03 intended to be limited, not only by Bingham, but by the others as well. No restrictions were to be imposed on private individuals or groups. Finally, the first section, and especially the due process clause, was intended to be a substantive, as well as a procedural, limitation on government." Bingham, as previously noted, had referred Rogers to court decisions for the meaning of the due process clause," and these had firmly established the interpretation that the clause limited legislative action impairing vested property rights or interests." Bingham declared that "cruel and unusual punishments have been inflicted under State laws" but the federal constitution did not intervene," that states "took property without compensation, and [citizens] had no remedy," 100 and that "liberty. . . is the liberty to work in an honest calling and contribute by your toil in some sort to the support of yourself. . . and to be secure in the enjoyment of the fruits of your toil." 101 Bingham not only considered the due process clause substantive, but was "a man who held thoroughly Lockian views concerning the sanctity of property" 102 and "property rights by his view are thus virtually absolute." 103 Moreover, Bingham intended to secure not only property rights, but freedom of association and freedom of choice as well. He said: "Sir, before the ratification of the fourteenth amendment, . . a State, as in the case of the State of Illinois, could make it a crime punishable by fine and imprisonment for any citizen within her limits, in obedience to the injunction of our divine Master, to help a slave who was ready to perish; to give him shelter, or break with him his crust of bread. The validity of that State restriction upon the rights of conscience and the duty of life was affirmed, to the shame and disgrace of America, in the Supreme Court of the United States; Id. at 83-4, where Bingham said: "allow me to say, further, that by the text of the Constitution as you remember it there are negative limitations upon the power of the States; as, for example, that no State shall make an ex post facto law; These are of the negative limitations on the power of the States in the original text of the Constitution. But, says the gentleman to me, why did you change the amendment of February, 1866? Sir, I sat at the feet of that great man, John Marshall, foremost of all the judges, in the hope that by his guidance, the amendment might be so framed that in all the hereafter, it might be accepted by the historian of the American Constitution and her Magna Charta 'as the keystone of American liberty.' . . . I had read-and that is what induced me to attempt to impose by constitutional amendments new limitations upon the power of the States-the great decision of Marshall in Barron vs. Baltimore, where the Chief Justice said "The amendments [to the Constitution] contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them.' 7 Peters, p. 250. In this case the city had taken private property for public use, without compensation as alleged, and there was no redress for the wrong in the Supreme Court of United States; and only for this reason, the first eight amendments were not limitations on the power of the States. * "In reexamining that case of Barron. * I noted and apprehended as I never did before, certain words in that opinion of Marshall. Referring to the first eight articles of amendments to the Constitution of the United States, the Chief Justice said: 'Had the framers of these amendments intended them to be limitations on the powers of the State governments they would have imitated the framers of the original Constitution, and have expressed that intention.' Barron vs. The Mayor, etc.. 7 Peters 250. Acting upon this suggestion, I did imitate the framers of the original Constitution." See the remark of Senator Frelinghuysen of New Jersey that "The fourteenth amendment goes much further than merely establishing equality' between whites and blacks." Cong. Globe, 42nd Cong., 1st Sess. 500 (1871). Supra, n.53. 98 The cases are fully collected in Howe, The Meaning of "Due Process of Law" Prior to the Adoption of the Fourteenth Amendment, 18 Calif. L. Rev. 583 (1930). See also Corbin, The Doctrine of Due Process of Law Before the Civil War, 24 Harv. L. Rev. 366, 460 (1911). It might also be noted that the adoption of the due process and equal protection clauses was foreshadowed at the 1860 Republican National Convention. Paragraph 8 of the Platform stated: "that as our republican fathers ordained that no person should be deprived of life, liberty, or property without due process of law, it becomes our duty, by legislation, whenever such legislation is necessary, to maintain this provision of the constitution against all attempts to violate it. Likewise, a special resolution moved by Joshua R. Giddings of Ohio and adopted by the convention stated: "Resolved, That we deeply sympathize with those men who have been driven, some from their native States and others from the States of their adoption, and are now exiled from their homes on account of their opinions; and we hold the Democratic Party responsible for the gross violation of the clause of the Constitution which declares that citizens of each State shall be entitled to all privileges and immunities of the citizens of the several States." 1 Curtis, The Republican Party 357, 361 (1904). Globe 2542. 100 Cong. Globe, 42nd Cong., 1st Sess. App. 85 (1871). He also said: "The Government owes high and solemn duties to every citizen of the country. It is bound to protect him in his most important rights. Has he any rights more important than the rights of life, liberty, and property?" Ibid. 101 Id. at 86. 102 Graham, The "Conspiracy Theory" of the Fourteenth Amendment, 47 Yale L.J. 371, 401 (1938). 103 Id. at 398. but nevertheless affirmed in obedience to the requirements of the Constitution." (14 Howard, 19-20, Moore vs. The People.) 104 This statement is very significant. In Moore v. Illinois,105 the Supreme Court upheld a staute forbidding the assisting of runaway slaves based on "the police power . . to protect themselves against the influx either of liberated or fugitive slaves, and to repel from their soil a population likely to become burdensome and injurious, either as paupers or criminals ... [This conduct tends] to destroy the harmony and kind feelings which should exist between citizens of this Union, to create border feuds and bitter animosities, and to cause breaches of the peace, violent assaults, riots and murder. No one can deny or doubt the right of a state to defend itself against evils of such magnitude..." " 106 Here we see that Bingham has intended to embody in the Fourteenth Amendment the right of individuals to associate or not to associate with each other based on individual decision even as against a great compelling public need satisfied through an exercise of the police power. If the police power cannot restrain freedom of choice even to preserve the public peace and safety. preserve harmony with other states, and prevent a flood of paupers and criminals, it is obvious that the amendment secures it beyond infringement as an absolute right. VI. Summary and Conclusions Several firm conclusions can be drawn from an analysis of the legislative history of the Fourteenth Amendment. They are: 1. The framers considered property rights to be fundamental, and intended to limit State power to impair them. 2. Congress intended to restrict state legislation primarily, and state action exclusively. Private individuals were not restricted. 3. Congress intended to assure that states would not deprive Negroes of the capacity to own land or make contracts. The phrase in the debates and the Civil Rights Bill about the "right" to make contracts or own property simply means that state laws shall not prevent a willing seller. testator, or donor from conveying property to a Negro, or a willing person from contracting with him. It does not confer on a Negro power to compel unwilling testators to devise property to them, unwilling owners to give, lease, or sell them property, or anybody to contract with anybody else, nor does it authorize states to do so. Beyond this, it is impossible to say exactly what the framers of the Fourteenth Amendment intended. No one had ever dreamed at that time of enacting anti-discrimination laws requiring unwilling owners of houses to sell or rent them to Negroes. But the amendment, framed by Bingham, one of the firmest believers in property rights, and not by the equalitarian Stevens, who was disappointed in it, offers little comfort to proponents of such laws. It restricted state laws to enlarge individual rights, and not the converse. How would Bingham, the conservative Republican corporation lawyer from Ohio, have been struck by a law requiring an unwilling owner to sell to or rent to, or an unwilling resident to live near, people he did not want to do so? Would it have offended his notion of due process? In a recent case, one judge protested that "The Fair Housing Act of 1959 ... would compel Case to transfer his residential property to the Rhones, not voluntarily, but under compulsion, with sanctions that might lead to imprisonment for failure to comply." 107 This protest seems remarkably like a 1795 case which held that "The legislature. . . had no authority to make an act divesting one citizen of his freehold, and vesting it in another . . . it is contrary to the principles of social alliance in every free government; . . . it is contrary both to the letter and spirit of the constitution." 108 It seems surprisingly like a 1798 United States Supreme Court case holding that a "law that takes property from A and gives it to B; it is against all reason and justice, for a people to entrust a legislature with such powers; and therefore, it cannot be presumed that they have done it." 100 Were these concepts part of the notions of Bingham, the conservative man of property, about "due process," as he wrote them into the Fourteenth Amendment? They may very well have been. 104 Cong. Globe. 42nd Cong., 1 st Sess. App. 84 (1871). 105 55 U.S. (14 How.) 13 (1852). 100 Id. at 18. 107 Colorado Anti-Discrimination Comm. v. Case, dissenting opinion of Hall, J. P.2d 108 Van Horne's Lessee v. Dorrance, 2 U.S. (2 Dall.) 304, 310 (1795). 100 Calder v. Bull, 3 U.S. (3 Dall.) 386, 388 (1798). (Colo. 1962). [Reprinted with permission of copyright owners, Columbia Law Review] THE CIVIL RIGHTS ACT OF 1875: SOME REFLECTED LIGHT ON THE FOURTEENTH AMENDMENT AND PUBLIC ACCOMMODATIONS ALFRED AVINS* Civil rights and "places of public accommodation" have been the subject of innumerable exhausting analyses by scholarly and partisan commentators alike. Yet the remarkable fact is that little light has been shed on the framers' understanding of the relevance of the fourteenth amendment to "places of public accommodation." To some extent, the failure to concentrate on the intended meaning of that amendment must be attributed to a dearth of legislative history. Aside from some isolated strands of declamation touching on public accommodations, there is little in the debates on the fourteenth amendment which would ground a firm determination of framers' intent. But the present vague understanding of the relationship of the amendment to places of public accommodation must also be ascribed to the manifest desire of many to expand federal control over a broad sphere of local activities. Quite understandably, these proponents of federal action are content to declare the intent of the framers to be too ambiguous or even lost forever and then to construe the amendment according to its "broad purposes." But if one really desired to discover that intent, the logical step would be to investigate expressions of intent in sources other than the actual debates on the amendment; little effort has heretofore been made in this direction. Efforts to determine the meaning of one of the amendments are met with the stock reply that there can be no controlling intent; since each state had to ratify the amendment, no one body, including Congress, can be relied on as a source of intent. But in reality, Congress alone was the framer of the fourteenth amendment: the states had to act on the amendment on a take-it-orleave-it basis. And, some states had to take the amendment, regardless of what they thought of it, or they would face continued status as a conquered territory. Finally, those who prefer a vague understanding of the fourteenth amendment fall back upon the notion that the intent of a century ago is not relevant to the problems of today; and again, they conclude that the amendment must * Professor of Law, Memphis State University. B.A., Hunter College, 1954; LL.B., Columbia, 1956; LL.M., New York University, 1957; M.L., University of Chicago, 1961; J.S.D., 1962; Ph.D., University of Cambridge, 1965. 1. A review of the many cases and articles is contained in Lewis, The Sit-In Cases: Great Expectations, 1963 SUPREME COURT REVIEW 101; Van Alstyne & Karst, State Action, 14 STAN. L. REV. 3 (1961). 2. See Bickel, The Original Understanding and the Segregation Decision, 69 HARV. L. Rev. 1, 11 n.30, 29, 56-59 (1955). Even the Congressional discussion of property rights, which is far more extensive, contains little of value bearing directly on places of public accommodation. See Tansill, Avins, Crutchfield & Colegrove, The Fourteenth Amendment and Real Property Rights, in OPEN OCCUPANCY vs. FORCED HOUSING UNDER THE FOURTEENTH AMENDMENT 68 (Avins ed. 1963). 65-506 0-66-pt. 1-46 be construed to achieve its broad purposes. Of course, the Constitution must be interpreted to meet new conditions, but the basic understanding of the framers cannot be discarded by a veiled, albeit deceptively appealing, judicial or legislative amendment. As the Senate Judiciary Committee stated in 1872: In construing the Constitution we are compelled to give it such interpretation as will secure the result which was intended to be accomplished by those who framed it and the people who adopted it. The Constitution, like a contract between private parties, must be read in the light of the circumstances which surrounded those who made it. ... If such a power did not then exist under the Constitution of the United States, it does not now exist under this provision of the Constitution, which has not been amended. A construction which should give the phrase "a republican form of government" a meaning differing from the sense in which it was understood and employed by the people when they adopted the Constitution, would be as unconstitutional as a departure from the plain and express language of the Constitution in any other particular. This is the rule of interpretation adopted by all commentators on the Constitution, and in all judicial expositions of that instrument; and your committee are satisfied of the entire soundness of this principle. A change in the popular use of any word employed in the Constitution cannot retroact upon the Constitution, either to enlarge or limit its provisions.3 A general vague understanding of the fourteenth amendment is simply not a sufficient basis on which to decide great issues of the day. Rather, the basic intent of the Congress which passed the amendment should be controlling in present-day applications of the amendment. Although "basic intent" and "broad purposes" appear to be only semantic variations of the same idea, a critical distinction in meaning appears when the terms are used in construing the fourteenth amendment's relation to places of public accommodation. Those who favor greater federal control over local activities take the view that the broad Congressional purpose was to achieve equal opportunities and privileges in general and thus conclude that wherever there is discrimination against Negroes the federal government may intervene. Achievement of equal. rights and privileges may have been a general goal of Congress, but, as will be shown hereafter, the framers felt that the congressional authority to intervene to ensure equality was clearly limited by the Constitution. I. THE FRAMERS' INTENT: AN ALTERNATIVE SOURCE Efforts to ascertain the intent of the framers of the fourteenth amendment have generally been limited to the direct light shed from the debates on the amendment itself; unfortunately, as noted above, these debates are virtually unenlightening with respect to places of public accommodation. But the debates 3. S. REP. No. 21, 42d Cong., 2d Sess. 2-3 (1872). The three senators on the committee who voted for the fourteenth amendment were Trumbull, Conkling, and Edmunds, See note 6 infra. on the nearly contemporaneous Civil Rights Act of 18751 do produce a clear, although reflected, image of the framers' view of the fourteenth amendment, particularly as it was thought to apply to places of public accommodation. As finally passed, the first section of the Act provided: That all persons within the jurisdiction of the United States shall be That the enactment should have reflected the intent of the framers of the fourteenth amendment is clear since sixteen of the thirty-three Senators and several of the Representatives who voted for the fourteenth amendmentR par 4. 18 Stat. 335 (1875). 5. 18 Stat. 336 (1875). 6. The following senators voted for the fourteenth amendment and sat in the 42d Congress: Lyman Trumbull (R.-Ill.); Samuel C. Pomeroy (R.-Kans.); Lot M. Morrill (R.-Maine); Charles Sumner (R.-Mass.); Henry Wilson (R.-Mass.); Zachariah Chandler (R.-Mich.); Alexander Ramsey (R.-Minn.); William Stewart (R.-Nev.); James W. Nye (R.-Nev.); Aaron H. Cragin (R.-N.H.); John Sherman (R.-Ohio); Henry B. Anthony (R.-R.I.); William Sprague (R.-R.I.); George F. Edmunds (R.-Vt.) ; Luke P. Poland (R.-Vt.); Timothy O. Howe (R.-Wis). Poland served as a member of the House of Representatives in the 42d and 43d Congresses. Garrett Davis (D.-Ky.), who also sat in the 42d Congress voted against the fourteenth amendment. The following Senators who did not vote on the amendment sat in the 39th Congress and the 42d Congress: James Harlan (R.-Iowa); Thomas W. Tipton (R.-Neb.); Frederick T. Frelinghuysen (R.-N.J.); Joseph S. Fowler (R.-Tenn.); John P. Stockton (D.-N.J.). Morrill, Sumner, Chandler, Ramsey, Tipton, Stewart, Cragin, Frelinghuysen, Stockton, Sherman, Anthony, Sprague, Edmunds and Howe also sat in the Senate during the 43d Congress. The following members of the House of Representatives of the 39th Congress (all Republicans), sat in the Senate, 42d Congress: Thomas W. Ferry (Mich.); William Windon (Minn.); Phineas W. Hitchcock (Neb.); James W. Patterson (N.H.); Roscoe Conkling (N.Y.); Justin S. Morrill (Vt.). Ferry, Windon, Conkling and Morrill voted for the fourteenth amendment. In addition to the above, the following Republicans sat in the Senate of the 43d Congress who, as members of the House of Representatives of the 39th Congress voted for the amendment: William B. Allison (Iowa); George S. Boutwell (Mass.); William B. Washburn (Mass.). James W. Nesmith (D. Ore.) sat in the Senate of the 39th Congress, but was absent at the time of the vote on the amendment, and in the House of Representatives of the 43d Congress. Patterson did not sit in the Senate of the 43d Congress. The following members of the House of Representatives, 39th Congress, sat in the House, 42d Congress: Burton C. Cook (R.-Ill.); John F. Farnsworth (R.-Ill.); John Lynch (R.-Me.); Oak Ames (R.-Mass.); Nathaniel P. Banks (R.-Mass.); Henry L. Dawes (R.-Mass.); Samuel Hooper (R.-Mass.); William P. Washburn (R.-Mass.); John H. Ketcham (R.-N.Y.); John A. Bingham (R.-Ohio); James A. Garfield (R.Ohio); Samuel Shellabarger (R.-Ohio); William O. Kelley (R.-Pa.); Ulysses Mercur (R.-Pa.); Leonard Myers (R.-Pa.); Glenni W. Scofield (R.-Pa.); Philetus Sawyer (R.-Wis.); Samuel S. Marshall (D.-Ill.); Michael C. Kerr (D.-Ind.); William E. Niblack (D.-Ind.); Daniel W. Voorhees (D.-Ind.); James Brooks (D.-N.Y.); Samuel J. Randall (D.-Pa.); Charles A. Eldridge (D.-Wis.). Of the above, Marshall, Niblack, Dawes, Hooper, Garfield, Kelley, Myers, Randall, Scofield, Eldridge, and Sawyer also sat in the House of Representatives, 43d Congress. In addition, the following Representatives who sat in the 39th Congress but not the 42d Congress sat in the 43d Congress: Godlove S. Orth (R.-Ind.); John A. Kasson (R.-Iowa); Robert S. Hale (R.-N.Y.); Hezekiah S. Bundy (R.-Ohio); William Lawrence (R.-Ohio); Charles O'Neill (R.-Pa.); William E. Finck (D.-Ohio). |