XIV Amendment and incorporation

[elektratig]

JT,

Before we leave Senator Howard, it’s worth noting that his statements concerning the Fourteenth Amendment and Section 1 received significant press coverage. Articles appeared on the front pages of the New York Times and the New York Herald and were printed in the National Intelligencer, the Philadelphia Inquirer, the Chicago Tribune and the Baltimore Gazette, among others.

Moving on, Senator Luke P. Poland (Republican, VT) indicated no disagreement with Senator Howard. To the contrary, Senator Poland said that the Amendment had been so elaborately and ably discussed that he would not discuss it at length or in detail.

In common with many Republicans, Senator Poland seems to have believed that the Constitution, properly construed, had always required the States to protect fundamental rights, for he expressed the opinion that the privileges or immunities clause secured “nothing beyond what was intended” by the similar provision of Article IV, Section 2. Slavery had led “to a practical repudiation of the existing provision on this subject, and it was disregarded in many of the states. State legislation was allowed to override it.” It became “really a dead letter.”

In addition, Senator Poland analyzed Section 1 as follows:

“It is essentially declared in the Declaration of Independence and in all the provisions of the Constitution. Notwithstanding this we know that State laws exist, and some of them of very recent enactment, in direct violation of these principles. Congress has already shown its desire and intention to uproot and destroy all such partial State legislation in the passage of what is called the civil rights bill.... It certainly seems desirable that no doubt should be left existing as to the power of Congress to enforce principles lying at the foundation of all republican government if they be denied or violated by the States.”

The reference to “State laws . . . of very recent enactment” almost certainly alludes to laws passed by southern states restricting the right to bear arms, and the reference to "all the provisions of the Constitution” almost certainly includes the Bill of Rights, and the Second Amendment in particular. Congress had recently received a report complaining about the passage of laws in southern States depriving returning freedmen, recently discharged from the Union Army, of the right to carry arms (the penalties included flogging). In response, just days before Senator Poland’s speech, the House had passed the second Freedmen’s Bill, which contained a provision protecting “the constitutional right to bear arms.” (Ironically, the jurisdictional basis for the provision was the Thirteenth Amendment – reflecting the fact that many Republicans believed that that amendment had already imposed the Bill of Rights on the States.)

In short, Senator Poland may have had a mistaken understanding of the original meaning of the Privileges and Immunities Clause in Article IV. However, any reasonable person listening to Senator Poland’s comments in 1866 would have had every reason to believe that his views concerning Section 1 were entirely in accord with those previously expressed by Senator Howard and that Senator Poland believed that Section 1 would forbid States from depriving their citizens of their basic rights, including those embodied in the Bill of Rights.

[unionblue]

John Taylor & elektratig,

I have been following your debate with much interest and am enjoying it very much.

I found a site that may or may not contribute to your ongoing discussion.

The Antebellum Political Background of the 14th Amendment:
http://www.law.duke.edu/journals/lcp...er2004p175.htm

I would appreciate your comments on the site and if it in any way helps with either of your positions.

Sincerely,
Unionblue

[elektratig]

Unionblue,

Thanks for the kind words. I had not read the article; thanks for pointing it out. I think the article makes a couple of significant points.

First, the mindset of the Republicans who passed the Amendment was radically different from that of the Framers. The latter, for the most part, saw the new, central government they were creating as a potential threat to liberty. Based upon their experiences, they did not have similar fears concerning the state governments. To the contrary, those governments had served as the springboards to liberty; the states were part of the solution, not part of the problem. With minor exceptions, therefore, the Constitution did not seek to check state infringements of individual liberties.

By the time of the 39th Congress, there had been a sea-change in thinking. The Republicans who dominated that Congress had come to regard the central government as the defender of freedom and the States as the threats to that freedom. War tends breed radicalism, and I think that in trying to understand the meaning of Section 1 of the Amendment in particular, an honest assessment of “original understanding” must acknowledge and take that radicalism into account. As these men saw it, correctly or incorrectly, their country had been torn apart by States whose governments had suppressed liberties and were doing it again. Indeed, as they saw it, the denial of fundamental civil rights had contributed directly to the War. They were determined to stamp it out.

This is not to say that all Republicans were in agreement in all respects. In particular, there was a division between Republicans who believed that black men should be given the right to vote – traditionally viewed as a “political” right that was not essential to citizenship (after all, women and children were citizens but could not vote) – and those who believed that blacks should have only “civil” rights, excluding the right to vote and other “political” rights. However, there was remarkable agreement by the end of the War among Republicans in Congress that blacks were citizens entitled to the “privileges or immunities” of national citizenship that were the right of all citizens.

Second, the article correctly suggests that the Amendment was an intensely political document. Nowadays, and for the past 130 years or so, we have focused almost exclusively on Section 1, which contains the Citizenship Clause, the Privileges or Immunities Clause, the Due Process Clause and the Equal Protection Clause. At the time, however, Republicans focused at least as much on Sections 2 through 5, which addressed immediate political issues. Thaddeus Stevens, for example, said that he considered Section 2, which reduced the representation in Congress of States that excluded adult males from the franchise, as the most important part of the Amendment. The immediate political advantages to Republicans are obvious. Likewise, Section 5, which gave Congress power to enforce the Amendment by appropriate legislation, placed tremendous coercive political power in the hands of Congress – i.e., Republicans.

However, reading the Amendment as a political document and as a whole only reinforces its radical nature. Men who were willing to penalize States if they failed to grant black men the franchise – the ultimate political right – were certainly willing to impose civil rights on the States, particularly when it gave their party tremendous political advantage to do so.

[JohnTaylor]

Originally Posted by elektratig

JT,

Originally Posted by elektratig

Before we leave Senator Howard, it’s worth noting that his statements concerning the Fourteenth Amendment and Section 1 received significant press coverage. Articles appeared on the front pages of the New York Times and the New York Herald and were printed in the National Intelligencer, the Philadelphia Inquirer, the Chicago Tribune and the Baltimore Gazette, among others.

Elektratig, thanks for a thoughtful response. Did Curtis provide info on how Howard’s speech was reported? I mean, did he report the headlines of the news stories? Did the National Intelligencer have a headline that stated “Howard on the Constitutional Amendment: Bill of Rights now to restrict (or apply to) the States?” Or did they, as was common for the period, report his speech word for word. If it was the former, then that would certainly bolster your contention. Even the latter (full transcript) would help. Or was Howard's his speech excerpted in the papers? Does Curtis say?

Originally Posted by elektratig

Moving on, Senator Luke P. Poland (Republican, VT) indicated no disagreement with Senator Howard. To the contrary, Senator Poland said that the Amendment had been so elaborately and ably discussed that he would not discuss it at length or in detail.

In common with many Republicans, Senator Poland seems to have believed that the Constitution, properly construed, had always required the States to protect fundamental rights, for he expressed the opinion that the privileges or immunities clause secured “nothing beyond what was intended” by the similar provision of Article IV, Section 2. Slavery had led “to a practical repudiation of the existing provision on this subject, and it was disregarded in many of the states. State legislation was allowed to override it.” It became “really a dead letter.”

If Poland believed that the Federal Bill of Rights applied to the States, he was wrong. A contention supported by John Marshall’s ruling in Barron v. Baltimore. Poland knew of this case (even if he disagreed with the ruling). I read Poland’s speech last night in its entirety, and he seemed to be making the case that Article IV of the Constitution was a dead letter because there was no enforcement clause for the privileges and immunities clause of the Constitution. That is what he was saying was a dead letter.

Originally Posted by elektratig

In addition, Senator Poland analyzed Section 1 as follows:

“It is essentially declared in the Declaration of Independence and in all the provisions of the Constitution. Notwithstanding this we know that State laws exist, and some of them of very recent enactment, in direct violation of these principles. Congress has already shown its desire and intention to uproot and destroy all such partial State legislation in the passage of what is called the civil rights bill.... It certainly seems desirable that no doubt should be left existing as to the power of Congress to enforce principles lying at the foundation of all republican government if they be denied or violated by the States.”

What I make of this paragraph is that Poland wanted to ensure that the Civil Rights Bill was not going to be challenged and potentially be overturned because Congress had, as yet no (or limited) authority to enforce such a bill. Amending the Constitution to specifically enable Congress to pass such an act would prevent the judiciary from over-turning the protections of that bill. That is why I provided the privileges and immunities embodied by that bill in an earlier post.

Originally Posted by elektratig

The reference to “State laws . . . of very recent enactment” almost certainly alludes to laws passed by southern states restricting the right to bear arms, and the reference to "all the provisions of the Constitution” almost certainly includes the Bill of Rights, and the Second Amendment in particular. Congress had recently received a report complaining about the passage of laws in southern States depriving returning freedmen, recently discharged from the Union Army, of the right to carry arms (the penalties included flogging). In response, just days before Senator Poland’s speech, the House had passed the second Freedmen’s Bill, which contained a provision protecting “the constitutional right to bear arms.” (Ironically, the jurisdictional basis for the provision was the Thirteenth Amendment – reflecting the fact that many Republicans believed that that amendment had already imposed the Bill of Rights on the States.)

In short, Senator Poland may have had a mistaken understanding of the original meaning of the Privileges and Immunities Clause in Article IV. However, any reasonable person listening to Senator Poland’s comments in 1866 would have had every reason to believe that his views concerning Section 1 were entirely in accord with those previously expressed by Senator Howard and that Senator Poland believed that Section 1 would forbid States from depriving their citizens of their basic rights, including those embodied in the Bill of Rights.

I see what you are saying. Let me use an analogy. It may not be effective, but let me try nevertheless. If you and I are in Miami, and we decide that, with summer coming, we want to go to a cooler climate, and we start heading north. When we get to Savannah, I say that I am willing to go as far north as New York City. You want to continue on to Boston. I am unwilling to go that far. New York is fine with me. If you say that we agreed to go North, and that, therefore, we agreed to go to Boston, I would beg to differ. I only agreed to go to New York. Now, if I then talked about how nice Connecticut is, and that I would like to see Hartford, then you would have a case. But if I am silent on things north of New York, it is difficult, in the absence of other evidence, to say that I agreed to go to Boston.
Now, how that applied to this debate in Congress. Howard made his speech, but the amendment did not yet pass the Senate. Poland comes out from the Republican caucus, and references the privileges and immunities of the Civil Rights Act. The recent enactments that he was talking about could very well have been the recently passed Black Codes, which denied the privileges and immunities of the Civil Rights Act. As you correctly point out, “Congress has already shown its desire and intention to uproot and destroy all such partial State legislation in the passage of what is called the civil rights bill.... It certainly seems desirable that no doubt should be left existing as to the power of Congress to enforce principles lying at the foundation of all republican government if they be denied or violated by the States.” I read that and see he wants to overturn State laws that counteract the Civil Rights Act, not incorporate the Bill of Rights and apply them to the States. The Amendment wasn’t passed until after Poland set this lower standard (went to New York, in my analogy). I think that, if Congress (which included a number of Democrats that did not concur in the amendment) wanted to adopt the amendment based on the assumption that it incorporated the Bill of Rights, it would have done so after Howard’s speech. But it took Poland assuring the Senate that it would only empower the Federal Government to overturn State laws that violated the Civil Rights Act. Once that lower bar was set out, moderates agreed to adopt the amendment.

One point on interpreting the law (or the Constitution). The reason why I believe that the court should be conservative in interpreting the law is that to more conservative the interpretation, the more likely to be in line with the framers of a law or the Constitution. If the court rules that we can go to New York, the court is sure to be within the intentions of both the more conservative “New Yorkers” and the more progressive “Bostonians.” If the court rules that Boston was the intent, then it runs the risk of going too far, being only within the intent of the more progressive camp, and ruling contrary to the reservations of the more conservative framers. It took both camps to get the amendment adopted.


I hope you don’t think I’m being dense or stubborn. I am enjoying looking into this issue and appreciate your insights.
Respectfully,
JT

[JohnTaylor]

Originally Posted by unionblue

John Taylor & elektratig,

I have been following your debate with much interest and am enjoying it very much.

I found a site that may or may not contribute to your ongoing discussion.

The Antebellum Political Background of the 14th Amendment:
http://www.law.duke.edu/journals/lcp...er2004p175.htm

I would appreciate your comments on the site and if it in any way helps with either of your positions.

Sincerely,
Unionblue

Neil,
Interesting article. Epps states: "My thesis is this: If in 1856 an anti-slavery politician had been asked to propose a constitutional amendment to eliminate the dangerous influence of the Slave Power, that politician would likely have produced something very much like the Fourteenth Amendment. Thus, I argue that we should pay close attention to the antebellum political arguments forged by the men who later framed the Fourteenth Amendment. This Article attempts to relate the final Amendment to antebellum politics." It is more than a little odd to state that Republican ideology in 1856 is all that is needed understand what was intended by the XIV Amendment. Why wasn't it enacted in 1856, then? I would suggest that there was the small problem that most people weren't radical Republicans in 1856, or in 1866 for that matter.

Now, if you have a modern-day political agenda in writing such a thesis, than it makes sense to avoid the messy sausage-making that is domestic politics, and the resulting laws and amendments. You can go from an ante-bellum radical Republican who states what you like, and voila! You have a new meaning imported to the amendment. Where might Professor Epps be coming from? Look at the folks he credits: inter alia, Richard Aynes, Michael Kent Curtis and James M. McPherson. Aynes is a "incorporation" law school professor (who attempts to criticize Fairman obliquely because Fairman misinterpreted Bingham), Michael Kent Curtis (author of the work elektratig is working off; also of the incorporation school) and James McPherson, sometime guest interviewee on the radical leftist Pacifica Radio Network, defender of Bill Clinton during his impeachment and friend of all early-Republican/consolidationist ideology.

I looked at some other of Epps' writings and found him to be the stereotypical leftist, consolidationist college professor. Let him speak for himself: "Four years ago at this time, we lived in a free country with a bill of rights and a functioning court system; today all that is in question." One can almost hear Professor Epps hyperventilating. He is evidently "living the dream."

Anyway, his article, while interesting, makes a massive leap from ante-bellum radical Republican ideology to the meaning of the XIV Amendment. Too big of a leap, in my view. The XIV Amendment does not mean what ante-bellum radical Republicans wanted it to mean (despite Epps' obvious preference for that interpretation). It means what members of Congress, and the members of the State Legislatures intended it to mean in 1866-8. This group included radical Republicans, and a lot of other folks as well.

Bottom line, I am disappointed to see this article at the Duke Law School web page.

[elektratig]

JT,

Unfortunately, this is only a partial response. I've only got a few minutes and it's going to be very busy this week, so excuse me in advance.

To begin at the end, I don't think you're being dense or stubborn in the slightest. Some of the greatest legal minds of the past century -- Frankfurter, Black, et al. -- couldn't agree on these issues. Why should we?

As for the newspaper reports, I've inferred from some of the things I've read that a number of papers reprinted Howard's speech, but I haven't been able to confirm it. I'll see if I can.

As to your analogy, I get what you're saying. I suppose one issue is, on which side do you put the burden? The reporting Senator came out and said quite clearly that Section 1 of the Amendment applied the first eight Amendments to the States. Other Senators focused more on other sections of the Amendment. To the extent they discussed Section 1, some made casual references that indicated that they assumed that various portions of the Bill of Rights (e.g., the First or Second or Eighth Amendments) would be applied to the States. NO ONE said, "Hold on a minute. I support the Amendment to the extent it simply authorizes the Civil Rights Act, but I disagree with Senator Howard's views that it incorporates the Bill of Rights. If that's what this means, I'm not going there."

Isn't that mighty odd? Isn't the best explanation for that the hypothesis that the Republicans in Congress shared the understanding -- even though historically incorrect -- that "privileges or immunities" included the civil rights common to all citizens as reflected in the Bill?

Again, my apologies for this brief, half-baked response.

[elektratig]

Let me try to approach this from a different angle. Part of my argument has been that, by the mid-Nineteenth Century, the term “privileges and immunities” had come to be generally recognized as including those rights to which citizens were generally entitled, including those rights set forth in the Bill of Rights.

In support of this contention, I’d like to present as Exhibit A none other than Roger Taney, the Chief Justice of the Supreme Court who authored the court’s opinion in the Dred Scott case. Ironically, it turns out that Chief Justice Taney was convinced that blacks were not, and could never be, “citizens” precisely because it was inconceivable to him that they could ever be entitled to the “privileges and immunities” of citizens – including those “privileges and immunities” represented by the Bill of Rights:

“It cannot be supposed that they [the original thirteen states] intended to secure to them [blacks] rights and privileges and rank, in the new political body throughout the Union which every one of them denied within the limits of its own dominion. More especially, it cannot be believed that the large slaveholding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.”

Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 416-17 (1857) (emphasis added).

In other words, Chief Justice Taney believed and assumed that “citizens” were “entitled to the privileges and immunities of citizens”; and that “the privileges and immunities of citizens” included, among other things, the right to speak “in public and in private” (the First Amendment), “to hold public meetings upon political affairs" (also the First Amendment), “and to keep and carry arms” (the Second Amendment).

Republicans in 1866 agreed with Justice Taney that “citizens” were entitled to “the privileges and immunities of citizenship”, which included those privileges, immunities and rights set forth under the Bill of Rights. This was, at the time, a commonplace conception, shared by Democrats and Republicans alike. Consistent with it, Republicans drew up the Fourteenth Amendment using language that was precisely designed to insure that black men (and others) would be national “citizens”, and that States would be obligated not to abridge those “privileges and immunities” that everyone then understood to be inherent in national citizenship:

“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any which shall abridge the privileges or immunities of citizens of the United States . . ..”

[elektratig]

A brief note to record that I've confirmed that at least several newspapers published the portion of Senator Howard's speech quoted above. In [u]The Bill of Rights[/b], Professor Amar reports (p. 197, footnotes omitted):

"Howard, too, purported to speak on behalf of the committee, addressing a packed gallery in a speech whose passage on the Bill of Rights was reprinted in full on the front page of both the New York Times and the Herald. (The latter ranked as the nation's best-selling newspaper at the time.)"

[JohnTaylor]

Originally Posted by elektratig

Let me try to approach this from a different angle. Part of my argument has been that, by the mid-Nineteenth Century, the term “privileges and immunities” had come to be generally recognized as including those rights to which citizens were generally entitled, including those rights set forth in the Bill of Rights.

In support of this contention, I’d like to present as Exhibit A none other than Roger Taney, the Chief Justice of the Supreme Court who authored the court’s opinion in the Dred Scott case. Ironically, it turns out that Chief Justice Taney was convinced that blacks were not, and could never be, “citizens” precisely because it was inconceivable to him that they could ever be entitled to the “privileges and immunities” of citizens – including those “privileges and immunities” represented by the Bill of Rights:

“It cannot be supposed that they [the original thirteen states] intended to secure to them [blacks] rights and privileges and rank, in the new political body throughout the Union which every one of them denied within the limits of its own dominion. More especially, it cannot be believed that the large slaveholding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.”

Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 416-17 (1857) (emphasis added).

In other words, Chief Justice Taney believed and assumed that “citizens” were “entitled to the privileges and immunities of citizens”; and that “the privileges and immunities of citizens” included, among other things, the right to speak “in public and in private” (the First Amendment), “to hold public meetings upon political affairs" (also the First Amendment), “and to keep and carry arms” (the Second Amendment).

Republicans in 1866 agreed with Justice Taney that “citizens” were entitled to “the privileges and immunities of citizenship”, which included those privileges, immunities and rights set forth under the Bill of Rights. This was, at the time, a commonplace conception, shared by Democrats and Republicans alike. Consistent with it, Republicans drew up the Fourteenth Amendment using language that was precisely designed to insure that black men (and others) would be national “citizens”, and that States would be obligated not to abridge those “privileges and immunities” that everyone then understood to be inherent in national citizenship:

“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any which shall abridge the privileges or immunities of citizens of the United States . . ..”

Elektratig, thanks for such a thoughtful post. Excellent question. This has forced me to ponder what you wrote.
It would seem that some Republicans agreed with Taney on what privileges and immunities were. Unlike modern views on the subject, it would seem that privileges and immunities were divisible, by which I mean there were various levels of privileges and immunities. First, and most basic, equality before the law. Even an illegal alien is entitled to be tried in a court, if accused of a crime. Next would be the right to sue, testify, enter into contracts and have them be binding, keep, hold and enjoy property. Next would be protection from Federal laws that violated the Federal Bill of Rights. And finally would be voting. (I believe I have the taxonomy correct; look at the status of white women both before and after the XIV Amendment: They could not vote, but they retained free speech rights.)

Also, he was making the case for special laws in slave States that restricted the activities and rights of blacks. The rights of free speech in slave States were protected by the bills of rights of the respective State constitutions. Or are you arguing that Taney suggests that the Federal Bill of Rights applied to States in 1857? That would be a remarkable assertion, given Taney's views on State-Federal division of powers. In Kentucky v. Dennison, he ruled that, even though a State Governor has a moral obligation to extradite fugitives from justice, the Federal Government has no power to compel a State Governor to comply with that obligation.

I also believe that Taney was taking an expansive view of what privileges and immunities blacks might enjoy if declared citizens, in order to make the case for denying them the title of citizen. He was taking the most extreme case to legitimize his decision in Dred Scott. (“See, you can’t declare these black people citizens, they will get all kinds of rights, and think of the chaos that would follow.”)

In the text of the of the amendment itself, it would appear that, even after the amendment was ratified, States would retain the power to deny blacks the right to vote, although the State's representation in Congress would be lowered as a result. Clearly, though, the States retained the power to deny some males over 21 the franchise. (Please note, I am not arguing the wisdom or justice of denying people the franchise; only that the XIV Amendment left that power with the States). It would appear even in 1866, that privileges and immunities were divisible. The question is, which side of the line did the Bill of Rights protections lie? Clearly privileges and immunities that were related to the right to sue, enter into contracts, testify in court, hold and enjoy property were protected by the XIV Amendment. Clearly, voting rights were not protected by the XIV Amendment. (It would take the XV Amendment to guarantee those rights). Bingham and Howard clearly felt that incorporation of the Federal Bill of Rights was within the privileges and immunities guaranteed by the XIV Amendment. What did other Representatives and Senators say?

[JohnTaylor]

Originally Posted by elektratig

A brief note to record that I've confirmed that at least several newspapers published the portion of Senator Howard's speech quoted above. In [u]The Bill of Rights[/b], Professor Amar reports (p. 197, footnotes omitted):

"Howard, too, purported to speak on behalf of the committee, addressing a packed gallery in a speech whose passage on the Bill of Rights was reprinted in full on the front page of both the New York Times and the Herald. (The latter ranked as the nation's best-selling newspaper at the time.)"

Interesting. Did Professor Amar give the specific reference to which page and column of the NY Times the article appeared in? The local library subscribes to an on-line service which gives me access to the images of NYT articles as .pdf files. If you could give me the specifics, I will go to the NYT and read it in the original.
Thanks.
Respectfully,
JT