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"abrogate all state laws of discrimination between the two races in the matter of real estate ... and of contracts generally." 40
Nowhere in the extensive debates on the Civil Rights Act of 1866 is it even intimated that the law would do anything more than eliminate discriminatory state laws. The bill's proponents eagerly asserted that rights of individual whites would remain unimpaired. In light of the fact that laws forbidding private discrimination were completely unknown, it would be absurd to assert that the ability to compel persons to sell, not to mention contract or devise, without their individual right to discriminate, was a right "common to the humblest citizen" or "the essence of freedom." In the tenor of the times, and the prevailing views of rights in property, such anti-discrimination laws might well have been deemed a violation of the civil rights of whites. It certainly could not be argued that it was part of the civil rights of Negroes intended to be advanced by the bill.
IV. The Initial Version of the Fourteenth Amendment The privileges and immunities, due process, and equal protection clauses of the Fourteenth Amendment are a product of Representative John A. Bingham, a Radical Republican from Ohio, who had voted against the Civil Rights Act of 1866 although in agreement with its purposes because he believed that Congress lacked constitution power to pass it, and because of the potential sweep of the term "civil rights." It was his version of the Joint Committee on Re. construction's work on a constitutional amendment to secure equal rights which the Committee ultimately accepted and reported out.“
The original version of the Fourteenth Amendment, as Fairman correctly points out, was an affirmative grant of legislative power to Congress to secure privileges and immunities and equal protection for life, liberty and property.“ Bingham and several Radicals defended it on the grounds that it was merely declarative of constitutional rights already granted."
The proposed amendment first came under fire from Representative Andrew Jackson Rogers of New Jersey, a Democratic member of the Joint Committee. The main thrust of his attack was that the amendment would overcentralize the government and destroy state powers. While apparently in favor of permitting Negroes to own property," he attacked the proposal on the ground that it would wipe away state discriminatory legislation."
However, the main speaker against Bingham's proposal was Representative Robert S. Hale, a moderate New York Republican, who had formerly been a judge. Hale subjected the amendment to close scrutiny, likewise attacking it as a “provision under which all State legislation, in its codes of civil and criminal jurisprudence and procedure, affecting the individual citizen, may be overridden, may be repealed or abolished, and the law of Congress established instead.” 67 To this Congressman Thaddeus Stevens of Pennsylvania, the leader of the Radical Republicans, replied that “Congress could [not] interfere in any case where the legislation of a State was equal, impartial to all” and that the amendment was "simply to provide that, where any state makes a distinction in the same law between different classes of individuals, Congress shall have power to correct such discrimination and inequality."
40 Globe 1680.
Fairman, op. cit. supra note 4, at 24. This was also Hale's view. Globe 1064. The text, at Globe 1034, is : "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.".
4 Globe 1034 ; Bickel, op. cit. supra note 5, at 33-4. 45 Globe App. 134 : "Negroes should be protected in property, and by the States should allowed all the rights of contracting, and doing every act or thing that a white man is authorized by law to do."
48 Ibid.: "According to the organic law of Indiana a negro is forbidden to come there and hold property. This amendment would abrogate and blot out forever that law, which is valuable in the estimation of the sovereign people of Indiana." See also Globe App. 135 : The proposed amendment will "empower the Federal Government to exercise an absolute, despotic, uncontrollable power of entering the domain of the States and saying to them, Your state laws must be repealed whenever they do not give to the colored population of the country the same rights and privileges to which your white citizens are entitled. You nowhere find Congress endowed with the right to interfere with the eminent domain and the sovereign power of a State. But each State has sovereign jurisdiction and power over the property, the liberty, the privileges, and immunities, and the lives of its citizens.'"
47 Globe 1063. 48 Ibid.
Hale then turned to the change which the amendment would effect in state legislation over property rights. He pointed to the fact that Congress might require that “married women, in regard to their rights of property, should stand on the same footing with men and unmarried women,' although in all states distinctions still persisted. Brushing aside Stevens' rebuttal that these groups were in different classes, he replied that if that were the distinction, Negroes could be placed in a different class than whites. He objected to the fact that the amendment would overturn the discriminatory provisions of the Oregon Constitution, and probably those of Indiana as well, as an undue interference in state internal affairs."
The next day, Congressman Thomas T. Davis, another New York Republican, echoed Hale's objection about overcentralization. He urged that states were not under federal control "in respect of social arrangement ... of the rights of property, and control of persons."
Bingham attempted to save his proposal in a long defensive speech. His position was that the amendment would give Congress the power to enforce the bill of rights against the states. In response to a question from Rogers about the meaning of "due process of law," he replied that "the courts have settled that long ago, and the gentlemen can go and read their decisions." He rebutted Hale's argument by declaring that under the proposal, property would still be under state law.54
Bingham then launched into a long discussion of the need to overrule Barron V. Baltimore * and apply the bill of rights to the states. This case, of course, was one where the state had interfered with real property rights, a point ne knew quite well. He asserted that the constitutional guarantees were “disregarded today in Oregon" and in the South, and that the amendment was needed to secure "equal protection to life, liberty or property.'
." 67 In response to a question from Hale, he asserted that the proposal would permit Congress to secure equal protection “to life and liberty and property ... the right to real estate being dependent on the State law." Hale asked that if Congress could not legislate "in regard to real estate," did Bingham mean "to imply that it extends to personal estate." He answered : "Undoubtedly it is true ... [because] the personal property of a citizen follows its owner, and is entitled to be protected in the State into which he goes. He concluded that the proposal simply gave Congress power “to see to it that the protection given by the laws of the States shall be equal in respect to life and liberty and property to all persons."
Bingham's remarks did not satisfy his colleagues. Congressman Giles W. Hotchkiss, a New York Republican lawyer, still thought the proposal would
SO "Mr. Bingham. [The amendment) is to apply to other States also that have in their constitutions and laws today provisions in direct violation of every principle of our Constitution.
"Mr. Rogers. I suppose the gentleman refers to the State of Indiana ? "Mr. Bingham. I do not know ; it may be so. It applies unquestionably to the State of Oregon.
“Mr. Hale. . : And here we come to the very thing for which I denounce this proposition, that it takes away from these States the right to determine for themselves what their institutions shall be. Oregon has not been in rebellion; the gentleman has no charge to bring against her, except that she has incorporated into her constitution and laws provisions that to him are distasteful, and which he thinks unjust. I submit that that should
never be a question for us to pass upon here in Congress." Globe 1065. 51 Globe 1083. 53 Globe 1088. 53 Globe 1089. 54 Ibid. He said : “But the gentleman's concern is as to the right of property in married
“Although this word property has been in your bill of rights from the year 1789 until this hour, who ever heard it intimated that anybody could have property protected in any State until he owned or acquired property there according to its local law or according to the law of some other State which he may have carried thither? I undertake to say no one.
"As to real estate, every one knows that its acquisition and transmission under every interpretation ever given to the word property, as used in the Constitution of the country, are dependent exclusively upon the local law of the States, save under a direct grant of the United States, Bụt suppose any person has acquired property not contrary to the laws of the State, but in accordance with its law, are they not to be equally protected in the enjoyment of it, or are they to be denied all protection? That is the question, and the whole question, so far as that part of the case is concerned."
55 32 U.S. (7 Pet.) 243 (1833). 58 See Cong. Globe, 42d Cong., 1st Sess. App. 83 (1871). 57 Globe 1090. 58 Globe 1094. Bingham stated: “Let the gentleman look to the great Mississippi case, Slaughter and another, which is familiar, doubtless, to all members of the House." No doubt Bingham was referring to Groves v. Slaughter, 40 U.S. (15 Pet.) 449 (1841), where Justice Baldwin declared that if slaves were brought into a free state by the owner, "no law of either State could take away or affect his right of property.” Id. at 516.
give Congress power to establish uniform laws to protect life, liberty, and property, thus overcentralizing the government. Moreover, Congress could repeal or alter such legislation. He suggested an amendment "that no State shall discriminate against any class of its citizens.'
The Republican leadership, sensing that the proposal could not pass, moved that it be postponed. The House Republicans, including Bingham, followed party leadership, and the proposal was dropped.
This proposal is significant to show Bingham's thinking. True, it was hazy perhaps even confused. The privileges and immunities clause could apply to, and was early held to apply to, real property, as well as personal property, even though only the latter could be moved from state to state. Certainly, the equal protection clause could apply to both, and Congress was particularly interested in State laws preventing Negroes from owning real estate. However, the debate shows clearly that Bingham did not intend to supplant state law procedures for acquiring property, but merely wanted to protect property lawfully acquired from confiscation or undue restriction, as was true in Barron v. Baltimore.
V. The Final Version of the Fourteenth Amendment The final version of the privileges and immunities, due process, and equal protection clauses of the Fourteenth Amendment likewise was Bingham's product. Stevens introduced it as the Committee draft in the House. The Radicals considered it a disappointingly mild provision, but congressional Republicans, afraid of defeat in the fall 1866 elections, rejected any radical proposals too closely tied with Negroes. Instead, the Fourteenth Amendment was intended as a compromise measure which the majority of Republican professional politicians in Congress considered a safe party platform and useful campaign material which would be valuable in carrying the country. Thus the Chicago Tribune of May 5, 1866, a Radical newspaper, referred to the first section as "surplusage," and deemed the measure feeble. However, if Radicals were unenthusiastic, others could hardly attack it. Opponents would have to take an opposite position. “We would like to see them advocate the proposition that local legislatures shall have the authority to abridge the rights of the citizen, or to deprive any person of life, liberty, or property, without due process of law." *
Stevens, the leading House Radical, did not conceal his disappointment, but confessed it was the best he could get. He stated that the first section was designed to "correct the unjust legislation of the States, so far that the law which operates upon one man shall operate equally upon all.” He pointed out that the Civil Rights Bill had the same object, but since Congress could repeal it at any time, he desired to secure this beyond the control of a hostile majority. Other Congressmen likewise discussed the first section as a constitutional embodiment of the Civil Rights Act of 1866.6A Pennsylvania Democrat opposed it because "the first section proposes to make an equality in every respect be
so Globe 1095. It might be noted that Hale had also pointed out that the proposal differed from the bill of rights in that the latter was a limitation on power. Globe 1964.
60 Kendrick, op. cit. supra note 10, at 215, Congressman James A. Garfield, Ohio Republican, who was later to be President, stated : "Now, let it be remembered that the proposed amendment was a plain, unambiguous proposition to empower Congress to legislate directly
upon the citizens of all the States in regard to their rights of life, liberty, and property. After a debate of two weeks ... it became evident that many leading Republicans of this House would not consent to so radical a change in the Constitution. and the bill was recommitted to the joint select committee." Cong. Globe, 420 Cong.. Ist Sess. App. 151 (1871). He also declared : "It will not be denied, as a matter of history, that this form of amendment received many Republican votes that the first form to which I have referred could not have received."
61 Globe 1095.
4 Kendrick, op. cit. supra note 10, at 106. The progress of this version is set forth in Bickel, op. cit. supra note 5, at 40-45. 45 James, The Framing of the Fourteenth Amendment, 110–120 (1956). 06 Id. at 123-4, 134-5, 145. 07 "This proposition is not all that the Committee desired. It falls far short of my wishes. I believe it is all that can be obtained in the present state of public opinion.
Upon a careful survey of the whole ground, we did not believe that nineteen of the loyal States could be induced to ratify any proposition more stringent than this. Believing, then, that this is the best proposition that can be made erectual, I accept it." Globe 2459. Congressman John M. Broomall, a Pennsylvania Radical Republican said: "It is not what I wanted. How far short of it! But the necessity is urgent, and we must take what will obtain the votes of two thirds of both houses of Congress, and the ratification of three fourths of the actual States... ." Globe 2498. See also Globe 2511, 2439.
a Globe 2459. 6° See, e.g., Globe 2462 (Garfield): 2465 (Thayer) : 2467 (Boyer) ; 2498 (Broomall) ; 2502 (Raymond); 2511 (Eliot) ; 2538 (Rogers). See Bickel, op. cit. supra note 5, at 47-8.
tween the two races, notwithstanding the policy of discrimination which has heretofore been exclusively exercised by the States." Bingham closed the de bate by saying that the first section would protect citizens "from unconstitutional state enactments,'
,” il and shortly thereafter the House passed the amendment." In the Senate, Senator Jacob M. Howard of Michigan opened the debate by tying the privileges and immunities clause to Article iv, § 2 and the Bill of Rights, lamenting that “the restriction contained in the Constitution against the taking of private property for public use without just compensation is not a restriction upon state legislation.” 13 He stated that the first section would permit Congress to enforce the bill of rights against the States, and deprive them of power to subject Negroes to different laws than whites. He declared that "section one is a restriction upon the States, and ... will . . . forever disable every one of them from passing laws trenching upon fundamental those rights and privileges. . .. When debate resumed after a few days of caucusing by the Republican members," Senator Luke Poland, Vermont Republican and former Chief Justice of that State, referred to the due process and equal protection clauses as an embodiment of the Civil Rights Bill's principles, directed at "partial State legislation," some of "very recent enactment, a reference to the Black Codes. Senator Timothy 0. Howe, a Wisconsin Radical Republican, declared that the first section was necessary because Southern states “denied to a large portion of their respective populations the plainest and most necessary rights of citizenship. The right to hold land when they had bought it and paid for it would have been denied them; the right to collect their wages by the processes of the law when they had earned their wages. .
Senator John B. Henderson, a Missouri Republican, also referred to the Black Codes. He said that the South denied Negroes “the right to hold real or personal property ... and forced upon him unequal burdens. Though nominally free, so far as discriminating legislation could make him so he was yet a slave." He added that the Civil Rights Bill abolished such laws,*8 but that while women and aliens "are regarded as persons and not dumb brutes; they enjoy the right to acquire property, to enter the courts for its protection, to follow the professions, to accumulate wealth," if the Civil Rights Bill were declared unconstitutional, Negroes would lose such protection." Finally, Senator Reverdy Johnson, a Maryland Democrat who was a member of the Joint Committee, but who voted against the amendment as a whole, stated that he was "in favor of that part of the first section which denies to a State the right to deprive any person of life, libery, or property without due process of law," 80 showing that this provision was intended to be universal and hence commanded even Democratic support. The amendment, with several changes from the House version, was then passed. *
On June 13, 1866, when the House concurred in the Senate amendments, there was only brief debate. Rogers said that the first section "simply embodied the gist of the civil rights bill.” 83 In the last speech, Stevens, Mr. Radical of the
70 Globe 2430 (Congressman Samuel Jackson Randall). 71 Globe 2543. 72 Globe 2545. 73 Globe 2765. He also quoted at length from Corfield v. Coryell, supra note 63. 74 Globe 2766. 75 Globe 2938. 70 Globe 2961. Senator Garrett Davis, Kentucky Democrat, said the same thing. Globe # Globe App. 219. He also attacked the harsh criminal laws and punishments in the South. Globe App. 223.
78 Globe 3034-5: Congress did "a simple act of justice to the negroes and poorer whites of the South, who had been always loyal to the Government. For that purpose
the 'Freedmen's Bureau bill,' and 'the civil rights bill,' were ... adopted their sole object was to break down in the seceded States the system of oppression to which I have alluded. Their only effect was to give the right to hold real and personal estate to the negro, to enable him to sue and be sued in courts, to have the process of the courts for his protection, and to enjoy in the respective States those fundamental rights of person and property which cannot be denied to any person without disgracing the Government itself. It was simply to carry out that provision of the Constitution which confers upon the citizens of each State the privileges and immunities of citizens in the several States."
79 Globe 3035. 5 Globe 3041.
81 Even Senator Garrett Davis of Kentucky, an unreconstructed rebel (Fairman, op. cit. supra, n. 4 at 65, Bickel, op. cit. supra note 5, at 14, n. 36), could find nothing wrong with this provision except that it duplicated the provisions of "every State constitution, and the rights which it is intended to secure are regarded by all as a most important portion of American liberty, and there is no danger of the removal of the defenses which the States have thrown around them.” Globe App. 240.
82 Globe 3042.
House, expressed his keen disappointment at “so imperfect a proposition," but accepted it "because I live among men and not among angels. ..."84 And with but a few brief references, that was all the debate relevant to real property rights.
A few of the subsequent debates collected by Professor Fairman likewise reflect the universality of the first section. The Cincinnati Commercial understood it to abolish Black Codes and similar discriminatory legislation. A prominent Illinois Republican politician said that the rights of citizens it protected included "to sue and be sued, to own property ... to have protection for life, liberty, and property ... that the white or black man should collect his debt in court; that either should own and hold property that he pays for.” To Congressman Schenck, the amendment removed from Negroes "the weight of inequality in ... making contracts. . .," while Congressman Delano viewed it as a protection for northern whites traveling south. Senator Sherman said that it embodied the Civil Rights Bill "to make contracts, to sue and be sued, to contract and be contracted with." State legislatures or governors viewed it as an embodiment of the Civil Rights Bill,7 or a mere repetition of state bills of rights,** designed to eliminate unequal state legislation.
Several points remain to be discussed. The first is that the Fourteenth Amendment was intended to protect white persons as well as Negroes. Bingham repeatedly referred to his desire to protect "loyal white men ... against State statutes of confiscation and statutes of banishment." 30 Hotchkiss said that the "white man" as well as the "black man" would derive benefit from a proper constitutional amendment. When Senator Davis argued that the Civil Rights Bill discriminated against whites by creating “partial," special rights for Negroes, Trumbull replied:
"Sir, this bill, applies to white men as well as black men. It declares that all persons in the United States shall be entitled to the same civil rights, the right to the fruit of their own labor, the right to make contracts, the right to buy and sell ... a bill that protects a white man just as much as a black man. [How) can a Senator ... say... that this is a bill for the benefit of black men exclusively when there is no such distinction in it. ..." 82 And in state debates, the need to protect loyal southern whites, or northern whites traveling south, through the Fourteenth Amendment, was prominently mentioned.83
The second point is, as Garfield declared, that the amendment "was throughout the debate, with scarcely an exception, spoken of as a limitation on the power of the States." 04 State legislation primarily, and state action exclusively, was
84 Globe 3148.
85 In another debate Congressman George Julian, an Indiana Republican, stated that the Civil Rights Bill was designed to protect Negroes in their right to "make contracts and to own property." Globe 3209. Congressman John Baker, an Illinois Republican, thought the due process clause "a wholesome and needed check upon the great abuse of liberty which several of the States have practiced," apparently referring to Black Codes, Globe App. 256. And Congressman Samuel Shellabarger, an Ohio Republican, quoted Kent to the effect that "rights of protection of life and liberty, and to acquire and enjoy property" were national privileges which the amendment protected. Globe App. 293.
80 Fairman, op. cit. supra note 4, at 70–77.
87 Id. at 105-6, 113, 115, 117. See also Flack, The Adoption of the Fourteenth Amendment, 143-5, 149-50 (1908).
& Fairman, op. cit. supra note 4, at 109. 114.
90 Globe 1094. In the same remarks he referred to his desire "to protect the loyal white minority" in South Carolina, and declared that unless an amendment were passed, "the loyal minority of white citizens ... will be utterly powerless." Ibid. In a colloquy with Hale, he stated :
"Mr. Hale: It is claimed that this constitutional amendment is aimed simply and purely toward the protection of 'American citizens of African descent in the states lately in rebellion. I understand that to be the whole intended practical effect of the amendment.
“Mr. Bingham: It is due to the committee that I should say that it is proposed as well to protect the thousands and tens of thousands and hundreds of thousands of loyal white citizens of the United States whose property, by State legislation, has been wrested from them under confiscation, and protect them also against banishment."
91 Globe 1095. See also Globe 2536 (Eckley), note 78 supra.
92 Globe 599. Congressman Samuel W. Moulton of Illinois denounced Alabama "whose aristocratic and anti-republican laws, almost re-enacting slavery, among other harsh in. flictions impose an imprisonment of three months and a fine of $100 upon any one owning firearms, and a fine of fifty dollars and six months' imprisonment on any servant or laborer (white or black) who loiters away his time or is stubborn or refractory." Globe 1621.
83 Fairman, op. cit. supra note 4, at 90 ("a minority of whites so small as to be helpless"); 96 (“freedom of discussion . . . was not tolerated in the Southern States"); James, op. cit. supra note 65, at 159.
04 Cong. Globe, 42nd Cong., 1st Sess. App. 151 (1871).