Equality Provision II
Bill Long 8/23/05
Language Change and Rep. Davis on Section 1
We saw in the previous essay that the Joint Committee on Reconstruction was considering language on January 20, 1866 that would have granted "political privileges" to all citizens of the United States. Two week laters Congressman Bingham introduced the following language in the Committee which would eventually become the language debated on the House floor late in February.
"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, and to all persons in the several states equal protection in the rights of life, liberty, and property."
No official record exists detailing why this change from the January 20 proposal was introduced, but most scholars believe, and I concur, that the words "political privileges" in the earlier document were replaced with "immunities" here because of the incendiariness of the former language. "Immunities" was a high-sounding term that had already been used once in the Constitution (Article 4, Sec. 2) but was of uncertain enough meaning so that, it was thought, those who opposed as well as those who supported Negro suffrage could find comfort in the term. It was therefore introduced to "paper over" difficulties that might attend the "political privileges" language and, by papering over difficulties, secure broader support for the measure.
The Debate in the House
As has been shown in other essays, the two sections of the Amendment were now thrown to the full House of Representatives. Each received separate consideration. As I have shown, the representation section passed the House but met with demise at the hands of Charles Sumner in the Senate. The equal protection section, as I will call this one, faced considerable debate in the House on February 28, 1866. Representative Davis held forth for five densely packed pages of the Congressional Globe opposing the language (CG, 39th Congress, 1st Sess., 1083-1087) and then he was answered by supporters of it. Two things about Rep. Davis' speech, which have not been noted in the scholarly literature I have read are: (1) most of it concerned the proper way to integrate the Southern states back into the Union; and (2) he knew he was expressing a minority opinion. Let me say a word about each.*
[*The reason I am spending so much time on the debate over the equality provision is that Justice Kennedy, in City of Boerne v. Flores, which I summarized on my Establishment of Religion page, looks at this same legislative history and concludes, wrongly in my judgment, that Davis' comments and those like his turned the tide in the Congressional debate.]
(1) Rep. Davis believed that the relations with the South in 1866 were sensitive in the extreme. In such a situation, one ought to be very reluctant to amend the constitution, and especially to amend the constitution in a way which explicitly gives Congress powers to intervene dramatically in national life.
"An amendment which gives in terms to Congress the power to make all laws to secure to every citizen in the several States equal protection to life, liberty, and porperty, is a grant for original legislation by Congress. If Congress may give equal protection to all as to property, it is itself the judge of the measure of that protection" (CG, id. at 1087).
What Davis saw the amendment accomplishing was to shift the balance of power between the States and the Federal Government. This wording would allow Congress to run roughshod over the states, to nullify the acts of their legislatures, to become more and more oppressive. The impression given by many scholars is that Davis' objections were to the specific wording "necessary and proper" in the proposed amendment. In fact, he didn't like the whole tenor of it. It was an express attempt to alter the balance of power between the Federal government and the states. And, I think it is clear that he was right. The Republicans in charge of Congress did want to establish a stronger role for the Federal government and especially the Congress in securing protection to all citizens.
(2) Davis also knew that he was in the minority. This is indication enough of the fact that when this provision crashed and burned in the House it was probably not solely, or even primarily because of the objections of conservatives like Davis. Here are his words:
"I know that the sentiments I have uttered are by no means consonant with the opinions of those who lead, or mislead, the Union men of this House. They may not be in accord with popular sentiment in my State or in the country, inflamed as it may be by appeals made here to prejudice and passion. But they are my sentiment--they are honestly entertained; they are fearlessly uttered" (CG, id. at 1086).
This doesn't sound like a man who feels he has armies at his back. Davis, in contrast, would be hesitant to amend the Constitution and would use the Freedmen's Bureau, already set up by Congress in 1865, to be the eyes and ears of the Union in the South.
Conclusion
Objections raised by Rep. Davis were then countered in debate by Reps. Bingham, Woodbridge and others. As the next essay will show, many Representatives supported the committee language, but some felt it didn't go far enough.
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