IntroductionThe written words of our Constitution, and their meaning, are what makes America’s freedoms genuine. How the Constitution is interpreted impacts the manner in which our freedoms are defined and implemented from time-to-time. These changes are perhaps more crucial than the outcomes of wars (i.e., our own Civil War), and constitutional change is made possible through the amendment process. Article five of the Constitution states: “The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution.” To amend requires ratification “by the legislatures of three fourths of the several States.” If slavery had not been abolished through the ratification of the Thirteenth Amendment; if former slaves were not recognized as “persons” under the Constitution and given the same “privileges” and “immunities” as citizens, and equally constituted with the freedom to pursue “life, liberty, or property,” under due process of law, provided for in section one of the Fourteenth Amendment; and if blacks were not given the right to vote under the Fifteenth Amendment—the Civil War (I believe) would have been fought in vain.
The framing of the Fourteenth Amendment was one of America’s defining moments, and it has been arguably the most crucial and seriously debated amendment in recent years. The purpose of my inquiry is to research, discover, and understand what took place during the drafting proceedings and debates of the 39th U.S. Congress in 1866, and to determine whether or not it was the framer’s intent to incorporate the Bill of Rights into Section One of the Fourteenth Amendment and thereby make them applicable to the states. This makes up the major part of my research; but it is by no means limited to the Congressional debates. To understand the developmental origins of Section One, one must also understand the significance and contribution of anti-slavery and abolitionist constitutional theory. One must understand the developmental philosophy of Abraham Lincoln, who was perhaps the single most influential spokesman for the Declaratory (human right) concepts of “life, liberty,” and “due process of law.” Beyond this, it is also important to follow the procedural ratification of the Fourteenth Amendment through the various states, both north and south, and to follow its implementation in the states—legally, historically, and politically.
There are scholars—legal, historical, and political—who argue that it is impossible to know what the original intent of the framer’s were. Records are records, and climbing inside their little heads is impossible—especially when they are dead! On the other hand, there are people like Robert H. Bork who narrowly argue that original intent is possible to determine through the study of jurisprudence history, and should be used to preserve the framers’ intentions.1 William Nelson argues, “It is in the framing generation’s incomplete efforts to transform the principles of human rights and equality into constitutional law that historians must begin to find the Fourteenth Amendment’s meaning.”2 Textually, words have meaning, and besides the extant records available, both primary and secondary, combined with an understanding of the circumstances and arguments then taking place, the diligent historian can put together a broad picture of reasonable intent. However, for the sake of argument, and because I do not quite agree with scholars of either venue, I choose not to employ the term original intent. Rather, I have chosen to use the term developmental progression because I believe it best defines how section one of the Fourteenth Amendment empirically evolved into its significant place in history, and into our modern national experience.
The framer’s in 1787 did not spell out every legal detail, determining beforehand how Americans were to implement the Constitution. The Constitution is a philosophical work, largely thematic, rich in classical origins, dating back to the Magna Carta, and vague. Similarly, Professor William E. Nelson, of Harvard University argues that the debates on the Fourteenth Amendment were, in essence, debates about high politics and fundamental principles—about the future course and meaning of the American nation. The debates, by themselves did not reduce the vague, open-ended, and sometimes clashing principles used by the debaters to precise, carefully bounded legal doctrine. That would be the task of the courts once the Fourteenth Amendment, having been enacted into law, was given over to them to reconcile its ambiguities and its conflicting meanings.3
Therefore, original intent is a difficult argument to make. Original? Yes. As simplistic as it is, it is legitimate to argue that the Constitution itself was originally written in vague, philosophical terms. Intent? Not likely. If we knew the precise legal intentions of the framers, we would not need to employ a Federal Supreme Court to interpret its meaning. If the Constitution had been written so precisely as to define every anticipated legal action and circumstance that arose under the law, then the interpretation of those laws would be a mindless effort, and would have conveniently denied Supreme Court Justices the freedom to possess empirical assumptions of their own. Legislative dictatorship would have been the easier course. Instead, the framers were dedicated to forming a democratic republic that relied on a broad and flexible Constitution.
But just how flexible was the Constitution prior to the Civil War, and what impact might this have had toward augmenting the Civil War, its outcome, and the ratification of the Fourteenth Amendment in 1868? The case in point is the Bill of Rights. What was the constitutional role of the Bill of Rights? Were the Bill of Rights intended to preserve the public life of the framers’ day, or to assist and defend the ever-changing private lives Americans would choose? If the Bill of Rights serve as a check on the intrusion of the Federal Government into the private lives of Americans, what justification does a branch—the judicial branch—of the Federal Government have to selectively incorporate the Bill of Rights into the Fourteenth Amendment, and make them applicable to the states? More specifically, were the Bill of Rights an inherently passive document, left without the power of Federal implementation? Notwithstanding the incorrigible status of the black slave in the southern states, how extensive were “citizen’s” rights in the states, and how faithfully were they implemented? However incredible the concept of original intent may seem, prior to the Civil War, the Bill of Rights simply stated what Congress could not do, and in many respects was inherently left without the power of Federal implementation. Was this intended by the framers’ in 1787, or simply inherent? In Barron v. Baltimore (1833),4 and in Permoli v. New Orleans (1845),5 it was ruled that the first eight amendments restrained only the federal government, and were therefore not applicable to the states. American “citizens” were encouraged to look to state constitutions for the protection of their civil liberties. This would suggest that the Constitution’s flexibility was left suspect, especially when the entire issue of human rights was significantly magnified by abolitionists over the plight of America’s slaves.
Therefore, when we speak of original intent, what do we mean? The concept of original intent is not lacking for rationale among scholars. Professor Norskov Olsen asserts that “Ideological changes are taking place in all areas of life, but before new norms replace old constitutional principles it is of vital necessity to ask what, historically, made America the society it has been, for without doubt only that which made America can preserve it.”6 Failed Supreme Court nominee Robert H. Bork advocates original intent as a necessary method for restraining judicial activists on the bench.7 In his book The Tempting of America, he argues: “It is the task of the judge in this generation to discern how the framers’ values, defined in the context of the world they knew, apply to the world we know.”8 For Judge Bork, “The philosophy of original understanding” serves to control “the process of growth in constitutional doctrine in ways that preserve the document’s relevance and integrity.”9
Leonard Levy argues that “preponderant evidence suggests that the framers of the Fourteenth Amendment intended its provisions neither to incorporate any part of the Bill of Rights nor to impose on the states the same limitations previously imposed on the United States only.”10 On the other hand, Levy insists that the words of the Fourteenth Amendment are sufficient for judicial scholars and judges to interpret to meet today’s Constitutional dilemmas. Levy asks, “Does it matter that the framers of the Fourteenth Amendment did not intend that any part of it should incorporate provisions of the Bill of Rights generally?”11 Not at all. For Levy—like Jacobus TenBroek, Howard J. Graham, Michael Kent Curtis, William Nelson, and Judith A. Baer—“The Constitution is not a static document whose meaning is fixed timelessly. So long as the Court relies on the text itself and the principles and purposes embodied in the text, the Constitution can legitimately grow in meaning, like Magna Carta.”12
Section one of the Fourteenth Amendment essentially states that “persons” under the Constitution are given the same “privileges” and “immunities” as citizens, and equally constituted with the freedom to pursue “life, liberty, or property,” under “due process” of law. For the sake of discussion, if section one of the Fourteenth Amendment was adopted to simply protect the freed slaves from hostile Southern state governments, then why does the Amendment fail to mention “Negroes” by name as the specific recipient of these “privileges” and “immunities” as citizens? Section one specifically states that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” If seriously pondered, section one of the Fourteenth Amendment would have no legal force, and could not be implemented in the states—north and south—if each of the (first eight) Bill of Rights were not applicable. If these rights were applicable to the freed slaves—the right to freely worship or not worship according to the dictates of conscience, the right to speak and write freely, the right to assemble and the right to petition the government, the right to bear arms, the right to own property, the right to privacy in their homes, the right against self-incrimination by taking the oath of silence, the right to an impartial and speedy public trial, the right to be protected from cruel or unusual punishments—then why wouldn’t they be applicable to “All persons born or naturalized in the United States” who are “subject” as “citizens” “to the jurisdiction” of the Federal Government “and of the State wherein they reside”? To deny the same rights and privileges to other “persons born or naturalized in the United States” would be clearly discriminatory. Original intent aside, the principles of section one of the Fourteenth Amendment are the same as the principles enumerated in the Bill of Rights. When the rest of section one of the Fourteenth Amendment specifically declares that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” then this amendment, logically speaking, would be directly applicable to the states.
But the discussion continues: preservation, progression, or both? What is more important? Preserving the document’s constitutional integrity, or interpreting the Constitution in a manner that makes relevant the times in which we live? Viewing history as developmental progression does not necessarily depend on understanding the precise intent of the framers’. However untenable the concept, and however contrary to Judge Bork’s analysis, original intent does not necessarily frustrate the study of the broad and thematic historical development of constitutional principles. Whether intended or not, history in the making is tantamount to the unfolding narrative in which change is constantly taking place. While preserving the Constitution’s authenticity, the empirical concept of original intent can only augment the developmental principles of Constitutional History.
For example, although legal, economic, political, social, and cultural institutions were at work to sustain the institution of slavery, this merely intensified the progressive drive of abolitionists to eradicate slavery and to advance the cause of human rights in America. As a result of Chief Justice John Marshall’s decision in Barron v. Baltimore in 1833, which denied the applicability of the Fifth Amendment to the states, abolitionists advocated a liberal application of the Bill of Rights to all the states. Several years later they unsuccessfully argued in behalf of Dred Scott’s right to sue for being captured north of the 36E30N latitude and protested Chief Justice Robert Taney’s denial of Scott’s privileges and immunities as a free citizen to due process and equal protection of the laws in 1857. Justice Taney ignored the Bill of Rights, which had their origin in the Magna Carta Charter and the Declaration of Independence, and continued to justify slavery under the rigors of constitutional intent even though the Constitution said very little about slavery except for the implied reference to slaves being counted as “three-fifths of all persons” under the apportionment of representatives clause contained in Article I, section 2, and the fugitive slave clause in Article IV, section 2, where “No person” was to be “held to service or labor in one state under the laws thereof escaping,” and so on.
The progressive movement to abolish slavery, Lincoln’s Emancipation Proclamation Act, and the ratification of the Thirteenth, Fourteenth, and Fifteenth Amendments, were all events that contributed to the developmental growth of new constitutional doctrine. But these events also illustrate the long and agonizing process it took for new constitutional doctrine to be established as the law of the land, and to be a blessing to future generations.
Antislavery constitutional theory and the incorporation of human rights, when systematically itemized by the Bill of Rights, were arguably inseparable. The Fugitive Slave Act of 1793 set into motion the antislavery constitutional theories of abolitionists, and according to Jacobus TenBroek in Equal Under Law: The Antislavery Origins of the Fourteenth Amendment, helped to establish three vital questions. First, how free is a Negro when escaping to the North? Second, where do the rights of the owner end? Third, how extensive is Congressional authority in regards to the enforcement of constitutional requirements and restrictions?13
The purpose of the Fugitive Slave Act of 1793 was to assist slave owners in reclaiming slaves who ran away to find refuge in the free states of the North. Long before Chief Justice Robert B. Taney constitutionalized the verbiage that black slaves were “a subordinate and inferior class of beings, who had been subjugated by the dominant race” in Dred Scott v. Sanford (1857) the Fugitive Slave Act of 1793 (and later in 1850) specifically referred to black slaves as “persons,” and legislatively set in motion the violation of certain provisions contained in the Federal Bill of Rights.
Once captured by the slave owner or by his “agent or attorney,” all that was required was for the owner to show proof of ownership by affidavit or oral testimony, and to obtain a signed certificate from the judge. This violated the due process clause in the Fifth Amendment. Abolitionists also claimed this was a violation of the Tenth Amendment, largely because Congress, by the Act, had “exceeded its powers in forcing state officials to participate in federal rendition proceedings, in permitting rendition from Territories as well as States, and in interfering with the rights of the states to protect their free citizens.” Abolitionists also argued that the Act violated the slave’s common law, “right of trial by jury,” clause in the Seventh, and also violated the Fourth Amendment where people possessed the right “to be secure in their persons, houses, papers, and effects,” and “against unreasonable searches and seizures”—and in the case of the slave owner’s not having to obtain a Federal “warrant.”14
James G. Birney (1792-1857), editor of The Philanthropist and twice a presidential candidate of the Liberty Party for the Presidency of the United States, chastised the northern free states in a letter written to Joshua Leavitt and others on January 10, 1842, for allowing “our fellow creatures, dwelling among us in peace, fearing no harm,” to be suddenly seized and taken—“often within the compass of a few minutes from their firesides and families, [back] into the horrible guilt of slavery.” Birney continued:
This we do, without the intervention of a jury, although the Constitution provides that, “in suits at common law, where the value in controversy shall exceed twenty dollars, the trial by jury shall be preserved,” and “that no persons shall be deprived of life, liberty, or property, without due process of law.” – All this we do converting the free States into hunting grounds for human prey, and attempt to cover it from the world and even from ourselves, by calling the slave, a “person held to service [or labor in one State] under [the] laws,” and the slave catcher, “the party to whom such service is due.”15
In December, 1833, the American Anti-Slavery Society even went as far as to publicly declare that “All those laws” contained in the Fugitive Slave Act, “which are now in force,” and which admit “the right of slavery,” to be “utterly null and void.”16 Such declarations were bordering on anarchy. Was not the slave owner within his constitutional boundaries to lay claim on his runaway slave? Did not Article IV, section 2, specifically state that “No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due”? On the other hand, was not the Bill of Rights intended to serve as a restraint upon the Federal Government—as a check on their powers? Was the Fugitive Slave Act of 1793, although within constitutional strictures, and within the powers delegated to the Federal Government, therefore unconstitutional because it violated certain provisions in the Bill of Rights? According to Chief Justice William Tilghman of the Pennsylvania Supreme Court in Wright v. Deacon (1819), the United States Congress was well within their constitutional limitations.17
The Missouri Compromise of 1820
James Madison was at the ripe age of 68 when he wrote his sentiments to Congress regarding the admittance of the State of Missouri into the Union in 1819. In his letter to Robert Walsh on November 27th, Madison objected to Congress’ caving in to abolitionists when attaching an antislavery condition to the admission of Missouri, and their attempt to get Congress to regulate the migration of slaves within the United States. Madison considered laws that excluded slavery from the national territories as unconstitutional regardless of the enduring precedent of the Northwest Ordinance as enacted by the First Congress. James Madison actually believed that the proliferation of slavery in the territories would strengthen the bargaining power of the bondsman, discourage the slave owner, and thus speed the extinction of the institution.18
Thomas Jefferson believed the Northern abolitionist movement was a grass roots conspiracy spurred by a desperate Federalist Party intent on regaining political power over the Republicans. Both Madison and Jefferson warned that the price for injecting the issue of slavery into national politics was enormous, and could be the disruption and dismantling of the Union. The Missouri Compromise admitted Missouri without antislavery conditions, contrary to Madison’s advice, and banned slavery in the Louisiana Territory north of the 36E30N latitude. With the advent of the Kansas-Nebraska Act of 1854 came the reversal of the Missouri Compromise, allowing for each prospective state, upon admittance, to popularly determine their own sovereign will in regard to the institutionalization of slavery. Long after his death, the division Madison had feared was beginning to unfold: the formation of a new Republican party in the North out of the antislavery elements of the major national parties.19
Abolitionist Constitutional Theory
Perhaps the most important materials pertaining to the developmental understanding of the framing of section one of the Fourteenth Amendment are found in the pamphlets, sermons, and speeches of abolitionists between 1840-1860. As Jacobus TenBroek points out in his priceless work, originally titled The Antislavery Origins of the Fourteenth Amendment,
The three much-discussed clauses of section 1 of the Fourteenth Amendment were the product of and perhaps took their meaning, application, and significance from a popular and primarily lay movement, which was moral, ethical, religious, revivalist rather than legal in character. The movement was comprised of people who knew little and cared less about the erudition and ancient usages of the law, who came to the reading of the Constitution as dogmatic, even fanatical reformers. To these abolitionists, centering in the Western Reserve of Ohio . . . it was as a culmination of this movement and usage that the clauses of section 1 of the Fourteenth Amendment were made a part of the Constitution; and their accepted meaning was the meaning which these reformers gave them on the hustings, in revival meetings, in pamphlets, and in the thousand other outlets to their ardor.20
The American Anti-Slavery Society, whose activities began during the early years of our Republic, and shined brightest from 1835-1838, was known for championing liberty and equality in their attack on the “ethical and moral evils” of slavery instituted by a nation that professed in its Declaration of Independence that “All men are created equal”—equal in “certain inalienable rights, among which are life, liberty, and the pursuit of happiness.”21
But radical abolitionists and the American Anti-Slavery Society were not of the same character. The American Anti-Slavery Society and its auxiliaries, according to TenBroek, “disavowed any intention of interfering with slavery in the states, making it plain that there was no claim of national authority to do so.” Their primary targets were the conversion of slaveholders. On the other hand, abolitionists believed that the abolition of slavery could only be accomplished by effective political action at the grass roots level, and armed with a well-defined nationalistic constitutional theory.22
The most important element in abolitionist constitutional theory was “the notion that governments were instituted to protect man in his inalienable rights to life, liberty, and property and that the standard by which this protection was to be meted out was that of equality.”23 Abolitionists believed that the concept of the equal protection of the laws was the common denominator in all aspects of American government. Jacobus TenBroek argues,
It was unchallenged as an essential part of the theory of the revolution and of the early Republic. It was recognized by and read into many of the state constitutions. It was made explicit in the Declaration of Independence, asserting that “all men are created equal,” that they are entitled to “life, liberty, and the pursuit of happiness,” and the treating of these rights as the gift of the Creator to man as man—therefore “unalienable,” and proclaiming the right of the people to throw off any government which failed to carry out the primary duty of protecting men in these inalienable rights. It is the method and the measure by which justice, specified in the Preamble of the Constitution as a fundamental object of the organizations of government, is to be established and tested. It is the universal correlative of the allegiance and obligation of obedience which the constitutional system exacts.24
The due process clause was secondary to abolitionists, largely because they wanted to make sure that their activities were procedurally protected against violent reprisals by mobs employed by Southern slave owners desperately wanting to silence them. But this motive was intermingled with the procedural purpose of freeing the slaves and for securing the use and protection of the laws and the courts in behalf of free Negroes. More significantly, both substantive and procedural due process of law was viewed by abolitionists as more than just a restraint on governmental power, they believed it was an obligation of the federal legislature to guarantee protection for their activities. Both pro-slavery and antislavery forces appealed to the federal government for substantive and procedural due process guarantees under the law. The major debate between the two consisted of their definitions of due process when referring to slaves. Abolitionists argued in behalf of their value as “persons,” whereas pro-slavery advocates viewed slaves as chattel (or property). The issue of “due process” would play a much larger role at the political, party platform, level during the presidential campaign of 1860.25
The privileges and immunities of citizens clause represented the core purpose of the protection of the laws. Alvan Stewart, in a speech delivered before the New York Anti-Slavery Society in 1837 (of which he was leader), ended any doubt among its constituent members whether or not the power of the federal government could be a constitutionally viable alternative in bringing an end to slavery in America. His speech was published in the October issue of The Friend of Man and widely discussed by abolitionists and Society members throughout the Union. If, argued Stewart, according to the Fifth Amendment, the word “person” “covers the whole ground of our humanity, and means everybody,” then “every human being in this Union, black or white, bond and free” are thereby included. Stewart argued rather effectively that Article IV, section 2 of the Constitution, which stated that “No person held to service or labor in one state under the laws thereof escaping,” applied not only to black slaves, but also “white apprentices bound to serve their masters for a limited time and the sons and daughters of a parent, being minors, and a man’s wife, escaping from the person, to who their service is due, to another state, may be delivered up as well as the slave, &c.” Stewart boasted that “none will dispute” “that the words ‘no person’ here, may mean the fugitive slave, the bound free apprentice, the wife, the son, daughter.”26 However, by 1860 this argument held very little weight, largely because white servitude had virtually vanished in the states and territories.
The most significant aspect of Stewart’s argument came when he referred to the Fifth Amendment’s “No person” clause to mean that “every person” in the United States is entitled to due process in the state wherein they reside. Stewart held that the Fifth Amendment was applicable to the states.27 This was a fairly fresh argument. In 1833, Chief Justice John Marshall ruled in Barron v. Baltimore that the first eight amendments were not applicable to the States, and that citizens must appeal to the their local state government for due process and equal protection of the laws. Stewart protested, and argued that the States frequently disregarded provisions contained in their own Bill of Rights, and unless the Federal Government intervened and made the Federal Bill of Rights applicable to the States, there would be no regulation over the corruption proliferating in state governments. Jacobus TenBroek enlarges on Stewart’s argument from the abolitionist’s perspective:
The abolitionists saw slavery, the discrimination against free Negroes, and the mistreatment of the abolitionists themselves as violations of rights and guarantees imposed in the first eight amendments to the United States Constitution. These systems and breaches were above all else deprivations of life, liberty, and property without due process of law, conceived both substantively and procedurally. They were also denials of free speech and press, of the rights of peaceable assembly and petition. They were unreasonable searches and seizures. They were transgressions of the criminal safeguards of the Fifth, Sixth, and Eighth amendments. They were even at times and to some extent a violation of the right to bear arms, assured in the Second Amendment, and of the right to a jury trial in common-law suits, stated in the Seventh.28
There were others, such as Charles Olcott, who argued that all of the amendments to the Constitution were “wholly incompatible with the substance of slavery.”29 Joel Tiffany argued in his Treatise on the Unconstitutionality of Slavery that all of the amendments were binding on the states; especially when the states violated their own provisional Bill of Rights.30 The most significant development was not so much the abolitionists appeal to the amendments themselves, but their consistent appeal to the principles and rights delineated in the first eight amendments. In order to get past the legal rationale of the Courts, they argued that the high and inalienable moral principles specified in the Bill of Rights were binding on the States. In other words, they wanted a stronger, more assertive, more interventionist Federal Government: what was morally right was right, and what was morally abhorrent must be checked by the Federal Government. Despite Justice Marshall’s ruling in Barron v. Baltimore, abolitionists maintained that the Bill of Rights were “immortal,” that men’s natural rights were morally binding on all governments, and that it was the moral duty of all the state governments to protect these rights “in the absence of the Bill of Rights.” Bill of Rights or no Bill of Rights, governments were to be proper stewards of the inalienable rights given to all men by their Creator. In other words, the golden rule was applicable: all men were to be their brother’s keeper, to watch out for the best interests of their neighbor.31
Theodore Dwight Weld, in his treatise touching on The Power of Congress over Slavery in the District of Columbia, published in 1836 by the New York Evening Post, invoked another argument. Besides his claim that Congress had been given full jurisdiction over ten acres by the states of Virginia and Maryland, and thus were authorized to outlaw slavery in the District of Columbia, in so many words Weld also implied that the Constitutional guarantees specified in the Bill of Rights were not intended by the “Fathers” of the Constitution to be static, but were rather to be enlarged in an enlightened spirit—a spirit which they so faithfully emulated. He asked:
The spirit and the power of the Fathers, where are they? Their deep homage always and everywhere rendered to free thought, with its inseparable signs—free speech and a free press—their reverence for justice, liberty, rights and all pervading law, where are they?32
Mr. Weld inquired into whether the abolition of slavery was “within the appropriate sphere of legislation.” He argued that slavery, as a legal system, is the creature of legislation: “The law, by creating slavery, not only affirmed its existence to be within the sphere and under the control of legislation, but also, the conditions and terms of its existence, and the question whether or not it should exist.” He asked, “Cannot legislatures repeal their own laws? If law can take from a man his rights, it can give them back again. If it can say, ‘your body belongs to your neighbor,’ it can say, ‘it belongs to yourself.’” Weld argued that “almost every civilized nation” had “abolished slavery by law.”33
Weld extensively studied the laws of southern states. He cited many examples of laws where the state was authorized to curb the abuses of slave owners. Since Mississippi’s and Missouri’s Constitutions could “oblige the owners of slaves to treat them with humanity”; since South Carolina could “prohibit the working of slaves more than fifteen hours in the twenty-four”; since Georgia could “prohibit the working of slaves on the first day of the week”; since North Carolina “prohibits the ‘immoderate’ correction of slaves”; since Louisiana and Virginia “makes slaves real estate, prohibiting the holder, if he be also a land holder, to separate them from the soil,” and so on. In other words, if the state was authorized to curb the abuses of the slave owner, then, Weld argued, they had the power to reverse by law what they enacted by law. Some State Constitutions, Weld pointed out, gave their legislatures the power to free slaves they judged to “have rendered the state some distinguished service.”34
Southern Theories of the Constitution Contrasted
Southern theories regarding citizenship and man’s natural rights were fundamental, but not as far apart as the arguments suggest when contrasted with those who advocated the abolition of slavery. Ironically, much of the constitutional theory popular in the South was similar, but contextually and culturally distinct, to abolitionist theory. They too relied on John Locke’s theory of social compact, the natural and inalienable rights of man, and the protective jurisdiction of government. Specifically noteworthy was the fact that the South was very particular about equality of protection and “especially applied it as a requirement of the federal government.”35 Southerners were particularly protective of their rights under the due process clause of the Fifth Amendment, and were just as protective of the other amendments provisions. They sought protection from the murderous John Brown’s of the north, who believed they were God’s instrument to free the slaves.36 (John Brown, just prior to the outbreak of the Civil War, sought to rid slavery in America by kidnapping slaves in the south and transporting them to freedom in the north. But one too many cold blooded assaults on slave owners would catch up with him as he hung at the end of a rope on December 2, 1859.)37
Southerners also asserted that there were extra-constitutional as well as corporeal limitations on the power of government. On the other hand, Southerners believed that Congress had an obligation to protect man’s inalienable rights, and was under oath to sustain and promote them at the State level. In many respects Southerners were more Constitutionally conservative than were the abolitionists to the north. Southerners held on to the concept that it was the owner of property who possessed inalienable rights. In other words, natural rights revolved around, and was subservient to, property and wealth. Therefore, to the southerner only a select group of men were to be protected in their inalienable rights—not all human beings and/or “persons.”38 For the abolitionist natural rights did not revolve around material wealth, property, or “idols.” What they perceived to be eternal principles were involved. In other words, to the abolitionist natural rights were synonymous with liberty: rights that could not be bought or sold by any man, institution, or nation—thus, inalienable, absolute, undeniable, inherent.
The constitutional theory of southerners contained substance: man’s rights being directly attributable to the ownership of property. Abolitionists were still seeking substance through Constitutional change and the emancipation of all slaves. But the differences, while minimal to Professor TenBroek, were enormous. To the southerner, it was not just the ownership of property that qualified them to all the privileges and immunities of a citizen. It was because they were white and male. Nothing more, nothing less. When Chief Justice Robert B. Taney referred to Mr. Scott as representative of that “class of persons,” in Dred Scott v. Sanford (1857), as “a subordinate and inferior class of beings, who had been subjugated by the dominant race,” he espoused the predominate southern doctrine of racism.39 This doctrine was the heart and soul of southern constitutional philosophy, and no where did it become more manifested than in the Dred Scott decision.
In Dred Scott, Justice Taney revealed another peculiar admission: that “whether emancipated or not, [black slaves] yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the government might choose to grant them.”40 Taney admitted that it was within the scope and power of government (whether he was referring to state or national or both, scholars are not sure) to deny or grant emancipation and/or the privilege of citizenship. This was exactly the argument of Theodore Dwight Weld: that if the government had the power to justify slavery, then it also had the power to emancipate. It further buttressed Weld’s argument, that if this vague definition of government truly had the power to free the slaves, then Taney was admitting that government could justifiably assert its authority into the affairs of government. On the one hand government was attempting to preserve the Constitution. On the other, they failed to recognize that the Constitution was a broad philosophical ruler in which to guide and measure the expansion of its own institutional creation: a democratic republic in which “all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.” Alvan Stewart and James G. Birney (by 1857 both men were deceased) would have argued that these inalienable rights were not subject to any man or government.41
Can the legal scholar or historian, with any credibility, separate the issue of slavery from humanity’s inalienable rights, specifically as they are defined in the Bill of Rights? If “all men are created equal,” the term “created” plays a specific role—not necessarily in the Christian sense (nor in its disavowal), but in the legal and moral sense. At some point there is an implied beginning, a starting line, a higher natural law—inalienable—in which “all men” begin life on equal terms. Not in the genre of class-conflict typically associated with socialism, but in the sense that “all men” were born with this hope beating and burning in their breasts, whether realized or wistfully imagined at any given point in their life’s journey. Concerning these rights, Jefferson, while writing in a deistic, philosophical, sense of a higher power, stated at a later point that “We do not claim these [rights] under the charters of kings or legislators, but under the King of kings.”
The passage of the Fourteenth Amendment would satisfy the chief arguments of abolitionists at the expense of southern theories. The Civil War would confirm the American political saying, “Winner-take-all!” And while the Fourteenth Amendment did not achieve immediate results, section one put into words the central questions of 1) whether slaves were persons, and 2) who were citizens of the United States. But perhaps most important of all, section five, when understood in context of section one, asserted Congress’ right to intervene in the affairs of state governments in order to 1) augment the supreme national sovereignty of the Federal government over the states, and 2) to prevent a Civil War from ever occurring again on its soil by enforcing “the provisions of this article” through “appropriate legislation.” Congress did not give the Supreme Court this power. However, since it is the duty of the Supreme Court to interpret the Constitution, it also has the duty to preserve its developmental intent dating back to abolitionist constitutional theory, legal precedent, the historical and philosophical development and associated causes of the Civil War, its effectual outcome, and the confirmative language of the framers’ in 1866, and make it applicable for today.
In the meantime, abolitionists were still confronting three major hurdles heading into the presidential campaign of 1860 and the Civil War:
- a racist and recalcitrant South,
- a conservative and shortsighted Congress,
- and a Supreme Court that was unwilling to upset the legal status quo, and in Dred Scott actually justified racism in the name of constitutional self-restraint and original intent.
Developmental progress was slow. Abolitionists took their message to new political heights. What abolitionists desperately wanted was a president who had the balanced wisdom to advance the Constitution by championing the inalienable rights of man, and the wisdom to preserve its integrity. On April 6, 1859, one year prior to his election as President, and prior to the outbreak of the Civil War, Abraham Lincoln, in a letter to Henry L. Pierce and others in Springfield, Illinois, wrote perhaps his most striking, if not prophetic, statement: “Those who deny freedom to others desire it not for themselves; and, under a just God, can not long retain it.”42 Lincoln, while not an abolitionist, fervently hoped slavery would one day become extinct. He reminded Mr. Pierce and others that the party of Jefferson was “formed upon their . . . superior devotion to the personal rights of men, holding the rights of property to be secondary only, and greatly inferior.”43 Influenced by the writings of James Madison and Thomas Jefferson, Lincoln actually believed that the best way to end slavery in America was to either
- systematically contain slavery through legislation and thus set slavery on the road to extinction,
- to develop a separate colony, or
- export them back to Liberia, Africa.44
Abraham Lincoln’s Influence
Months after Congress passed the Kansas-Nebraska Act in 1854, Abraham Lincoln spoke in opposition to what he considered to be 1) an attempt to proliferate slavery into new territories, 2) to render an indirect assault on the preservation of national unity, and 3) to set in motion a subtle political bid to diminish the fledgling rise of the Republican Party. Illinois Senator Stephen A. Douglas (also referred to by Lincoln as Judge Douglas) wanted to ensure a northern transcontinental railroad route through the state. But he first had to get Congressional approval to organize the territory of Nebraska. Southern senators objected because the Nebraska region was just north of the Missouri Compromise line, thus making it a free state. Douglas then bargained with southern senators to 1) split the territory into the Kansas and Nebraska territories, 2) repeal the Missouri Compromise line, and 3) leave the question of whether the territories would be free or slave to the popular, “sovereign,” will of the people of these territories.
Lincoln outlined the origins of forbidding slavery in new territories in an effort to rid the nation of the practice. He argued that it was Thomas Jefferson who persuaded Virginia’s legislature, and the Continental Congress in 1787 to prohibit slavery in the Northwestern Territory. Lincoln pointed out that for sixty-one years this territory was free and that five states in 1848 still “acted in quiet obedience to this ordinance.”45 He then complained of the new light breaking on Congress which proposed to allow the expansion of slavery in the name of the “sacred right of self-government”:46
Now Congress declares this ought never to have been; and the like of it, must never be again. The sacred right of self government is grossly violated by it! We even find some men, who drew their first breath, and every other breath of their lives, under this very restriction, now live in dread of absolute suffocation, if they should be restricted in the ‘sacred right’ of taking slaves to Nebraska. That perfect liberty they sigh for—the liberty of making slaves of other people—[which] Jefferson never thought of [with regard to the expansion of slavery in new territories].47
Three years later, in Dred Scott v. Sanford (1857), the Supreme Court declared the Missouri Compromise of 1820 unconstitutional, thus declaring unconstitutional any attempt by Congress to prohibit slavery in the Territories.48 Not only was this a direct assault on abolitionist constitutional theory, crushing their dream of abolishing slavery through legislation, but it also jeopardized their efforts to strengthen national sovereignty—that to be truly sovereign the national government would need to protect the inalienable rights of life, liberty, and due process of all “persons” of a state from the state itself. For the more moderate Lincoln, the Kansas-Nebraska Act radically altered his optimism about the systematic and strategic governmental extinction of slavery in America along the lines that Jefferson envisioned.
Approximately five years before the outbreak of the Civil War, Abraham Lincoln wrote a letter to the Honorable George Robertson thanking him for his patriotic speech promoting national unity and “the peaceful extinction of slavery” during the congressional debates that effected the Missouri Compromise of 1820.49 In reflecting on that pivotal event which permitted Missouri to be admitted as a slave state in exchange for Maine to be admitted as free, and in which slavery was to be excluded from the Louisiana Purchase lands north of latitude 36E30N, except for Missouri, Lincoln admitted that “Since then we have had thirty six years of experience [which has] demonstrated, I think, that there is no peaceful extinction of slavery in prospect for us.”50 He expressed to George Robertson that the “spirit which desired the peaceful extinction of slavery, has itself become extinct,” and “so far as peaceful, voluntary emancipation is concerned, the condition of the Negro slave in America, scarcely less terrible to the contemplation of a free mind, is now as fixed, and hopeless of change for the better, as that of the lost souls of the finally impenitent.”51
Throughout our country’s history there have been principal turning points that have shaped our national experience, but none more significant than the Civil War. Whether the issue was national sovereignty versus states’ rights, the economical struggle between the mercantile and tariff-happy interests of the North and the struggling agrarian interests of the South, slavery, or racism, the most costly feature involved the principles of our Constitution. As Professor Jerome Edwards, distinguished Chairman of the History Department at the University of Nevada, Reno, has stated in class, “Wars tend to create their own Constitutions.” I prefer the reverse metaphor: “Constitutions, and the interpretations of them, tend to create their own wars.” In this case, the Civil War. Admittedly, both of these are rather simplistic assertions overshadowing a more complex conflict. Surely there is nothing inherent in a constitution that can possibly create wars, and visa versa. However, words have meaning, whether intended or not, and Article one, section two, paragraph three of the United States Constitution defines black and mulatto slaves as “three fifths of all persons.”
In Dred Scott v. Sanford (1857), Chief Justice Robert B. Taney asked,
Can a Negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guaranteed by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the constitution.52
Barely into the third paragraph of his opinion Taney declared that “The words ‘people of the United States’ and ‘citizens’ are synonymous terms, and mean the same thing,” and argued that this “class of persons” “are not included, and were not intended to be included, under the word ‘citizens’ in the constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.”53 Relying on what he perceived to be the original intent of the framers’ of 1787, Chief Justice Taney argued that black slaves were considered a “subordinate and inferior class of beings, who had been subjugated by the dominant race.”54 In other words, what is not granted by the Constitution cannot be taken away. Since the right of citizenship, let alone personhood, had never been granted, how could it be taken away? What could be more convenient than the legal justification for perpetuating racial obscurity in the name of Constitutional purity and racial superiority?
On one hand the Constitution and/or the issue of slavery was incapable of generating a Civil War. On the other, the issue of slavery augmented the prospect for a Civil War and was, in retrospect, further abetted by an activist interpretation rendered by a Supreme Court that pretended to understand the original intent of the framers, and who assumed, according to Stanley Kutler, “to resolve what the stalemated political system could not.”55 It would seem to me that the conflict at hand was not so much over a recalcitrant South who persisted on holding on to their slave-driven economy, as much as it was that both North and South, including the Federal Government and the Federal Supreme Court, could not come to terms with the question of slavery, and in a broader sense, the entire issue of human rights. Nineteenth-century culture, except for a small radical minority known as abolitionists, was not ready to come to terms with the developmental progression of their own discovery of republican forms of democracy—a republic which Thomas Jefferson penned in The Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.”56
In an unprepared speech given at Independence Hall in Philadelphia on February 22, 1861, in response to an introduction by Mr. Cuyler who “suggested” that Abraham Lincoln was the man who could save the country from unnecessary war and bloodshed, Lincoln confessed his indebtedness to Thomas Jefferson and said, “I have never had a feeling politically that did not spring from the sentiments embodied in the Declaration of Independence.” In fact, he said, “It was that which gave promise that in due time the weights should be lifted from the shoulders of all men, and that all should have an equal chance. This is the sentiment embodied in that Declaration of Independence.”57
In another speech given just shortly after the Supreme Court’s 1857 ruling in Dred Scott, Lincoln accused the Chief Justice of “obvious violence to the plain and unmistakable language of the Declaration.”58 While Lincoln admitted that its author Thomas Jefferson, did not necessarily “mean to say all were equal in color, size, intellect, moral developments, or social capacity,”59 Lincoln absolutely made the most of Stephen A. Douglas’ defense of the Supreme Court’s decision in Dred Scott in which he charged that “No man can vindicate the character, motives and conduct of the signers of the Declaration of Independence, except upon the hypothesis that they referred to the white race alone, and not to the African, when they declared all men to have been created equal—that they were speaking of British subjects on this continent being equal to British subjects born and residing in Great Britain—that they were entitled to the same inalienable rights, and among them were enumerated life, liberty and the pursuit of happiness.”60 Lincoln retorted, saying, “Why, according to this, not only Negroes but white people outside of Great Britain, and America are not spoken of in that instrument,” and even though “the English, Irish, Scotch, along with white Americans, were included to be sure,” according to Douglas’ analysis “the French, Germans and other white people of the world are all gone to pot along with the Judge’s inferior races.” Lincoln argued, “I thought the Declaration promised something better than the condition of British subjects; but no, it only meant that we should be equal to them in their own oppressed and unequal condition.”61
Lincoln not only knocked Douglas’ attempt to define the original intent of the framers’ of the Declaration of Independence, but Lincoln also revealed a progressive tendency to interpret the Declaration in a manner that advanced the much needed transformation of the cultural and human rights issues of his day. This was made apparent when he asked his audience: “I understand you are preparing to celebrate the ‘Fourth,’ tomorrow week. What for? The doings of that day had no reference to the present; and quite half of you are not even descendants of those who were referred to at that day.” Better yet, Lincoln argued, “Suppose after you read [the Declaration] in the old fashioned way, you read it once more with Judge Douglas’ version,” it would read: “ ‘We hold these truths to be self-evident that all British subjects who were on this continent eighty-one years ago, were created equal to all British subjects born and then residing in Great Britain.”62
In a letter to Henry Asbury dated November 19, 1858, two years prior to his election, Lincoln defended his realistic outlook—that Civil War was inevitable, and that Douglas’ attempt to label him as a fence riding Republican had helped Douglas to win that particular debate. But Lincoln made it clear that he refused to surrender the fight for civil liberty. He admitted that the abolitionist’s attempt to contain slavery, and the south’s insistence that each state (especially new territories and states) should be allowed to determine their own destiny based on the Kansas-Nebraska Act—whether to be free or slave—could not remain in harmony without an “explosion.” Lincoln wrote:
The fight must go on. The cause of civil liberty must not be surrendered at the end of one, or even, one hundred defeats. Douglas had the ingenuity to be supported in the late contest both as the best means to break down, and to uphold the Slave interest. No ingenuity can keep those antagonistic elements in harmony long. Another explosion will soon come.63
Lincoln was hoping that slavery would die out, that the Constitution would sustain itself.64 But he also believed that “the promulgation of abolition doctrines” tended to “increase” the evil of slavery.65 When the Missouri Compromise was repealed by the Kansas-Nebraska Act in 1854, which allowed for popular state sovereignty regarding slavery in Kansas and Nebraska—even though both states were north of the compromise line established in 1820—Lincoln urged his colleagues to stand for what was right, even if it meant risking appearing to side with abolitionists in their attempt to restore the Missouri Compromise in order to contain the spread of slavery.” But he also advocated that it was right to oppose attempts to repeal the Fugitive Slave Act of 1850, even if it meant risking the appearance that they were siding with “the southern disunionist.” At that time Lincoln argued that in both cases they would be right. To take such controversial stands, he argued, was to “oppose dangerous extremes” and was to preserve America’s national identity.66
In his first Inaugural speech Lincoln mentioned that he was entering his “brief constitutional term of four years under great and peculiar difficulty,” one in which “a disruption of the federal Union, heretofore only menaced, is now formidably attempted.”67 What president is not effected by the political climate at the time of their service? In Lincoln’s case it was an extraordinary political climate, because Fort Sumter in Charleston, South Carolina, was fired on only five months into his presidency on April 12, 1861. National unity was more important to Lincoln than anything. Yet the plight of the Negro race did not go unnoticed, and as the Civil War loomed on the horizon Lincoln began to realize that the only way for national unity to be restored was to abolish slavery at the national level. While Lincoln’s later desire to emancipate them was not immediate, this conviction proved to be the key to restoring national unity.
By standing for what was right, Lincoln provided moral force to the Union troops with his Emancipation Proclamation Act. Lincoln’s Emancipation Proclamation in 1862 benefited “a well-regulated militia” so very “necessary to the security of a free State” by arming emancipated black slaves. It was also morally expedient, because for the first time in our nation’s history Lincoln empowered the black man with the essential Second Amendment right to “keep and bear arms.” This would not only demoralize the Southern rebels, it would cripple them. What did they have left to fight for? Was not the Civil War the result of a slowly brewing conflict over the issue of slavery dating back to the Constitutional foundations of our country? I believe Lincoln’s attempt to do what was right provides a significant piece of the puzzle when it comes to understanding the developmental progression and the often conflicting saga of human rights in America prior to the Civil War.
While it is true that Lincoln never admitted to being an abolitionist, largely for political reasons, the evidence provided in his speeches suggest that Lincoln was indirectly influenced by abolitionist constitutional theory. Even though Lincoln never realized the fruits of his work, the abolishment of slavery through the ratification of the thirteenth amendment in 1865 buttressed his continual use of the phrase that “all men are created equal” contained in the Declaration of Independence, and echoed the abolitionist position that slavery was not only inhumane, but also deprived the black race of “certain inalienable rights, among which are life, liberty, and the pursuit of happiness.”
In his first Inaugural speech delivered on March 4, 1861, a similar echo was expressed. Lincoln quoted the Fugitive Slave clause of Article IV, section 2, of the Constitution, which enabled slave owners to capture and reclaim their runaway slave. He re-opened the debate as to “whether this clause should be enforced by national or by state authority.” Lincoln then asked a suggestive two-pronged question:
1In any law upon this subject, ought not all the safeguards of liberty known in civilized and humane jurisprudence to be introduced, so that a free man be not, in any case, surrendered as a slave? 2And might it not be well, at the same time, to provide by law for the enforcement of that clause in the Constitution which guarantees that “the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states?68
This “declaratory” phrase would eventually make its way into section one of the fourteenth amendment, which not only declared that “all persons born or naturalized in the United States . . . are citizens of the United States and the State wherein they reside,” but also declared that “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.” Lincoln’s suggestion provided a curious foreshadowing of the arguments presented by Congressman John A. Bingham when drafting section one of the fourteenth amendment.
The Fourteenth Amendment: The Long-Awaited Arrival
In the aftermath of the Civil War the former slave states enacted regulatory statutes that came to be known as the “Black Codes.” In an attempt to regulate the legal and constitutional status of black people during the interim between the northern/federal reconstruction of the south, southern state legislatures specified the terms of their “free” status: “The right to buy, sell, own, and bequeath property; the right to make contracts; the right to contract valid marriages, including so-called common-law marriages, and to enjoy a legally recognized parent-child relationship; the right to locomotion and personal liberty; the right to sue and be sued, and to testify in court, but only in cases involving black parties.”69 Prior to the drafting of the Fourteenth Amendment in Congress, this served as a practical mechanism by Southerners to continue to control and subjugate their freed slaves. For example, the right to buy, sell, own, and bequeath property while specified broadly, was never defined, and varied from state to state. Slave owners stipulated, usually by word of mouth (from owner to slave) that freedmen could rent land only in rural areas. This was used as a means to keep them on the plantation so that they could continue to benefit from their labor, and in many cases to continue to abuse their women.
The Codes merely perpetuated the former laws regarding slavery:
They provided detailed lists of civil disabilities by recreating the race-control features of the slave codes. They defined racial status; forbade blacks from pursuing certain occupations or professions; prohibited blacks from owning firearms or other weapons; controlled the movement of blacks by systems of passes; required proof of residence; prohibited the congregation of groups of blacks; restricted blacks from residing in certain [well-to-do] areas; and specified an etiquette of deference to whites, such as by prohibiting blacks from directing insulting words at whites.70
The Codes also prohibited racial intermarriage (which wouldn’t be against Lincoln’s wishes) and swiftly executed the death penalty for blacks raping white women, while at the same time omitting any passages about white men raping black women.71 The list goes on and on! Somehow, the reader of history would think that the South would have learned their lesson after losing the Civil War. But habits change slowly.
The Fourteenth Amendment has had a long road, before its inception, and after its ratification. Questions that are appropriate at this point of our discussion: What took place during the Fourteenth Amendment proceedings in the 39th Congressional Session of 1866? How did the Republican domination effect the outcome, and were the debates really that intense? What was intended by the language in sections one and five? More importantly, was it the framers’ intent to incorporate the Bill of Rights into the Fourteenth Amendment and make them applicable to the States? And of immediate interest, in what respect did the Congressional debates and subsequent ratification of the Thirteenth Amendment influence the need for a Fourteenth?
The Thirteenth Amendment
During the Senate and House debates over the Thirteenth Amendment, concerned Congressmen, led by William Higby, questioned how much power Congress would think to assume over the states in their procedural regulation of Reconstruction, and their application of the Bill of Rights in the South.72 On the other side of the isle, Congressman Arnold, and Congressman John A. Bingham from Ohio, argued in the Thirty-eighth Congress that any adherence to the Constitution had relatively disappeared in the slave states. They cited state denial of liberty of speech, freedom of the press, and trial by jury, all secured by the Bill of Rights.73 In the Thirty-seventh Congress, during the Emancipation debates, John Bingham made the distinction that the Bill of Rights protected all “persons,” while the Magna Carta protected only “freemen.” In his defense of the proposed Thirteenth Amendment, Bingham utilized the due process clause contained in the Fifth Amendment to require the federal government to grant all peoples in its exclusive jurisdiction protection of the laws. He said, “I would have the declaration made here now . . . that no man shall ever . . . where our power of legislation is supreme, be deprived of his life, of his liberty, or of his property without due process of law; and that slavery or involuntary servitude shall never be tolerated here in all the hereafter, except as punishment for crime upon due conviction.”74 This provided Bingham with a smooth transition for justifying the need for a Fourteenth Amendment, which certified that the federal Bill of Rights would indeed be applied and enforced by Congress throughout all the contiguous states.
The Fourteenth Amendment as Transition
Speeches by James Garfield, Jacob Howard, John Bingham & House Debates
The debate over the Fourteenth Amendment was far more complex, but it would center around similar questions and justifications. When researching The Reconstruction Amendments’ Debates from the Congressional Globe, there are several speeches that ramble, and a few that catch the researcher’s attention. Among those that catch the reader’s attention are by Congressman James Garfield, future president from Ohio, Senator Jacob Howard and Ohio Representative John A. Bingham. The first is a speech given by James Garfield. Garfield argued that the Bill of Rights limited the states:
In reference to persons, we must see to it, that hereafter, personal liberty and personal rights are placed in the keeping of the nation; that the right to life, liberty, and property shall be guaranteed to the citizen in reality as they are now in the words of the Constitution, and no longer left to the caprice of mobs or the contingencies of local legislation. If our Constitution does not now afford all the powers necessary to that end, we must ask the people to add them. We must give full force and effect to the provision that ‘no citizen shall be deprived of life, liberty, or property without due process of law.’ We must make it as true in fact as it is in law, that ‘the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States.75
Senator Howard Jacob, in a speech before the Senate, argued that Section one of the proposed Fourteenth Amendment “is a general prohibition upon all the States [not just the South], as such, from abridging the privileges and immunities of the citizens of the United States.” Howard specified that “it also prohibits each one of the States from depriving any person of life, liberty, or property without due process of law, or denying to any person within the jurisdiction of the State the equal protection of the laws.”76 When Howard referred to the privileges and immunities clause contained in Article IV, section 2, of the Constitution, he specifically attached “the first eight amendments” as a working definition:
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 . . . .77
This is the most definitive statement in all the debates that suggested that the first eight amendments should be incorporated into the first section of the Fourteenth Amendment. The best argument occurred when Senator Howard argued: “There is no power given in the Constitution to enforce and to carry out any of these guarantees.” He again made reference to the first eight amendments to the Constitution, but connected the provisions of the first section to a fifth section, which made the Bill of Rights applicable to, and enforceable on, the states by Congress. He argued that the provisions in the first section “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,” he insisted,
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? . . . . 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.78 (Senator Howard enumerates these rights, making clear the intention of his persuasive appeal – See footnote.)
To relieve Southern fears—that their property rights under States’ rights would not be jeopardized—Senator Howard argued that the Fourteenth Amendment (even though the amendment does not say) was also applicable to the National Government, that the specifications contained in the first section were restrictions upon the National Government as well as upon the States.79 Southerners did not put much faith behind such rhetoric during Reconstruction. To them, property rights were more important than life.
Congressman John A. Bingham was an Ohio lawyer and a radical Republican. Radical, because he was an abolitionist in constitutional theory, and thus carried with him ideas synonymous to incorporation. Bingham was the author/drafter of the first section of the Fourteenth Amendment (and prior to this served as special prosecutor to the military commission trying the accused conspirators involved in the assassination of Lincoln).
Representative Bingham made very clear what his intentions were with section one in a speech on the House floor on May 19, 1866, just prior to a vote taken on the whole body in regard to the passage of the entire Amendment. (The Amendment passed by the margin of 128 to 37, and on June 8 it passed the Senate 33 to 11.) Bingham argued that there was something desperately lacking in the very function of the Federal Bill of Rights. He was concerned that they had become a “dead letter”.80 He argued that there was a “want” (or lack) in the Constitution which explained “the necessity for the first section of this Amendment.” That “want”
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.81
Representative Bingham sighted examples of state abuses. He said, “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.”82 He referred his listeners to the Eighth Amendment to which “cruel and unusual punishments” were commonplace in state governments; and this, he said was the reason why the Fourteenth Amendment was necessary. Mr. Bingham was not, as some scholars argue, referring to freedmen only. Bingham provided examples of numerous state violations of the right to a jury trial for both blacks and whites; due process, privileges and immunities. He argued that it was absolutely necessary for the Federal Government to guarantee the fundamental civil rights specified in the “immortal Bill of Rights,” and that there was no “colorable excuse for any man North or South” to claim “that any state legislature . . . court . . . or executive, has any right to deny protection to any free citizen of the United States within their limits” and/or to any “human being.”83 (Congressman Thaddeus Stevens, who took a leading role in the formation of the Republican party, and was then chairman of the Ways and Means Committee in the House, proposed a project that involved providing freed slaves with forty acres and a mule. His proposal failed. Too bad!)84
The debates that took place prior to Bingham’s closing speech involved Jonathan Hale’s and William Higby’s arguments objecting to any inferred language that would grant Congress the power to destroy state legislative freedom of any sort. The guarantees enumerated in the first section were to be equal guarantees rather than absolute rights conferred upon a radical, power-hungry, Republican Congress over the States.85 Thus section one was stripped of any reference to the power of Congress over the States. However, this was achieved in section five which gave Congress the power to enforce all the guarantees and provisions of the Fourteenth Amendment. Therefore, I am not sure that Mr. Hale and Mr. Higby achieved anything significant.
Throughout the Congressional debates on section one, Bingham had many supporters who argued in favor of making applicable the first ten amendments upon the states. Bingham’s most significant statement during the actual debates makes reference specifically to the enforcement of the Bill of Rights by Congress upon the states. Bingham challenged those “who oppose[d] this amendment” by accusing them of simply “oppos[ing] the grant of power to enforce the bill of rights.”86
In his book The Morality of Consent Alexander Bickel suggests that not only did section five of the Fourteenth Amendment transfer the guardian power to Congress, but also to the Supreme Court, which, borrowing from Justice Samuel Freeman Miller’s warning in the Slaughterhouse Cases (1873), “would be constituted ‘a perpetual censor upon all legislation of the states’ dealing with social and economic affairs, ‘with authority to nullify [any regulation enacted by a state that the Supreme Court] did not approve’ “ (83 U.S. 16 Wallace 73 ).87
With only a surface reading, very little reference is made to the function of the Supreme Court throughout the entire debates—what jurisdiction they had, and so on. To all appearances Congress assumed that their function rested solely in interpreting the Constitution. But, in fact, their assumptions were quite the opposite.
During the ratification process at the state level, John Bingham was concerned that the Supreme Court would attempt to act contrary to the wishes of a congressional majority:
The original jurisdiction of that court is very restricted . . . by the terms of the Constitution. Their appellate jurisdiction . . . depends exclusively upon the will of Congress. If [members of Congress] are at all apprehensive of any wrongful intervention of the Supreme Court . . . sweep away at once their appellate jurisdiction in all cases . . . Do that, and let that court hereafter sit to try only questions affecting ambassadors, other public ministers and consuls, and questions in which a State shall be a party, as that is the beginning and end of its original jurisdiction.88
Representative Bingham makes it very clear that he is not supportive of any sort of activistic attempts by the Court to declare the Fourteenth Amendment unconstitutional. The Congressional Globe does not reveal why Bingham would be alarmed. Congress had just approved the most enormous appropriation of judicial authority in Constitutional history in order to guard against any congressional or state action that would legally, illegally, or otherwise hinder an individual’s rights.
Eric Foner points out the immediate context behind Bingham’s threat to the Supreme Court by suggesting that one month earlier, the Supreme Court had decided Ex parte Milligan which challenged
- the military trial of civilians, and
- questioned the credibility of (reconstructed) southern legislatures to participate in the ratification of the Fourteenth Amendment.89
With Milligan, as Robert Burt points out, Bingham became paranoid and even “threatened to decimate the Court’s jurisdiction, and even ultimately to abolish it, unless the Court acquiesced in the ultimate ratification of an amendment granting it ostensibly transcendent authority over the actions of the national and state governments.”90 (Bingham must have forgotten the assurances of Alexander Hamilton in the Federalist papers, that “The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution” [Federalist #78].) Burt also points out that, “Within a year an extensive series of measures were proposed in the Congress (and some were adopted) to curb judicial power.” The following measures were not only interesting, but to the constitutional historian, curious:
- In 1868 Congress repealed the Court’s jurisdiction to hear appeals in federal habeas corpus proceedings alleging constitutional violations. Ex Parte McCardle (1869).
- The House approved a measure requiring two-thirds vote of the Court to invalidate any congressional act. Congressional Globe, 40th Congress, 2d. Sess. 489 (1868).
- Representative Bingham further suggested reducing the Court’s membership to three, so that the two-thirds rule would necessarily follow. Ibid, at 483-484.
- Bingham’s suggestion built on the precedent established by Congress in 1866, one month after its approval of the Fourteenth Amendment, reducing the Court membership from ten to seven, effectively barring any nominations from President Andrew Johnson. See 2 Warren at 421-22.
- Representative Garfield justified this measure as lifting the Court “beyond the reach of the plots and machinations” of the President. After Grant’s inauguration, the Court was restored to nine members. Act of April 10, 1869, ch. 22, 16 Stat. 44.91
The southern concept of property continued to prevail over personal rights in the courts, and especially in the Supreme Court. Even after the ratification of the Fourteenth Amendment, which empowered the Federal government to protect the citizens of a state from the state itself, the amendment’s impact was largely economical and, as Professor Bernard Schwartz shrewdly describes, was “converted into a Magna Carta for business.”92
The Slaughterhouse Cases
In the first test case involving the Fourteenth Amendment, southern leaders seized the opportunity to turn the Amendment primarily into an issue of property and governmental intrusion in the Slaughter House Cases (1873). Representing the plaintiffs, retired Supreme Court Justice John A. Campbell declared that the Louisiana legislature violated the privileges and immunities clause, the equal protection clause, and deprivation of property without due process of law clause of the Fourteenth Amendment, when they passed a statute “to protect the health of the City of New Orleans [and] to locate stock-landings and slaughter-houses” (16 Wallace 36 .) The intent of the statute, Campbell argued, was to monopolize and exclude all other competing interests by incorporating one slaughter-house company and giving the company exclusive operating privileges for twenty-five years. According to Charles Fairman, the late Constitutional scholar from Harvard.
The case raised for the first time that passionate issue, whether the Reconstruction Amendments had worked such an alteration in the federal system as to vest the Supreme Court the power and duty to strike down state action which seemed unreasonable to a majority of the justices.93
Justice Samuel Freeman Miller led the majority opinion and concluded that it was not the Federal Judiciary’s jurisdiction to rule on state matters, and that the Fourteenth Amendment was only intended to prevent discrimination against Negroes.94 On the dissenting side were Chief Justice Chase, Justices Swayne and Bradley, and Judge Stephen A. Field. Justice Field led in the dissent and ruled that the “privileges and immunities of citizens” clause involved “the sacred and impressible rights of man.” The Fourteenth Amendment, he wrote, “was intended to give practical effect to the declaration of 1776 of inalienable rights, rights which are the gift of the Creator; which the law does not confer, but only recognizes.”95
A curious incident arose as a result of this case which has been relied on by Charles Fairman and other scholars. Congressman Roscoe Conkling was a former member of the Joint Committee on Reconstruction in 1866, and served with Congressman John A. Bingham of Ohio, the draftsman of section 1 of the Fourteenth Amendment. In 1882, Mr. Conkling came forward and claimed that the drafters of the Fourteenth Amendment had devised two separate and distinct functions:
- to protect the civil rights of the freedman, especially after President Andrew Johnson attempted to veto the Civil Rights Act of 1866, and
- to “increase and strengthen the safeguards of the Constitution and the laws” for all “persons,” corporate and organic.
Mr. Conkling’s chief evidence for intent came when he argued, “At the time the Fourteenth Amendment was ratified . . . individuals and joint stock companies were appealing for congressional and administrative protection against invidious and discriminating State and local taxes.”96 From this, according to Jay Howard Graham, Conkling inferred “that the Committee had taken cognizance of this situation and that a desire to protect corporations had been the real explanation for maintaining the distinction between ‘citizens’ and ‘persons.’ “97
Mr. Conkling also subtly asserted by his corporate and property rights interpretation of the framers’ original intent, that Congressman John A. Bingham also intended this outcome as revealed by his speeches in the House of Representatives. Professor Howard Jay Graham rejects Conkling’s conspiracy theory: that the framers of the Fourteenth Amendment aimed to aid business interests when they devised the due process and equal protection clauses. He brings up three arguments of his own:
First, . . . such a declaration virtually demands as its major condition that John A. Bingham and the other members of the Joint Committee regarded due process of law as a restraint upon the substance of legislation at the early date of 1866, whereas due process was at this time, with a few striking exceptions, merely a limitation upon procedure. The theory thus presupposes that the drafters assumed what was really an extraordinary viewpoint: it endows them with remarkable insight and perspicacity.
The second objection is that, as an apparent explanation of the Committee’s choice of the word “person” was really the term employed in the Fifth Amendment, the phraseology of which Bingham simply copied. Further, in line with this last point is the fact that “persons,” as a generic term and as a device employed in the original Constitution to refer to Negro slaves, clearly included “persons” of the Negro race and may logically have been preferred for this reason, since grave doubt existed as to whether Negroes were “citizens” [at that time due to the Dred Scott decision], and troublesome problems of definition arose if one tried to speak of them in still more precise terms.98
”Granted,” Graham argues, “that [John] Bingham’s speeches reveal a solicitude for property rights not found in the speeches of his colleagues, granted that his drafts of the Amendment were couched in much broader language than those of his associates—in language which today ‘takes in the whole range of national economy’ [quoting Conkling]—still, it hardly follows that Bingham in 1866 was thinking of corporations as the beneficiaries of his drafts, nor that he regarded due process in the modern substantive sense. He may, conceivably, have used the words ‘any person’ merely as a sure means of including Negroes as well as whites; he may also have used ‘due process of law’ as a sure means of guaranteeing fair trial and fair procedure to all natural persons.” “In fact,” Graham argues (when referring to abolitionist concepts of “persons”), “so long as these were the prevailing usages down to 1866 one is hardly warranted in attributing a more subtle or comprehensive purpose to Bingham without definite, positive evidence.”99
By reasserting the southern constitutional theory that private and corporate property was a right to be more valued than personal rights, the Slaughterhouse Cases would be the take-off point, and perhaps the (debilitating) crash site, for years to come when it came to Fourteenth Amendment precedent. Even as late as 1922, a federal judge asserted in Children’s Hospital v. Adkins (1922), that, “of the three fundamental principles which underlie government, and for which government exists, the protection of life, liberty, and property, the chief of these is property” (284 Fed. 613, 622 [D.C. Cir. 1922]).
In Palko v. Connecticut (1937), Justice Hugo L. Black argued that the first eight amendments to the Constitution should be incorporated into the Fourteenth Amendment. He argued the same in his dissent in Adamson v. California 1947, in which he declared:
My study of the historical events that culminated in the Fourteenth Amendment, and the expressions of those who sponsored and favored, as well as those who opposed its submission and passage, persuades me that one of the chief objects that the provisions of the Amendment’s first section, separately, and as a whole, were intended to accomplish was to make the Bill of Rights, applicable to the states. With full knowledge of the Barron decision, the framers and backers of the Fourteenth Amendment proclaimed its purpose to be to overturn the constitutional rule that case had announced. This historical purpose has never received full consideration or exposition in any opinion of this Court interpreting the Amendment (332 U.S. 46, 71 ).
Justice Black argued for absolute “incorporation,” and declared that, “Long ago [I] concluded that the accordion-like qualities of this philosophy [what he cites as “the use of philosophy to nullify the Bill of Rights] must inevitably imperil all the individual liberty safeguards specifically enumerated in the Bill of Rights.” He claimed that “Reflection and recent decisions of this Court sanctioning abridgment of the freedom of speech and press have strengthened this conclusion” (Adamson v. California 332 U.S. 46, 123 ). Justices Felix Frankfurter and Benjamin Cardozo, in Palko argued instead for a case-by-case examination involving the Fourteenth Amendment and each Bill of Right at question. Justice Frankfurter would dub this the “fundamental fairness” test. Justice Cardozo referred to this as the “process of absorption”—referred by today’s Court as “selective incorporation.” In Palko, Justice Cardozo reasoned that, Whatever would be a violation of the original Bill of Rights (Amendments 1 to 8) if done by the federal government is now equally unlawful by force of the Fourteenth Amendment if done by a state (302 U.S. 319 ).100
But, a majority agreed that “There is no such general rule,”and thus repudiated Justice Black’s theory of total incorporation.
Since 1925 the Court has systematically and selectively incorporated the Bill of Rights into the Fourteenth Amendment and made them applicable to the States. Note the following list:
- 1925 Freedom of Speech – Gitlow v. New York
- 1931 Freedom of the Press – Near v. Minnesota
- 1932 Fair Trial – Powell v. Alabama
- 1934 Free Exercise of Religion – Hamilton v. Regents of the Univ. of California
- 1937 Freedom of Assembly – DeJonge v. Oregon
- 1942 Right to Counsel – in capitol cases Betts. v. Brady
- 1947 Separation of church and state: right – Everson v. Board of Education against establishment of religion.
- 1948 Public Trial – In re Oliver
- 1949 Right against unreasonable searches – Wolf v. Colorado and seizures.
- 1961 Exclusionary rule as a deterrent to – Mapp v. Ohio unreasonable searches and seizures.
- 1962 Right against cruel & unusual – Robinson v. California punishments.
- 1963 Right to counsel in felony cases – Gideon v. Wainwright
- 1964 Right against self-incriminatio – Mallow v. Hogan
- 1965 Confrontation of witnesses – Pointer v. Texas
- 1965 Privacy (new doctrinal “right”) – Griswold v. Connecticut
- 1967 Speedy Tria – Klopfer v. North Carolina
- 1967 Compulsory process to obtain witness – Washington v. Texas
- 1968 Jury Trial for all serious crimes – Duncan v. Louisiana
- 1969 Right against double jeopardy – Benton v. Maryland
- 1972 Right to counsel for all crimes – Argersinger v. Hamlin involving a jail term.101
On June 16, 1866, the Fourteenth Amendment was sent to the states for ratification. The process of ratification provides a unique picture of its own making. By year’s end the legislatures of twelve states had started proceedings. What made the proceedings interesting was the fact that the Southern States were required by the Fourteenth Amendment to fulfill two major obligations before they could be admitted back into the Union, and before they could be represented in Congress: 1) They must accept the Amendment as written and ratify it, and 2) frame new constitutions in harmony with its language. This nurtured continued recalcitrance on the part of the Southern States. By January of 1868 only one Southern State—Tennessee—had ratified. As Joseph James argues in The Ratification of the Fourteenth Amendment,
Approval by that region finally hinged on accepting a different system than that which had prevailed before the war in order to stabilize society and enable an economic system to function again. Southerners responded unhappily to the application of force and the desire for peace rather than to any real support for the amendment. Ratification was reluctantly accepted as the price required for other developments deemed absolutely necessary.102
To make matters worse, President Andrew Johnson met with the provisional governors of five southern states to discuss a counter-proposal to be decided upon at a national convention in order to make the Fourteenth Amendment a little more acceptable and thus easier to ratify. The process had actually been spurred by Senators from the North: Senator Richard Baber from Ohio, and Senator Doolittle of Wisconsin. They believed that ratification in the South was virtually impossible, especially when Alabama initially refused to even give the Amendment a hearing, and when Alabama and most of the Southern States had not ratified by June of 1868.
The counter-proposal represented more of a dissatisfaction with representation as defined in section three, and with Congress’ outright elimination of the debt. With representation because they believed that the number of representatives should be apportioned according to population figures only, and with no restrictions based on the past rebellion. The difference in debt-relief proposals become clearer when comparing the counter-proposal in section four with the original:[Original] The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. (Section Four) [Counter] The validity of the public debt of the United States authorized by law, including debts incurred from payment of pensions and bounties for services in suppressing insurrection shall not be denied.103
The counter-proposal may seem insignificant, especially since it did not gather steam. But it certainly ruffled tempers among radical Republicans in Congress who feared that a conspiracy was on foot to derail the amendment. This unnecessarily delayed proceedings in the South, and caused the radical Republicans to put more pressure on President Johnson to get behind the original proposal and to encourage the process in the South instead of fostering another insurrection.104
Radical Republicans argued that it did not matter if the South ratified the amendment in order to become law; they were not yet reinstated to the Union. But then another snag occurred. It was not just the South who began to have problems with the ratification process. After ratifying, the Ohio and New Jersey legislatures decided to withdraw and to rescind approval of the amendment. Their legislatures argued that the proposed amendment had not yet received the approval of three-fourths of the state legislatures, that “the constitutional right of the State to withdraw its assent is undeniable.” The main concern of both the New Jersey and Ohio Democrats was that section one would make the Supreme Court the final authority in all civil right controversies at the local state level. The charges were specifically aimed against the congressional policies of the radical Republicans, and surprisingly, the amendment itself. Some of the charges indicated signs of racism, disapproval of the inalienable rights guarantees in section one, an overly powerful Judiciary, and unnecessary congressional power over the States. Professor James outlines New Jersey’s complaints:
- Unwarranted exclusion of eighty representatives of eleven [Southern] state
- Expulsion of a member of the Senate from New Jersey without justification
- Use of the power thus acquired to pass unconstitutional acts [Section One?]
- Use of the cabinet against the President
- Limitation of the power of the judiciary [Interesting!]
- Interference with the exercise of the pardoning power of the executive [How?]
- Imposition of “new prohibitions upon the power of the States to pass laws and interdicts the execution of such parts of the common law as the national judiciary might deem inconsistent with the vague provisions of the said Amendment,” deliberately vague in order to “facilitate encroachment” upon the life, liberty, and property of the people [Section One Again?
- New apportionment of representation to secure votes of “a servile and ignorant race” to outweigh intelligent voices in Congress [Racism in the North?! Was the Civil War fought in vain?]
- Demand that New Jersey adopt impartial suffrage to support the transfer of total power over suffrage to Congress.105
On the very day that Representative John Bingham of Ohio was introducing his resolution in Congress to declare the successful ratification of the Fourteenth Amendment, Ohio was rescinding their resolution for ratification. Senator Charles Sumner from Massachusetts successfully argued that “the assent of the State once given is final.”106 The Senate Committee on the Judiciary Committee agreed, and their petitions to rescind were ignored. Secretary of State William H. Seward then signed the concurrent resolution on the 21st of July, 1868, certifying “that the proposed amendment has been adopted [by] . . . more than three-fourths of the States of the United States.”107 Instead of recognizing the fact that Mississippi, Virginia, and Texas had not ratified, and would not until 1870, and instead of recognizing Ohio’s and New Jersey’s resolutions to rescind their support for the amendment, jeopardizing the three-fourths ruling—to save face, and to augment the restoration of the Union, William Seward signed the concurrent resolution certifying that the Fourteenth Amendment had become law. No other amendment in our history had had such an uphill battle as the Fourteenth. Neither had an amendment been so thoroughly forced down the throats of the states.
Perhaps the most interesting aspect of the ratification process involved Georgia. It sheds a glimpse of light on the question of the perceived original intent by the Georgia legislature. Georgia was not recognized as a state until 1870 even though the state had ratified the Fourteenth Amendment on July 21st, the same day that the Secretary of State had certified its passage and enforcement. Georgia had not learned its lesson about bigotry and racism. During reconstruction, Georgia had intentionally failed to mention the freedman’s right to hold public office. Professor James argues that “legalistic legislative leadership seized on this point to rid the General Assembly of black members.”108 A House resolution on August 26 led them to expel two black assemblymen on September 3, 1868. Another black senator by the name of Aaron Bradley was expelled on September 16 because he had once held a criminal record in New York.
Governor Bulloch protested their removal and appealed to Congress. Congress sat on the situation for an entire year. But in 1870, Congress intervened and demanded that Georgia’s legislature remove the disqualified whites and reseat the black members before it could be readmitted into the Union. Congress also stipulated that their re-admittance depended on re-ratifying the Fourteenth Amendment and upon the ratification of the Fifteenth Amendment. On July 15, Georgia had achieved both and were readmitted.
What makes the Georgia circumstance interesting is the fact that some scholars, like Charles Fairman, used the legislative debates in the South to prove that the framers’ never intended to incorporate the Bill of Rights and enforce them on the States. If the South understood this to be the intent, the Southern States would have never ratified the Fourteenth Amendment. He argues that they likely would have chosen to preserve what remnant was left of their sovereign rights as a state (which they did anyway). He argues that because they so quickly complied was an indication that they were not aware of any incorporation: “The very fact that the proposed Amendment was so readily accepted by so many legislatures is on its face enough to throw grave doubt on the theory that it incorporated Amendments I to VIII.”109
But Professor Fairman misses a key point. Sudden and quick compliance to ratify does not exactly support the theory that Southern legislatures “readily accepted” the conditions specified by the Fourteenth Amendment. He whitewashes over the fact that it took the southern states considerably longer to ratify, with seven of the eleven southern states ratifying under considerable Reconstruction pressure in July, and just a few days before Seward’s certification. The reasons are fairly obvious.
- Reconstruction of Southern governments took time, and
- their reluctance to accept the Fourteenth based on the fact that the United States Congress would be given far more power to intervene in their internal affairs than the Constitution had originally granted.
This was evidenced not only by Georgia’s continuation of racist principles in their legislature and by their coincidental failure to include the right of black men to hold public office. Their action directly assaulted the “privileges and immunities of citizens” clause in section one. This did not reveal a transformative spirit. (Neither would we expect it to be. Human nature, as well as governments, are slow to accept change. While Georgia is only one state, Georgia’s example was arguably representative of the reluctance inherent throughout the South.
Likewise, there was reluctance in the North. New Jersey revealed racist sentiments and intimated their disapproval of section one when they attempted to rescind. They complained that the new apportionment of representation meant to secure votes of “a servile and ignorant race,” outweighed intelligent voices in Congress. They also intimated that section one gave Congress inordinate power to pass what they considered to be unconstitutional acts. They also accused the radical Republicans in Congress of imposing “new prohibitions upon the power of the States to pass laws that interdict[ed] the execution of such parts of the common law as the national judiciary might deem inconsistent with the vague provisions of the said Amendment.” They accused Congress of making section one deliberately vague in order to “facilitate encroachment” upon the life, liberty, and property of the people. Contrary to Fairman’s argument, it does not appear that New Jersey, Ohio (and later Oregon), or Georgia, “readily accepted” passage of the Fourteenth Amendment.
Charles Fairman even cites the objections of the minority (112 out of 319) of New Hampshire’s legislature who objected to section one of the Fourteenth Amendment. Note specifically the connection between their claim that Congress was forcing “Negro suffrage upon an unwilling people” and the implied inference that Negroes are not necessarily entitled to “the privileges of citizens,” thus indicating their rejection of the concept of incorporation when applied to enumerated rights:
5. Because the proposed amendment is ambiguous or contradictory in its provisions, first section prohibiting any State from abridging the privileges of citizens of the United States, the right of suffrage being claimed as one of those privileges, and the second section, by inference, allowing the States to restrict the right of suffrage if willing to submit to the consequent disabilities.
6. Because said amendment is a dangerous infringement upon the rights and independence of all the States, north as well as south, assuming as it does, to control their legislation in matters purely local in their character, and impose disabilities upon them for regulating, in their own way, the right of suffrage—clearly a State right—a right vital to the theory of our government, and most carefully guarded by the framers of the Constitution.
13. And finally, because the only occasion and real design of the proposed amendment is to accomplish indirectly what the general government has and should have no power to do directly, namely, to interfere with the regulation of the elective franchise in the States, and thereby force Negro suffrage upon an unwilling people.110
I agree with Professor Fairman’s assessment that such examples possibly indicate that incorporation of the Bill of Rights was not necessarily intended, based on the objections cited above. On the other hand, it can be plausibly argued that such examples provide an indication that the minority of New Hampshire’s legislature who opposed the resolution, opposed it for the very reason that they believed they had detected that the incorporation of the Bill of Rights was exactly what the framers’ of the 39th Congress had intended.
However, further evidence reveals that the majority of the State Legislatures did not express displeasure—implied or explicit—with section one, but in fact overwhelmingly approved of it. This could mean that they either approved it because 1) they understood congressional intent, or 2) failed to realize the full import of section one. The latter appears to be the case, especially when only two northern states objected to what they perceived to be 1) overt congressional power over the states, and 2) covert Judicial supremacy over the states—possibly due to their perception that the incorporation of the Bill of Rights was exactly what the framers’ intended. The first perception is documented; the second-half of the second perception is an assumption lacking empirical evidence.
Each of the state Governors wrote letters recommending approval, and in language suggesting that they understood, at least passively, the concepts and applicability of section one of the Fourteenth Amendment. (See the following treatise by Charles Fairman, beginning on page 83.) Therefore, Fairman’s treatise in the Stanford Law Review titled “Does the Fourteenth Amendment Incorporate the Bill of Rights?” is rather inconclusive. (Fairman attempted to discredit Justice Hugo Black’s assertion in Adamson v. California  that the Bill of Rights were absolutely intended by the framers’ to be incorporated into section one of the Fourteenth Amendment.)
Summary and Conclusion
The historiographical discussion of original intent is not dependent upon Justice Black’s or Charles Fairman’s polarizing arguments back in 1947. I am not sure that original intent can be found. What is ascertainable is the developmental progression of abolitionist constitutional theory, Abraham Lincoln’s integral influence prior to, and during, the Civil War, and the subsequent carryover into the congressional deliberations over section one of the Fourteenth Amendment.
Was it the framers’ intent, during the 39th Congress in 1866, to incorporate the Bill of Rights into the Fourteenth Amendment and thus make them applicable to the States? When examining Senator Jacob Howard’s speech carefully, his suggestion to make the first eight amendments constitutionally applicable to the States, with Congressional power to enforce, is fairly clear. John Bingham declares the Bill of Rights “immortal,” and specifically mentions two of the Bill of Rights and the comity clause found in Article IV, section 2, regarding the “privileges and immunities of citizens” clause. The Eighth Amendment is mentioned when he refers to the “cruel and unusual punishments” clause; and the Fifth concerning the “due process of law” clause. While it would appear that Bingham’s role indicates that selective incorporation is the best of both worlds, he was not as precise as Senator Howard.
One thing was clear: Section one, as well as the entire amendment, was intended by Section five to be made enforceable by 1) the Constitution, and 2) Congress.
Joseph B. James eloquently summarizes the conflicting issues and conflicting intentions of the framers’ surrounding the development and ratification of the Fourteenth Amendment in his invaluable work The Ratification of the Fourteenth Amendment:
The entire spectrum of possible aims included unselfish and sincere patriotic, religious, or idealistic convictions. They included theoretical and closely reasoned positions. They involved political plans for retaining or achieving power and practical ways to bring those plans into effect. They expressed economic self-interest of a respectable and justifiable nature as well as that which could only be called greed, and at times was related to actual corruption and fraud.111
There are constitutional scholars—Charles Fairman, Alexander Bickel, Raoul Berger—who have, as a reaction to Justice Black’s incorporation theory, argued that there is no indication that any of the framers’ intended the first eight amendments to the Constitution to be incorporated into the Fourteenth Amendment. (It is curious to note, that while Robert Bork passionately advocates original intent, he rejects any “abstract” and/or theoretical incorporation of the Bill of Rights into the Fourteenth.) These men have largely argued for judicial restraint and for the respect of State Constitutions’ that contain their own Bill of Rights, which they argue are a mere duplicate of the federal. Yet, their argument in behalf of state federalism—states’ rights—is an argument that is as old as the debates in the 39th Congress. They are as old as Justice Taney’s racist decision in Dred Scott, who outlawed the Missouri Compromise because it would have prevented the right of southern slave owners to recapture, without due process of law, slaves who had runaway to the north in their quest for freedom. Their arguments would return America to an era in which the Bill of Rights had little or no effect, no lasting value—a “dead letter,” as John Bingham called it.
As Bernard Schwartz has argued, the whole premise of such esteemed scholars is their continued insistence that the constitutional concept of property is more valuable than mere “abstract” individual rights. This was the very stumbling-block that Southern traditionalists held to justify slavery. Similar attitudes continue today. Judge Robert Bork argues in his work The Tempting of America: The Political Seduction of the Law, that “The attempt to define individual liberties by abstract moral philosophy, though it is said to broaden our liberties, is actually likely to make them more vulnerable.” In an attempt to make himself understood, he says, “I am not referring here to the freedom to govern ourselves but to the freedoms from government guaranteed by the Bill of Rights and the post-Civil War amendments.” He argues that “Those constitutional liberties were not produced by abstract reasoning.”112
What would Robert Bork say to the abstract theories of the abolitionists? It seems that he fails to recognize that their abstract theories were derived from existing realities—the existing reality of the plight of the black slave, who had no rights, and who were ruled to be an inferior race that had been subjugated by a dominant one. I believe Abraham Lincoln would have been far too abstract for Robert Bork, when he wrote: “Those who deny freedom to others desire it not for themselves; and, under a just God can not long retain it.”113
Angle, Paul M. By These Words: Great Documents of American Liberty, Selected and Placed in Their Contemporary Settings. New York: Rand McNally & Company, 1954.
Antislavery Examiner. No. 5. New York: The American Anti-Slavery Society, 1838.
Eliot, Charles W., ed. American Historical Documents: 1000-1904. New York: P.F. Collier & Son Corporation, 1968.
Hall, Kermit L., ed. The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press, 1992.
Kutler, Stanley I., ed. The Supreme Court and the Constitution: Readings in American Constitutional History. New York: W.W. Norton & Company, 1984.
Lincoln, Abraham. Speeches and Writings: 1832-1858. New York: The Library of America, 1989.
Lincoln, Abraham. Speeches and Writings: 1859-1865. New York: The Library of America, 1989.
Meyers, Marvin. The Mind of the Founder: Sources of the Political Thought of James Madison. Hanover, Maryland: University Press of New England, 1973.
The Friend of Man. Vol. 2. Utica, New York: October 18, 1837.
The Reconstruction Amendments’ Debates: The Legislative History and Contemporary Debates in Congress on the 13th, 14th, and 15th Amendments. Richmond, Virginia: Virginia Commission on Constitutional Government, 1967.
Bickel, Alexander M. The Morality of Consent. New Haven, Connecticut: Yale University Press, 1975.
Bork, Robert H. The Tempting of America: The Political Seduction of the Law. New York: Simon & Schuster, Inc., 1990.
Burt, Robert A. The Constitution in Conflict. Cambridge, Mass.: The Belknap Press of Harvard University Press, 1992.
Chase, Harold W., and Craig R. Ducat. Constitutional Interpretation: Cases-Essays-Materials. St. Paul, Minn.: West Publishing Company, 1974.
Curtis, Michael Kent. No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights. North Carolina: Duke University Press, 1986.
Fairman, Charles. Mr. Justice Miller and the Supreme Court: 1862-1890. Cambridge, Mass.: Harvard University Press, 1939.
Foner, Eric. Reconstruction: America’s Unfinished Revolution, 1837-1877. New York: Harper & Row, 1988.
Graham, Howard J. Everyman’s Constitution: Historical Essays on the Fourteenth Amendment, the “Conspiracy Theory,” and American Constitutionalism. Madison: State Historical Society of Wisconsin, 1968.
James, Joseph B. The Ratification of the Fourteenth Amendment. Mercer University Press, 1984.
Levy, Leonard W. Encyclopedia of the American Constitution. New York: Macmillan Publishing Company, 1986.
Levy, Leonard W. The Establishment Clause: Religion and the First Amendment. 2d. ed. Chapel Hill, North Carolina: The University of North Carolina Press, 1994.
Nelson, William E. The Fourteenth Amendment: From Principle to Judicial Doctrine. Cambridge, Mass.: Harvard University Press, 1988.
Olsen, V. Norskov. Papal Supremacy and American Democracy. Riverside, Calif.: Loma Linda University Press, 1987.
Schwartz, Bernard, ed. The Fourteenth Amendment. New York: New York University Press, 1970.
TenBroek, Jacobus. Equal Under Law: The Antislavery Origins of the Fourteenth Amendment. New York: Collier Books, 1965.
Congressional Globe, 37th (1862) and 39th (1866) Congresses.
Fairman, Charles. “Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding.” Stanford Law Review Volume 2: 1949-1950.
Ohio Senate Journal, 68.
United States Statutes at Large, 15.
Supreme Court Cases
Barron v. Baltimore 7 Peters 243 (1833).
Dred Scott v. Sanford 19 Howard 393 (1857).
Other Helpful Sources
Ackerman, Bruce. We The People: Foundations. Cambridge, Mass.: The Belknap Univ. Press of Harvard University Press, 1991.
Baer, Judith A. Equality Under the Constitution: Reclaiming the Fourteenth Amendment. Cornell University Press, 1983.
Berger, Raoul. Government by Judiciary: The Transformation of the Fourteenth Amendment. Harvard University, 1977.
Bickel, Alexander M. The Least Dangerous Branch: The Supreme Court at the Bar of Politics. New York: The Bobbs-Merrill Company, Inc., 1962.
Bickel, Alexander M. The Supreme Court and the Idea of Progress. New York: Harper & Row, Publishers, 1970.
Bureau of Rolls and Library, Bulletins of the Department of State, No. 7, September 1894, containing The Amendments to the Constitution and the Ratifications Thereof. Washington: Department of State, 1895.
Dumbald, Edward. The Declaration of Independence and What It Means Today. University of Oklahoma Press, 1968.
Gaffney, Edward M., Jr. “History and Legal Interpretation: The Early Distortion of the Fourteenth Amendment by the Gilded Age Court,” 25. Catholic University Law Review: 207 (1976).
Horwitz, Morton J. The Transformation of American Law: The Crisis of Legal Orthodoxy 1870-1960. New York: Oxford University Press, 1992.
Kelly, Alfred H., Winfred A. Harbison, and Herman Belz. The American Constitution: Its Origins and Development. 2 Vols. New York: W.W. Norton & Company, 1991.
Levy, Leonard W. Original Intent and the Framers’ Constitution. New York: Macmillan Publishing Company, 1988.
Meyer, Howard N. The Amendment That Refused To Die. Radnor, Penn.: Chilton Book Company, 1973.
Morrison, Stanley. “Does the Fourteenth Amendment Incorporate the Bill of Rights? The Judicial Interpretation.” Stanford Law Review Vol. 2: 1949-1950, pp. 140-173.
Wills, Garry. Lincoln at Gettysburg: The Words That Remade America. New York: Simon & Schuster, 1992.
1Robert H. Bork, The Tempting of America: The Political Seduction of the Law (New York: Simon & Schuster, Inc., 1990), 167, 352.