january 20, 1866 and joint committee on reconstruction and equal protection and discrimination and life, liberty and property

At the end of the last essay I showed how proposals regarding "equal protection" and "no discrimination" had been submitted to the Joint Committee even before it formally met for business in January 1866. In order to understand the final wording of the Amendment better (which wasn't approved by Congress until June 1866), we should understand what I call three "movements" in the development of (what would become) Sec. 1's language. This and the next few essays will consider those movements in detail. In short, they are: (1) The Committee process in January and February; (2) The Owen proposal of early April, after the Committee proposal was rejected; and (3) The Final Wording of the Amendment.

Committee Process--The January 20, 1866 Wording

Though both Bingham and Stevens had introduced language to the Committee, a subcommittee refined their suggestions and submitted to the full Committee its own wording on January 20, 1866. It provided:

"Congress shall have power to make all laws necessary and proper to secure to all citizens of the United States, in every State, the same political rights and privileges; and to all persons in every State equal protection in the enjoyment of life, liberty, and property" (quoted in Nelson, The Fourteenth Amendment, 49).

This proposal, though not ultimately adopted, had come a long literary distance from the wording submitted to the Committee by Bingham and Stevens. First, it kept the "necessary and proper" language of Bingham's' Dec. 6 proposal. These words are derived from Art. 1, Sec. 9, cl. 18 of the Constitution: Congress shall "make all laws necessary and proper for carrying into Execution the foregoing Powers (in the preceding 17 clauses) and all other Powers vested by this Constitution in the Government of the United States.." While some scholars see this wording as the Committee's attempt to delineate Congressional powers in the most expansive way possible, I see it simply as wanting to give Congress the same power over "equal protection" that it has over the 17 items in Art. 1, Sec. 8. It is not Congress gone wild, so to speak; it is Congress being able to act as the Framers intended.

Second, note the distinction between "citizens" and "all persons" in the two clauses. Stevens had used "citizen" language in his Dec. 5 proposal, while Bingham had used "all persons" in his suggestion. The linguistic difference should not be missed. The notion of national citizenship is nowhere defined in the Constitution, and the framers of the 14th Amendment eventually had to add a sentence at the beginning of Sec. 1 to define what citizenship means.* But in the January 20 Committee proposal the distinction is made that "citizens"

[*The first sentence of the 14th Amendment reads: "All persons born or naturalized in the United Staes, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

would receive "the same political rights and privileges," while "all persons" would have "equal protection in the enjoyment of life, liberty and property." What is the difference? Well, an alien, of which there were many in the East at the time, would not have citizenship rights but would have "life, liberty and property" rights. Now that we know something about the Civil Rights Act of 1866, which was wending its way through the Senate Judiciary Committee at that instant, we have a broader perspective on this issue.

One More Thing about the January 20 Wording

Third, by making the distinction between citizens and "all people, the Committee, and Congress in general, was making a distinction between "civil" and "political" rights. The former included those rights protected in the CRA of 1866 and had mostly to do with contract, property and lawsuit rights. The latter had to do with suffrage. This distinction developed because of the split among White Northerners regarding awarding the franchise to Blacks. Only the New England states (except for CT) permitted Black voting, and many other states that considered the issue resoundingly defeated it. Indeed, when Oregon was admitted to the Union in 1859 it had a clause in its Constitution prohiting Blacks from living in the State. Thus there was no consensus at all about granting political rights to Blacks. Because the Republicans wanted to establish some consensus among themselves, they could all get behind the Civil Rights Act of 1866, even to the extent of overriding President Johnson's veto of it.

But the notion of "political" rights will be much more explosive for Republicans and the nation. More explosive still, and not even on the radar screen of most Congressmen at the time, were social rights--access on an equal and "mingled" basis to various accommodations (theaters, hotels, trains, etc.). Since civil rights, defined as property, contract and lawsuit rights, would be handled in the CRA of 1866, the Joint Committee, in its January 20 proposed wording, was trying to put the issue of suffrage on the table. It would be summarily taken off the table, as the next essay will show, but at least we can discern what is happening.

Conclusion

By January 20, 1866, then, the Joint Committee was faced with two proposals. One, discusssed in other essays, was to recommend that congressional representation be based on total population but would be decreased if Blacks were prohibited from voting. The second, considered here, was to distinguish between citizens and others (aliens) and award greater degrees of protection ("political" rights) to the former. But the Committee kept deliberating, as the next essay shows.

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