CHAPTER XXVIII

THE FOURTEENTH AMENDMENT; ITS FRAMING, ADOPTION, AND INTERPRETATION

I. The Framing and Adoption.

The Fourteenth Amendment includes important provisions relating to: (1) citizenship, (2) privileges and immunities of citizens and due process of law, (3) apportionment of representatives in Congress among the states according to their respective numbers, (4) exclusion from office of persons who, having previously sworn to support the Constitution, had supported the rebellion, (5) the validation of debts incurred by the government during the Civil War, and the nullification of debts incurred in aid of the rebellion, and (6) power given Congress to enforce the provisions of the amendment by appropriate legislation.

The clause of greatest interest, generally called the “due process" clause, is that part of the first section which reads as follows: "Nor shall any state deprive any person of life, liberty or property, without due process of law." This part of the amendment was drafted by John A. Bingham of Ohio. Bingham had in mind the teachings of John Marshall. The protection of freedmen, ostensibly the purpose of the amendment, was merely the occasion of it. The effect of the amendment was to extend the power of the national government, and to subject many of the acts of states and municipalities to review by the federal courts. The radical leaders in Congress, while desiring to punish the South through the second, third, and fourth sections, and to elevate the position of the negro through the fifth

section (in addition to the Thirteenth and Fifteenth Amendments), also had in mind giving to the federal government, through section one, important powers heretofore enjoyed by the states. "They desired to nationalize all civil rights; to make the federal power supreme; and, to bring the private life of every citizen directly under the eye of Congress." Senator Roscoe Conkling declared the intent of the drafting committee was not only to raise the negro from bondage, but to include business interests and corporations seeking freedom from the interference of legislatures. The original proposal for the amendment was to this effect:

Congress shall have the power to make all laws which shall be necessary and proper to secure to the citizens of each state all privileges and immunities in the several states, and to all persons in the several states equal protection in the rights of life, liberty and property.

This provision was forced to yield to the present one, on the ground that Congress would be authorized to invade the proper legislative sphere of the states. It is important. only in showing the intent of the framers, which was finally realized in spite of the sacrifice in wording.

II. The Slaughter House Cases (16 Wallace, 36).

Facts. By act of March 8, 1869, the so-called "carpetbag" legislature of Louisiana, through the influence of corruption and bribery, chartered the Crescent City Live-stock Landing and Slaughter-House Company, and granted a monopoly of the slaughter-house business within certain parishes of the City of New Orleans to this corporation. Other butchers in this district had to use its plants and pay a fee for their use. Certain butchers, following this outrage organized the Butchers' Benevolent Association, which sought to invalidate the charter. They claimed: 1. The

charter creates an involuntary servitude forbidden by the Thirteenth Amendment. 2. It abridges rights and immunities of citizens under the Fourteenth Amendment. 3. It denies equal protection of the laws. 4. It deprives the independent butchers of their property without due process of law. The validity of the law was upheld by the state court. The case was taken to the Supreme Court on a writ of error.

Decision of the court.

1. The Louisiana statute, in the light of the history, purpose, and "pervading spirit" of the Fourteenth Amendment, does not violate it in any particular.

2. Under the amendment, the citizen is protected only in rights and immunities which flow from citizenship in the United States. The citizen must look to the state for protection of privileges and immunities flowing from state citizenship.

3. The amendment, in defining a citizen of the United States, did not increase privileges and immunities enjoyed by a citizen before its adoption; and only such rights existing in the government, its national character, its Constitution, or its laws, were protected by the national government.

4. It was not intended to bring within the power of Congress or the jurisdiction of the Supreme Court "the entire domain of civil rights heretofore belonging exclusively to the states." To do so "would constitute this court a perpetual censor upon all legislation of the states on the civil rights of their own citizens."

5. The privilege to slaughter animals and the right to immunity from monopoly of any business is a privilege

or immunity flowing from state, and not national, citizenship.

6. To come within the purview of this provision, the action of a state must be directed by way of discrimination against the negroes as a class, or on account of their

race.

The dissenting opinion. Judges Field, Swayne, Bradley, and Chief Justice Chase, dissenting, were of the opinion that the amendment should receive some construction which would make it effective, and this the majority opinion did not do. Such privileges and immunities as pertained only to citizens of the United States were adequately protected before the adoption of the Fourteenth Amendment. The monopoly was condemned as an indefensible violation of the rights of many for the benefit of a few. Moreover, such grants of exclusive privileges required no aid from a bill of rights to nullify them, and the plaintiffs were entitled to protection under the amendment. Said Judge Swayne:

By the Constitution, as it stood before the war, ample protection was given against oppression by the Union, but little was given against wrong and oppression by the states. That want was intended to be supplied by this Amendment. Against the former, this court has been called upon more than once to interpose. Authority of the same amplitude was intended to be conferred as to the latter. But this aim of our jurisdiction is, in these cases, stricken down by the judgment just given.

III. Munn v. Illinois (94 U. S., 113), and the Granger Cases.

Chief Justice Chase died May 7, 1873. His work was mainly that of constitutional interpretations growing out of the problems of the war and reconstruction. It was a controversial period; and the validity of the court's claim to its position as final arbiter on constitutional questions,

to maintain the balance provided by the framers, was put severely to the test. The record of the court, in spite of bitter criticism, was an honorable one.

Chief Justice Waite began his work on March 4, 1874, and served from Grant's second term through Cleveland's second administration. With the war and reconstruction problems out of the way, Waite dealt in the main with new social and economic issues, as the Granger laws, the regulation of interstate commerce, the question of public utilities and rates, strikes and industrial conflicts, and many other cognate subjects.

The industrial situation forms the background of Munn v. Illinois. There was at the time a great financial and industrial crisis. Prior to this, great areas of land had been granted to the railroads. Much state legislation was directed against railroads and warehouses. In Illinois, a law was passed in 1871, in compliance with the new Illinois constitution of 1870, which required the state legislature to enact laws "for the protection of producers, shippers and receivers of grain and produce." By this statute, warehouses were made quasi-public service corporations. Warehouses of a certain class were required to take out a license and to maintain fixed maximum rates on storage of grain. The law was attacked as depriving of life, liberty and property without due process of law, under the fourteenth amendment. One of the lawyers for the plaintiff, quoting the Illinois Supreme Court, declared that a government without the power to regulate is but the shadow of a government, and a mockery.

Decision of the court. Chief Justice Waite read the decision. The main questions were whether or not the Illinois legislature had the power to fix rates, and the meaning