17

that Congress could directly enforce the provisions of the Constitution against individuals,15 citing Article Four, Section Two, and in particular the fugitive slave laws. Shellabarger cited Moore v. Illinois 16 for the proposition that Congress might duplicate a state criminal code, and Prigg v. Pennsylvania " for the proposition that Congress could enforce the fifth section of the Fourteenth Amendment directly against individuals. The third section, Shellabarger asserted, was a remedy against state denial of equal protection, adding that the federal government did not have to wait until the state denying protection to citizens asked for federal aid. The fourth section was based on Ex parte Milligan. Thus, the entire speech shows that the state was designed to remedy state denials of equal protection by direct federal intervention against individuals." The first rebuttal to the bill was delivered by Representative Michael C. Kerr, a much respected Indiana Democratic lawyer. He asserted that the states possessed exclusive jurisdiction to make criminal codes," and that the negative limitations in that amendment were similar to the limitations of Article I, Section 10, which could not be enforced by Congress against individuals." He cited Cohens v. Virginia for the proposition that Congress had no general power to punish felonies, and concluded with a broadside attack on the bill as dangerous to liberty and states' right.24

23

20

Debate continued, with Representative William L. Stoughton, a Michigan Republican lawyer, setting forth testimony detailing Ku Klux Klan crimes. He asserted that the Klan was "an auxiliary of the Democratic Party," and further remarked:

"The relation of the Democracy to this order is precisely that of the receiver of stolen property to the thief. The murder of leading Republicans, terrifying the colored population, and putting whole neighborhoods in fear so that the Ku Klux can control an election, is heralded as a Democratic victory. * * * We may as well concede, Mr. Speaker, that if this system of violence is to continue in the South the Democratic party will secure the ascendency." 26

He concluded that

"When thousands of murders and outrages have been committed in the southern States and not a single offender brought to justice, when the State courts are notoriously powerless to protect life, person, and property, and when violence and lawlessness are universally prevalent, the denial of the equal protection of the laws is too clear to admit of question or controversy. Full force and effect is therefore given to section five, which declares that 'Congress shall have power to enforce by appropriate legislation the provisions of this article.'"

1127

Representative George F. Hoar, a Massachusetts Republican lawyer, declared that in South Carolina a state-wide conspiracy was intimidating the Republican majority by acts of violence from exercising their rights. He asserted that they had taken possession of the juries so that no matter what the evidence, Republicans always lost and Democrats always won. He added that although same was punishable under state law, the criminal remedies were not enforced for this class on account of any crime committed against them. Hoar concluded that such a government, although republican in theory, was not so in fact because it was "a government administered by a conspiracy under the pretense and under the form of republican security.” He added:

28

"But I may be asked, how do you distinguish the right to interfere in a case like this from the right to interfere in any case where there may be an imperfection in the administration of justice or incomplete security for human rights?

15 He cited Jones v. Van Zandt, U.S. (5 How.) 230.

16 55 U.S. (14 How.) 13 (1852).

17 41 U.S. (16 Pet.) 539 (1842).

18 71 U.S. (4 Wall.) 2 (1867).

19 42 (1) Globe app. 68-71 (1871).

20 He became the first Democratic Speaker of the House after reconstruction.

21 42 (1) Globe app. 46 (1871).

22 Id. at 48.

23 19 U.S. (6 Wheat.) 264 (1821).

24 42 (1) Globe app. 49-50 (1871).

25 Id. at 320.

26 Id. at 321.

27 Id. at 322.

But Representative George W. Morgan, an Ohio Democrat, denied that political crimes were widespread, and asserted that the South had been provoked by corrupt carpetbagger governments. Id. at 330-2.

28 Id. at 333.

Sir, criminals escape punishment in Massachusetts, in Vermont. A railroad company does not stand a fair chance for an impartial verdict before a Wisconsin jury. Is Congress to interfere? My answer to that is this: that it is not possible to draw an absolute logical line between these two cases. The difference is a difference of degree. To authorize the interference of Congress there must be, not merely those imperfections and failures in the administration of law which are attendant upon all civil governments alike, but there must be a clear case of denial of government. We cannot interfere to deal with the incidental evils which attend upon republican government; but we should interfere where *** these evils have attained such a degree as amounts to the destruction, to the overthrow, to the denial to large classes of the people of the blessings of republican government altogether." 29

30

Hoar went on to inquire what were the privileges and immunities of citizens, protected by the first section of the Fourteenth Amendment. He quoted from the oft-cited case of Corfield v. Coryell that they included protection of life, liberty, and property. Without noticing that the Privileges and Immunities Clause protected only citizens, while the Equal Protection Clause protected all persons, including aliens, Hoar reasoned that the latter clause would be surplusage if confined exclusively to "unlawful acts by the State authorities." therefore asserted:

He

"Now, it is an effectual denial by a State of the equal protection of the laws when any class of officers charged under the laws with their administration permanently and as a rule refuse to extend that protection. If every sheriff in South Carolina refuses to serve a writ for a colored man and those sheriffs are kept in office year after year by the people of South Carolina, and no verdict against them for their failure of duty can be obtained before a South Carolina jury, the State of South Carolina, through the class of officers who are its representatives to afford the equal protection of the laws to that class of citizens, has denied that protection. If the jurors of South Carolina constantly and as a rule refuse to do justice between man and man where the rights of a particular class of its citizens are concerned, and that State affords by its legislation no remedy, that is as much a denial to that class of citizens of the equal protection of the laws as if the State itself put on its statute-book a statute enacting that no verdict should be rendered in the courts of that State in favor of this class of citizens." "

In short, Hoar declared that a denial of justice might arise through a habitual refusal to act as well as through a law prohibiting action. He added that where the dominant group in a state was hostile to the rights of the minority, as the proslavery men in the South were to the anti-slavery men before the Civil War." state officials might take no action and let mobs commit crimes unhindered. He concluded that a far greater danger to liberty was to be apprehended from such lawlessness than from federal intervention.33

Representative Washington C. Whitthorne, a Tennessee Democratic lawyer, after minimizing Klan activities and crimes and extolling returning southern prosperity, took the novel position that the fifth section of the Fourteenth Amendment was intended to allow enforcement of all other sections except the first, a remarkable assertion which was certainly contrary to both the language and history of the amendment. He added that the bill was vexatious and would usurp state power. Representative William O. Kelley, a Philadelphia Radical Republican, replied that the South was steeped in poverty and ignorance, and that the Klan was bent on driving out all northern immigrants by violence. He declared that Democrats were always attacking new measures as unconstitutional, and asserted that the Klan was warring on Republicans and preventing the flow of northern capital to the South.

34

Id. at 333-4.

35

306 Fed. Cas. 546 (No. 3, 230) (C.C. Pa. 1823).

$1 42 (1) Globe 334 (1871).

He may well have been thinking of the incident in December, 1844, when his own father, ex-Representative Samuel Hoar, was driven out of South Carolina by a mob. See Biographical Directory of the American Congress, 1774-1927, p. 1103 (1928): 30 (2) Globe 418-9 (1849) (Rep. Hudson): 31 (1) Globe app. 123 (1850) (Sen. Clay); id. at app. 124 (Sen. Davis, Mass.), 33 (1) Globe app. 1012 (1854) (Sen. Sumner); 34 (1) Globe 1598 (1856) (Rep. Comins).

3342 (1) Globe 334-5 (1871).

34 Id. at 335-8.

Id. at 338-341.

65-506-66-pt. 1- -50

A Kentucky Democrat delivered a long tirade against the despotism which would result from the bill, the inequities of carpetbagger reconstruction governments in the South, and the exaggerations of Klan activity." Representative Austin Blair, a Republican lawyer and former Governor of Michigan replied that the southern state governments had failed to protect people against Klan whippings and murders." He added that the second section of the bill was necessary to protect the fundamental rights of citizens, and to clarify the Enforcement Act of 1870. He declared:

"We cannot indulge much in constitutional hair-splitting while citizens of the United States are denied the right to live. It will not do to be over particular as to the matter of whose duty it is to protect the citizens against armed bands of assassins who will not wait for our decisions. It ought to be the duty of both the State and the nation to do this; and if the State will not, the nation must."

Blair concluded by sneering at Democratic constitutional misgivings." A Tennessee Republican likewise asserted that states were not punishing klansmen, and also ridiculed persistent Democratic attacks on all measures as being unconstitutional.10

B. Farnsworth's attack

The first Republican attack on the bill came from Representative John F. Farnsworth, an Illinois Republican lawyer and veteran member of Congress, who had spoke and voted for the Fourteenth Amendment, and had been a Union general during the Civil War. He opened by asserting that the second section, stripped of surplusage, merely punished murder and other crimes. Shellabarger interrupted to say that it punished only conspiracies to violate constitutional rights.“ To this Farnsworth replied that the allegation of conspiracy added nothing, since the Fourteenth Amendment spoke of States, citizens, and persons. Hence he reasoned that if Congress could punish a conspiracy it could punish the same act done individually. Farnsworth also noted, with Shellabarger's concurrence, that under the third section of the bill a denial of equal protection could be created by mere inaction of state officers."

He

Farnsworth then launched into an extended recapitulation of the legislative history of the first section of the Fourteenth Amendment, reading copiously from the Congressional Globe for 1866. He recounted how a proposed constitutional amendment had been reported by Representative John A. Bingham, an Ohio Re publican lawyer, which would have directly permitted Congress to enforce the privileges and immunities of citizens, and equal protection to all persons. read excerpts from the speeches of Republicans opposing the proposal as giving Congress too much power. Farnsworth then observed that the proposal was shelved in favor of the present version of the Fourteenth Amendment. He read from the opening speech of the late Representative Thaddeus Stevens, made May 8, 1866, in advocating the first section of the Fourteenth Amendment as a limitation on state legislation, particularly emphasizing that Stevens was leader of the House Radical Republicans. The following colloquy then occurred: "Mr. FARNSWORTH. ***Whatever law protects the one shall protect the other, and the same redress shall be afforded by law to one as to the other.

"Mr. SHELLABARGER. Read that just as Mr. Stevens said it. * in two words.

You put

"Mr. FARNSWORTH. I did, yes. The gentleman is very captious; he certainly stands upon slippery ground if he needs to be so technical. "Mr. SHELLABARGER. Read just what Mr. Stevens said.

Id. at 351-7 (Rep. James B. Back). See also id. at app. 74-75 (Rep. Fernando Wood); id. at 357 (Rep. Charles A. Eldridge).

37 Id. at app. 72. He observed:

** the State Governments fail to afford protection to the people. The Klans are powerful enough to defy the State authorities. In many instances they are the State authorities. And if you deny to the General Government the authority to intefere, then there is no remedy anywhere. To wait until the State calls for assistance to suppress the disorders is to wait, in many instances, for a voice from the grave. The States are prostrate before a power they cannot control."

28 Id. at App. 73.

39 Id. at App. 73-4.

40 Id. at App. 310 (Rep. Horace Maynard).

41 Id. at App. 113.

42 Id. at App. 114.

"Mr. FARNSWORTH. Does not every man in the House know that Mr. Stevens is talking about the law of the State, not the administration of the law? This is what he says: "That the law which allows a white man to testify shall allow a black man also.'

"Mr. SHELLABARGER. Mr. Stevens said that every man should have equal means of protection, and if my friend says the administration of the law is not the means of protection

"Mr. FARNSWORTH. This is what he says: 'Whatever law protects the white man shall afford "equal" protection to the black man. Whatever means of redress.' What does he mean by 'means of redress?'

"Mr. SHELLABERGER. Execution of the laws.

"Mr. FARNSWORTH. My friend is a very able lawyer; why is he so technical? Mr. Stevens is speaking of the means of redress afforded by the law, not by the justice of the peace, or the constable, or the jury. ***

"Mr. SHELLABARGER. By the administration of the law also.

"Mr. FARNSWORTH. *** we all know, and especially those of us who were members of Congress at that time, that the reason for the adoption of this amendment was because of the partial, discriminating, and unjust legislation of those States, under governments set up by Andrew Johnson, by which they were punishing and oppressing one class of men under different laws from another class."

99 43

Farnsworth continued to emphasize his position that the first section of the Fourteenth Amendment covered only discriminatory state legislation and not a failure to protect by officials, by citing other speeches only mentioning such legislation as the evil in view, while Shellabarger, emphasizing his point, noted that the third section assumed that a state had denied protection to some of its citizens before the bill would become operative." Farnsworth concluded that, unlike Hoar, he was not in favor of centralization. He denied that the fifth section of the Fourteenth Amendment authorized the passage of the bill, which he said would create "one grand, despotic, central Government at Washington *** 45

c. Bingham's exposition

Bingham spoke right after Farnsworth. He commenced by asserting that as a general principle Congress had always, since 1789 when the original Constitution was ratified, had the power to enforce the Constitution both against individuals as well as states, giving as an illustration a statute passed in 1795 allowing the President to call forth the militia to execute the laws of the Nation when these laws could not be executed by ordinary judicial proceedings because of opposition by large combinations." Citing other precedents as well, he concluded that the general power of the national government to act on both states and combinations of individuals “is a closed question, absolutely closed.” “ Bingham therefore concluded that

"If it was competent heretofore to give the President power to enforce by arms the faithful execution of the laws against unlawful combinations of men, surely it is equally competent, to make the fact of such combinations a crime punishable in your courts."

1948

Bingham then launched into an exposition of why he had revised the first draft of the first section of the Fourteenth Amendment. He quoted Farnsworth's speech in 1866 in favor of the Equal Protection Clause, and asserted that the fifth, or enforcement, section applied to this clause as well as all others in the amendment. He declared that he changed the amendment to conform to the form of the negative limitations on the states as found in Article I, Section 10 of the original Constitution, following some language by Chief Justice John Marshall

45 Id. at app. 117. He observed:

"The first section of the amendment requires no legislation; 'it is a law unto itself;' and the courts can execute it. If it requires enforcing' legislation, what kind does it require? Certainly not a law which goes a long way beyond the scope of the provision. The Constitution cannot be extended by the law. It is very clear to my mind that the only legislation' we can do is to 'enforce' the provisions of the Constitution upon the laws of the State." 461 Stat. 424, ch. 36 (1795). He also cited Martin v. Mott, 25 U.S. (12 Wheat.) 19 (1827).

47 42 (1) Globe app. 81-82 (1871).

48 Id. at 83.

in Barron v. Baltimore."9 Bingham then launched into a peroration on the bill of rights as the privilege of citizens. After reviewing these rights, he asserted that the general power of the national government to enforce its laws applied to the Fourteenth Amendment equally with other provisions, and "does not depend on the plighted faith of the States as States to support it." Rather, he asserted that the Constitution "relies on individual duty and obligation." Bingham added that the national government need not rely on States to execute the limitations on their power, although they had concurrent power with the national government to do so. Bingham said that Congress should provide in advance "against the denial of rights by States, whether the denial be acts of omission or commission, as well as against the unlawful acts of combinations and conspiracies against the rights of the people." He added:

"The States never had the right, though they had the power, to inflict wrongs upon the free citizens by a denial of the full protection of the laws; because all State officials are bound by oath or affirmation to support the Constitution. As I have already said, the States did deny to citizens the equal protection of the laws, they did deny the rights of citizens under the Constitution, and except to the extent of the express limitations upon the States, as I have shown, the citizen had not remedy. They denied trial by jury, and he had no remedy *** If I am not right in asserting that the negative limitations imposed by the Constitution on States can be enforced by law against individuals and States, then the Government was wrong from the administration of Washington down" 50

Bingham gave as an example of enforcing a negative limitation on a state against an individual, a case where a state set up a system of slavery and one individual tried to enslave another pursuant thereto. Bingham asserted that Congress could directly punish the individual for acting pursuant to such a state law. He adverted to the Enforcement Act of 1870, which set aside the constitutions and laws of half the states and punished individuals depriving Negroes of the right to vote pursuant to those state laws. He concluded that the federal government could only punish men, and not states.2

31

In Bingham's view, the statute was perfectly consistent with the Fourteenth Amendment as a limitation on states only. In his eyes, any individual attempting to enforce an unconstiutional state law could be punished by the federal government. Likewise, any combination strong enough to be able to force a state official to violate their constitutional duty by depriving a citizen of his privileges or equal protection could likewise be punished. Thus, a Klan group which was so powerful that it could intimidate a state judge, prosecuting attorney, and sheriff, into not affording protection to Negroes, by trying the murderers of Negroes, by which this combination compelled a state to deny equal protection of the laws, would be punishable under federal authority pursuant to the fifth section. One such case, at least, was reported to the House only a month before Bingham's speech."3

49 32 U.S. (7 Pet.) 243 (1833). He declared:

"I answer the gentleman, how I came to change the form of February to the words now in the first section of the fourteenth article of amendment, as they stand ***. 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. the Mayor and City Council of Baltimore, wherein the Chief Justice said, in obedience to his official oath and the Constitution as it then was:

"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 reexamining that case of Barron, Mr. Speaker, after my struggle in the House in February, 1866, to which the gentleman has alluded, 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. As they had said 'no State shall emit bills of credit, pass any bill of attainder, ex post facto law, or law impairing the obligations of contracts;' imitating their example and imitating it to the letter. I prepared the provision of the first section of the fourteenth amendment as it stands in the Constitution * * ." 42(1) Globe app. 84 (1871).

50 Id. at 85.

51 16 Stat. 140 (1870).

52 42(1) Globe App. 85-86 (1871).

53 H.R. Rep. No. 37, 41st Cong., 3rd Sess. 2 (1871).