Introduction

As Republicans were passing the Civil Rights Act of 1866, they were concerned to make sure that its protection for freedmen would be secure within the Constitution. The 13th Amendment did not seem to provide Congress with sufficient new powers to protect freedmen and others from the black codes and unequal enforcement of the laws happening under Johnson’s restored state governments. How could the U.S. Constitution be amended to ensure that the state governments provided justice and the protection of rights to all citizens? As the Supreme Court had ruled in Barron v. Baltimore (1833), the original ten amendments to the Constitution limited the power only of Congress, leaving the states free to violate the rights protected in the Bill of Rights or to honor them only with regard to some of their citizens. The issue of protecting the freedmen from state abuses and neglect thus became part of larger deliberations among Republicans about how to correct this defect in the constitutional system. How could the national government protect the rights of individual citizens?

Representative John Bingham (1815-1900), a Republican from Ohio and the principal sponsor of the 14th amendment, first brought it to the floor in February, 1866. Action on it was postponed after Republicans became leery of its language (reproduced below as part of the speeches on the Amendment), and Congress’s attention turned to the Civil Rights Act. Once that act passed in April 1866, Bingham turned to winning support for a revised amendment that would support the Civil Rights Act specifically and, more broadly, fix what Republicans saw as the defect in the original Constitution. The debates from February and April illuminate the approach to protecting rights found in the 14th Amendment. The amendment cleared the Senate on June 8, 1866 (33-11) and the House on June 13, 1866 (120-32). It was ratified by three-quarters of the state legislatures on July 28, 1868. Below, selected speeches from key actors in the 14th Amendment debates are presented after excerpts from amendment in its final adopted form.


Source: 14th Amendment, Statutes at Large, 39th Congress, 1st Session, 358–59, https://goo.gl/TraZUU; Congress Debates the 14th Amendment, Congressional Globe, 39th Congress, 1st Session, pp. 1083, 1095, 2459, 2462, 2542, 2765.


14th Amendment

Section 1. 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. 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.

Section 2. Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state . . . and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

. . .

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Key Speeches on the 14th Amendment

[Representative John Bingham proposed the following Amendment to the Constitution in February.]

“The Congress shall have the power to make all laws necessary and proper to secure to citizens of each state all privileges and immunities of citizens in the several states, and to all persons in the several states equal protection of life, liberty and property.”1

[Representative Giles W. Hotchkiss, R-NY (1815-1878) moved that Congress postpone consideration of this amendment on February 28, 1866.]

Mr. HOTCHKISS. My excuse for detaining the House is simply that I desire to explain why I shall vote [to postpone consideration, which] may be regarded as inconsistent with my usual votes in this House.

I have no doubt that I desire to secure every privilege and every right to every citizen in the United States that the gentleman who reports this resolution desires to secure. As I understand it, [Representative Bingham’s] object in offering this resolution and proposing this amendment is to provide that no State shall discriminate between its citizens and give one class of citizens greater rights than it confers upon another. If this amendment secured that, I should vote very cheerfully for it today; but as I do not regard it as permanently securing these rights, I shall vote to postpone its consideration until there can be a further conference between the friends of the measure, and we can devise some means whereby we shall secure these rights beyond a question.

I understand the amendment as now proposed by its terms to authorize Congress to establish uniform laws throughout the United States upon the subject named, the protection of life, liberty, and property. I am unwilling that Congress shall have any such power. Congress already has the power to establish a uniform rule of naturalization and uniform laws upon the subject of bankruptcy. That is as far as I am willing that Congress shall go. The object of a Constitution is not only to confer power upon the majority, but to restrict the power of the majority and to protect the rights of the minority. It is not indulging in imagination to any great stretch to suppose that we may have a Congress here who would establish such rules in my State as I should be unwilling to be governed by. Should the power of this Government, as the gentleman from Ohio fears, pass into the hands of the rebels, I do not want rebel laws to govern and be uniform throughout this Union.

Mr. BINGHAM. The gentleman will pardon me. The amendment is exactly in the language of the Constitution; that is to say, it secures to the citizens of each of the States all the privileges and immunities of citizens of the several States. It is not to transfer the laws of one State to another State at all. It is to secure to the citizen of each State all the privileges and immunities of citizens of the United States in the several States. If the State laws do not interfere, those immunities follow under the Constitution.

Mr. HOTCHKISS. Constitutions should have their provisions so plain that it will be unnecessary for courts to give construction to them; they should be so plain that the common mind can understand them.

The first part of this amendment to which the gentleman alludes, is precisely like the present Constitution; it confers no additional powers. It is the latter clause wherein Congress is given the power to establish these uniform laws throughout the United States. Now, if the gentleman’s object is, as I have no doubt it is, to provide against a discrimination to the injury or exclusion of any class of citizens in any State from the privileges which other classes enjoy, the right should be incorporated into the Constitution. It should be a constitutional right that cannot be wrested from any class of citizens, or from the citizens of any State by mere legislation. But this amendment proposes to leave it to the caprice of Congress; and your legislation upon the subject would depend upon the political majority of Congress, and not upon two thirds of Congress and three fourths of the States.

Now, I desire that the very privileges for which the gentleman is contending shall be secured to the citizens; but I want them secured by a constitutional amendment that legislation cannot override. Then if the gentleman wishes to go further, and provide by laws of Congress for the enforcement of these rights, I will go with him.

. . . . Place these guarantees in the Constitution in such a way that they cannot be stripped from us by any accident, and I will go with the gentleman.

Mr. Speaker, I make these remarks because I do not wish to be placed in the wrong upon this question. I think the gentleman from Ohio [Mr. BINGHAM] is not sufficiently radical in his views upon this subject. I think he is a conservative. [Laughter.] I do not make the remark in any offensive sense. But I want him to go to the root of this matter.

His amendment is not as strong as the Constitution now is. The Constitution now gives equal rights to a certain extent to all citizens. This amendment provides that Congress may pass laws to enforce these rights. Why not provide by an amendment to the Constitution that no State shall discriminate against any class of its citizens; and let that amendment stand as a part of the organic law of the land, subject only to be defeated by another constitutional amendment. We may pass laws here to-day, and the next Congress may wipe them out. Where is your guarantee then?

Let us have a little time to compare our views upon this subject, and agree upon an amendment that shall secure beyond question what the gentleman desires to secure. It is with that view, and no other, that I shall vote to postpone this subject for the present.

[Congress rejected a call to table the amendment but agreed to postpone consideration by a 110-37 vote.2 On April 30, 1866, members of the Joint Committee on Reconstruction reported to Congress a new 14th Amendment, substantially the same as the final amendment. Debate began a week later.]

May 8, 1866

Representative Thaddeus Stevens, R-PA:

. . . I can hardly believe that any person can be found who will not admit that every one of these provisions is just. They are all asserted, in some form or other, in our DECLARATION or organic law.3 But the Constitution limits only the action of Congress, and is not a limitation on the States. This amendment supplies that defect, and allows Congress to correct the unjust legislation of the States, so far that the law which operates upon one man shall operate equally upon all. Whatever law punishes a white man for a crime shall punish the black man precisely in the same way and to the same degree. Whatever law protects the white man shall afford “equal” protection to the black man. Whatever means of redress is afforded to one shall be afforded to all. Whatever law allows the white man to testify in court shall allow the man of color to do the same. These are great advantages over their present codes. Now, different degrees of punishment are inflicted, not on account of the magnitude of the crime, but according to the color of the skin. Now, color disqualifies a man from testifying in courts, or being tried in the same way as white men. I need not enumerate these partial and oppressive laws. Unless the Constitution should restrain them those States will all, I fear, keep up this discrimination, and crush to death the hated freedmen. . . .

Rep. James Garfield, R-OH:

. . . I am glad to see this first section here which proposes to hold over every American citizen, without regard to color, the protecting shield of law. The gentleman who has just taken his seat [Mr. FINCK, D-OH] undertakes to show that because we propose to vote for this section we therefore acknowledge that the civil rights bill was unconstitutional. He was anticipated in that objection by the gentleman from Pennsylvania, [Mr. STEVENS]. The civil rights bill is now a part of the law of the land. But every gentleman knows it will cease to be a part of the law whenever the mad moment arrives when that gentleman’s party comes into power. It is precisely for that reason that we propose to lift that great and good law above the reach of political strife, beyond the reach of the plots and machinations of any party. . . . For this reason, and not because I believe the civil rights bill unconstitutional, I am glad to see that first section here. . . .

May 10, 1866

Representative John Bingham:

. . . The necessity for the first section of this amendment to the Constitution, Mr. Speaker, is one of the lessons that have been taught to your committee and taught to all the people of this country by the history of the past four years of terrific conflict – that history in which God is, and in which He teaches the profoundest lessons to men and nations. There was a want hitherto, and there remains a want now, in the Constitution of our country, which the proposed amendment will supply. What is that? It is the power in the people, in 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.

. . . This amendment takes from no State any right that ever pertained to it. No State ever had the right, under the forms of law or otherwise, to deny to any freeman the equal protection of the laws or to abridge the privileges or immunities of any citizen of the Republic, although many of them have assumed and exercised the power, and that without remedy. . . .

May 23, 1866

Senator Jacob Howard, R-MI:

. . . It will be observed that this is a general prohibition upon all the States, as such, from abridging the privileges and immunities of the citizens of the United States. That is its first clause, and I regard it as very important. 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 its laws.

The first clause of this section relates to the privileges and immunities of citizens of the United States as such, and as distinguished from all other persons not citizens of the United States. It is not, perhaps, very easy to define with accuracy what is meant by the expression, “citizen of the United States.” . . . A citizen of the United States is held by the courts to be a person who was born within the limits of the United States and subject to their laws. . . .

It would be a curious question to solve what are the privileges and immunities of citizens of each of the States in the several States. I do not propose to go at any length into that question at this time. . . . [I]t is certain the clause was inserted in the Constitution for some good purpose. . . . [W]e may gather some intimation of what probably will be the opinion of the judiciary by referring to a case adjudged many years ago in one of the circuit courts of the United States by Judge [Bushrod] Washington.4 . . . It is the case of Corfield vs. Coryell. . . . Judge Washington says: . . .

The inquiry is, what are the privileges and immunities of citizens in the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are in their nature fundamental, which belong of right to the citizens of all free Governments, and which have at all times been enjoyed by the citizens of the several States which compose this Union from the time of their becoming free, independent, and sovereign. What these fundamental principles are it would, perhaps, be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: protection by the Government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject nevertheless to such restraints as the Government may justly prescribe for the general good of the whole. The right of a citizen of one State to pass through or to reside in any other State, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain notions of any kind in the courts of the State; to take, hold, and dispose of property, either real or personal, and an exemption from higher taxes or impositions than are paid by the other citizens of the State, may be mentioned as some of the particular privileges and immunities of citizens which are clearly embraced by the general description of privileges deemed to be fundamental, to which may be added the elective franchise, as regulated and established by the laws or constitution of the State in which it is to be exercised. . . .

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

Study Questions

A. What standards does the 14th Amendment hold states to? What incentives does Section 2 of the 14th Amendment put in place for encouraging states to grant the vote to the freedmen and others? Who does the 14th Amendment seek to prohibit from holding national office? Why? In what ways can Congress enforce the 14th Amendment? What were the prominent arguments in favor of the 14th Amendment? Why was debate about the 14th Amendment postponed at the end of February 1866? What changes to the amendment were made before its passage? What is the significance of those changes? How is the vision of federalism different in the first draft of the amendment compared to the second draft?

B. How might states violate the 14th Amendment? Consider in this light the evidence from Documents 10, 25 and 28. How might the courts be involved in enforcing the 14th Amendment, especially given the role assigned to the courts by the Civil Rights Bill (Document 13)? If you are a citizen of a state and the state does not investigate a crime against you because you are black, while it does investigate the same crime when it is committed against whites, would you be able to take the state to federal court even without other enabling legislation (such as the Civil Rights Act (Document 13) or the Enforcement Acts (Document 23)?

Footnotes

  1. Congressional Globe, 39th Congress, 1st Session, p. 1083. https://goo.gl/j9q7mE
  2. Tabling would have effectively killed the bill, but postponing consideration meant that it would come up in Congress without a return to the committee.
  3. By “organic law,” Stevens refers to the fundamental law of the US, written or unwritten. He seems to view the Declaration as establishing this fundamental law later established in the Constitution.
  4. Bushrod Washington (1762-1829) was an Associate Justice of the Supreme Court from 1798 through 1829 and a nephew of George Washington.