fourteenth amendment and equal protection and due process and interpretation and section 2 and representation

One of the things that fascinated me when I came into law from the field of biblical studies in 1996 was the importance of the 14th Amendment of the US Constitution for the shaping of modern American law. I learned in my constitutional law class that the "due process" and "equal protection" clauses, both in Sec. 1 of the 14th Amendment, each had rather elaborate interpretive scaffoldings erected by the Supreme Court over the preceding 50 years and, apart from the commerce clause, were the places where "the big action" was in constituutional law interpretation. But, being the textualist that I am--that is a guy who believes you should read texts carefully in their full historical context before trying to divine their meaning-- I knew that something must be wrong. I read and re-read, and then re-read the 14th Amendment, and decided that there was no way that these phrases could have had the centrality in the late 1860s as when the Courts of a century later tried to "construe" them.

It was obvious to me that the real action of the Amendment was in Secs 2-4, and that Secs 1 and 5 were not exactly window-dressing but were sonorous phrases meant to establish what I would call a "tone of equality" that provided the context for construing 2-4. The purpose of this and the next mini-essay is to establish the flow of the Amendment's language. Subsequent essays will then review a recent law-review essay that helpfully tries to read the Amendment in its larger historical context and to understand the history that produced this Amendment.

Reading the 14th Amendment

The Amendment has five sections. Even a cursory reading of the history of the time and the affairs of the 39th Congress, which met beginning in December 1865, and whose affairs are chronicled in the Congressional Globe (now online), shows that several of these sections were not only debated for at least two or three years before 1865 by various groups of Republicans and northern Democrats but that they were largely introduced seriatim by members of Congress during the 39th Congress. It was up to the Joint Committee on Reconstruction, consisting of 9 Representatives and 6 Senators (drawn from 25 states--the 10 states of the Confederacy had no representation in this Congress and would have none, eventually, until they ratified the 14th Amendment, approved by the states in 1867-68) to try to put all things together in the form either of resolutions or statues or, in this case, a Constitututional Amendment. The 13th Amendment, abolishing slavery, had gone into affect in December 1865, and so the work of the Committee would eventuate in the 14th Amendment.

The Committee was appointed immediately upon commencement of legislative duties in December, and the Congress approved the proposed (14th) Amendment in June 1866. Thus, the language was hammered out in the space of a few months early in 1866. The first section, which has occasioned so much 20th century decision and comment, consists of four clauses: (1) a declaration about national citizenship; (2) a statement about "privileges or immunities" of citizens of the US which states are powerless to abridge; (3) the due process clause; (4) the equal protection clause. The first was meant to correct the cramped definition of citizenship in the 1857 Dred Scott decision. The second was introduced, many scholars think, because John A. Bingham of Ohio, one of the leading members of the committee, liked the resonant phrase. This phrase would be construed, and almost construed out of existence, in the 1873 Slaughterhouse Cases. The third and fourth clauses are the ones that didn't receive much attention in the 19th century but form the basis of much of modern constitutional law. These 80 words then, are the first section.

It is proper, and helpful, to inquire into the meaning that inhered in these words in 1866, though only the most optimistic and imaginative interpreter would say that current Supreme Court equal protection or due process jurisprudence is "derived from the text." It is almost comical to me, then, when President Bush or other political leaders, say that they want judges to just tell you what the Constitution says, as if the spare terminology of Sec. 1 could remotely give you anything like our current jurisprudence or, for that matter, could yield an interpretation of any issue of current social importance that is can be derived from the text of the Amendment.

Section 2, about 130 words, deals with a burning issue in 1866: how to "count" the citizens and voters in states that formerly were in rebellion to the Union for purpose of their representation in the Congress of the United States. There was no question but that the Confederate states would be folded back into the Union, but how to do so was a matter of the most extreme delicacy. One of the huge issues was how you counted citizens. We know that slaves were originally counted as 3/5 of a person, but once they are declared to be citizens of the US and of their states, they must be counted as 1/1 person. But do you appoint representatives? based on male citizens of voting age? based on total number of people? based on male and female who were of voting age (even though women didn't get the right to vote)? The issue was not trivial. Indeed, Rep. Blaine of Maine did a study that showed that as you moved West in the states, the proportion of males to females climbed. There were more females than males in Eastern states but, when you got to CA and OR, the males outnumbered the females by 3:1 (those were the pioneer days, after all). And, you had a further problem. If you counted each Black as one person, the population of Southern States, which you really didn't want to have much power, would "grow" considerably, and you didn't have assurance that the States would land in the "R" column. It was easily conceivable that a newly invigorated South, combining with Northern Democrats, could soon be in power and replace the Republicans who designed the War and post-War strategy. Thus, the fashioning of representation was crucial.

This section of the Amendment provided that "whole number of persons" in a state was the criterion for counting citizens (excluding Indians who weren't taxed). The second sentence is the crucial one. The important thing it does is to declare that if some citizens are denied the right to vote for reasons other than they participated in the rebellion the number of people in the state calculated for purposes of selecting the number of representatives shall be reduced by the same proportion as the number of Blacks disallowed from voting. The "other than participation in the rebellion" clause was meant to refer to Black citizens, who might be (and actually were) denied the vote in the post-Civil War South. Let's say, then, that state X had 1,000,000 people in it. Let us say that 300,000 were White males eligible to vote and 150,000 were Black males now eligible to vote. If the state disallowed the Black vote (and note, this assumes that voting is a State and not Federal issue or decision), then the effective population of the state for representation would be cut in half or, in my reading of the language, the effective population of the state would be 500,000 people. This would not only encourage Southern states to grant the franchise to Blacks but, if they refused to do so, would lessen their power in the United States.

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