871 act punished private individuals who conspired to deprive persons of equal protection or equal privileges or immunities or who conspired to interfere with state officials supplying equal protection. In this form, the act secured the support of Republicans who had expressed constitutional doubts. Still, in united states v. harris (1883), the United States Supreme Court held a section of the 1871 act unconstitutional because it reached conspiracies by private persons to deny constitutional rights and did so regardless of how well the state had performed its duty of equal protection. In 1966, in the midst of a second reconstruction, six Justices suggested that Congress could reach some private conspiracies designed to interfere with constitutional rights. In jones v. alfred h. mayer co. (1968) the Supreme Court recognized power in Congress to enforce the thirteenth amendment by prohibiting private racial discrimination in housing contracts. Still, the power of Congress to reach private conduct under the Fourteenth Amendment remains controversial.

Michael Kent Curtis


Avins, Alfred 1967 The Ku Klux Act of 1871: Some Reflected Light on State Action and the Fourteenth Amendment. Saint Louis University Law Journal 11:331–381.

Carr, Robert K. 1947 Federal Protection of Civil Rights. Ithaca, N.Y.: Cornell University Press.

Frantz, Laurent B. 1964 Congressional Power to Enforce the Fourteenth Amendment Against Private Acts. Yale Law Journal 73:1352–1384.

Hyman, Harold and Wiecek, William 1982 Equal Justice Under Law. New York: Harper & Row.

Kaczorowski, Robert J. 1985 The Politics of Judicial Interpretation: The Federal Courts, Department of Justice and Civil Rights 1866–76. New York: Chelsea House.

Zuckert, Michael 1986 Congressional Power Under the Fourteenth Amendment—The Original Understanding of Section Five. Constitutional Commentary 3:123–155.

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Fourteenth Amendment, Section 5 (Framing)

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