Fourteenth Amendment and equal protection and privileges and immunities and bingham

The purpose of this essay is to show the way that Sec. 1 evolved in the Committee on Reconstruction ("CR"). I can't fully discuss the issues here, but will point to some interesting ones. Let's begin with Sec. 1 as it was ratified (and we now have it) in 1868.

Current Section 1

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."

A few comments. Note we have only two sentences, though sentence two has three clauses. Almost all the jurisprudence of the past 50 years on the 14th Amendment has focused on two clauses in this Section as well as Section 5 ("due process of law;" "equal protection of the laws"). The first sentence was a late addition to the process and was added, most scholars suggest, to overturn the Dred Scott v. Sandford (1857) decision, where a person, Scott, was determined not to be a citizen of the state into which he was removed (a free state). Thus, the Committee work focused on the second sentence. Let's understand some of the evolution of the language.

Section 1 Develops: First Gambits

Though the CR didn't begin meeting until Jan. 1866, by December 6 Bingham had already put forwards words he wanted to see in a constitutional amendment. His words were:

"To secure to all persons in every State of the Union equal protection in their rights, life, liberty and property."

When the committee actually met, an alternative amendment from January 20 contained these words:

"Secure to all citizens of the United States, in every State, the same political rights and privileges; and to all persons in every State, equal protection in the enjoyment of life, liberty and property."

Note the differences between the two versions. How does the second differ from the first? In three particulars. (1) The reference to "political rights and privileges" is included in the second. What might that mean? (2) The addition of the little word "enjoyment" in the 2nd clause. Mean anything? (3) The division into two clauses with the first referring to citizens and the second to "all persons." Any significance there?

The Committee Work: Gambit 2

A subcommittee consisting of Bingham, Boutwell and Rogers was appointed near the end of January to work on the language. The following proposal surfaced. The committee worked on the language from the January 20 draft and did the following. (1) It reversed the order of the clauses. (2) It substituted, for "equal protection in the enjoyment..." the words "full protection in the enjoyment of..." Any significance here? Was this an importation of "vagueness" into the language of the Amendment? Did this betoken the reality that, ultimately, if wording was to be gotten through the Congress you needed to have imprecise or vague language? (3) It replaced the words "same political rights and privileges" with words:

"the same immunities and also equal political rights and privileges."

The full CR never voted on these proposals. What do you see is going on?

The Committee Work: Move 3

The decisive thing for the future of the Amendment occurred on February 3, when Bingham decided to propose the following substitution. I include references to sections of the Constitution which he included, even though the text of the Amendment would not include these references.

"The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each state all privileges and immunities of citizens in the several states (Art. 4, Sec. 2); and to all persons in the several States equal protection in the rights of life, liberty and property (5th Amendment)."

After considerable discussion, the CR agreed to the amendment, 9-4, with two Democrats voting in opposition. I don't know where the other two committee members were. How does this differ from the version which the subcommittee drew up? Any significance to any of the differences? What do you think Bingham was trying to do by using these words?

One of the questions that has stumped scholars for years is that Binham ignored one phrase from the 5th Amendment which you would have thought would have been included here. Which phrase or clause is it?* Why do you think it might not be there?

[*The Fifth Amendment reads as follows: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."]

Other Comments and Conclusion

When this proposed Amendment emerged from the CR, the Civil Rights Act of 1866 was being debated in the Congress so, interestingly enough, this proposed Amendment took back seat to that debate for a while. Opposition emerged from people who believed this would give too much centralized power to Congress (indeed it did; and that was the reason the Republicans supported it). some opposition developed in the Senate because of Charles Sumner's pique that the Amendment didn't go far enough in its explicit support of Black rights. Some newspapers, however, saw it as surplusage and the language as vague and "feel-good," which really didn't say much of anything. The combination of these objections resulted in its being torpedoed in the Senate after it was adopted by the House in March. Then, in April, a new proposal came forward, which would make the Amendment into a five-part proposal that was actually adopted by both Houses in June.

This one day on the "history" of the Amendment, however, shows just how complex the issue of "legislative intent" can be, even as it humanizes the process for us of legislative give and take regarding wording of the Amendment.

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