XIV Amendment and incorporation

[elektratig]

JT,

Again, my apologies in advance for not responding to your thoughtful posts with the attention they deserve. I've only got a few minutes, so for now I'll have to be impressionistic.

No, I'm certainly not contending that Justice Taney thought that the Bill of Rights applied to the States -- heaven forbid! Rather, the quote illustrates the fact that there was a common mid-19th Century understanding that citizenship implied certain fundamental rights -- "privileges and immunities". Where does one look to define them? To, among other things, the Constitution, including the Bill of Rights and the rights set forth in Article II, Section 10 (bill of attainder, ex post facto law, or law impairing the obligation of contracts). Not because the Bill applied per se, but because it was assumed that in creating the Bill the revered Founders were inspired by and recorded, as it were, those same underlying fundamental rights.

As for the voting issue, mid-19th Century distinguished between "civil rights" and "political rights." Citizenship necessarily implied the former, but not the latter. "Political rights" included principally voting and sitting on grand and petit (trial) juries. "Civil rights" included the rights to which all other citizens were entitled -- women being an excellent example. Women had the right to speak, to petition, to be tried by civil and criminal juries, not to be subject to cruel and unusual punishments, etc. The Fourteenth Amendment drew the line at political rights. Republicans were not yet willing to extend the franchise, although as I noted there was disagreement and the Amendment was willing to penalize States for not extending it to all adult males.

Certainly equality was a fundamental part of the mix. Indeed, basic equality was so important that Section 1 extended the right of equality to all persons -- non-citizens as well as citizens. Just look again at the full text of Section 1:

"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 law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

The term "person" is broader than the term "citizens of the United States", and intentionally so. All "persons", even non-citizens, were entitled to due process and equal protection. "Citizens" were entitled to far more.

I've left my Amar book at the office. I'll try to sneak in a quick post giving you the cites later this morning. My recollection is that the NYT article began on page 1.

Gotta run!

[JohnTaylor]

Elaktratig,
I am going to be incommunicado for a couple of days, so take your time.
Please don't be offended if I don't respond for a while.
I'll respond when I return.
Respectfully,
JT

[elektratig]

JT,

I'm belatedly responding with some info about newspaper reporting of Senator Howard's speech.

Prof. Amar cites secondary sources: Joseph B. James, The Framing of the Fourteenth Amendment at 133-36 (1956); Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?, 2 Stanford Law Review 5, 68-69 (1949); and William Winslow Crosskey, Charles Fairman, "Legislative History," and the Constitutional Limitations on State Authority, 22 University of Chicago Law Rev. 1, 102-03 (1954).

I therefore dug a bit further and found I'd overlooked the following in Michael Kent Curtis's No State Shall Abridge, at p. 128:

"In fact, Howard's speech was reported in detail on the front page of the New York Times of May 24, 1866, and elsewhere. [fn. 281] The Times report quoted verbatim the portion of the speech that stated that the privileges and immunities secured by the Fourteenth Amendment included the first eight amendments, Howard's listing of them, and his statement that the amendment would correct court rulings that the amendment did not bind the states. [fn. 282] Before that, the Times had reported Bingham's speech in which he said that the object of the 'prototype' of section 1 was to enforce the Bill of Rights within the states. [fn. 283]"

Footnote 281 cites the May 24, 1866 Times at p. 1, column 6, and Crosskey at 102-03.

Footnote 282 cites the same Times article.

Footnote 283 cites the Times of March 1, 1866 at p.5, column 2, and March 2, 1866 at p.2, column 5.

[JohnTaylor]

Originally Posted by elektratig

JT,

I'm belatedly responding with some info about newspaper reporting of Senator Howard's speech.

Prof. Amar cites secondary sources: Joseph B. James, The Framing of the Fourteenth Amendment at 133-36 (1956); Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?, 2 Stanford Law Review 5, 68-69 (1949); and William Winslow Crosskey, Charles Fairman, "Legislative History," and the Constitutional Limitations on State Authority, 22 University of Chicago Law Rev. 1, 102-03 (1954).

I therefore dug a bit further and found I'd overlooked the following in Michael Kent Curtis's No State Shall Abridge, at p. 128:

"In fact, Howard's speech was reported in detail on the front page of the New York Times of May 24, 1866, and elsewhere. [fn. 281] The Times report quoted verbatim the portion of the speech that stated that the privileges and immunities secured by the Fourteenth Amendment included the first eight amendments, Howard's listing of them, and his statement that the amendment would correct court rulings that the amendment did not bind the states. [fn. 282] Before that, the Times had reported Bingham's speech in which he said that the object of the 'prototype' of section 1 was to enforce the Bill of Rights within the states. [fn. 283]"

Footnote 281 cites the May 24, 1866 Times at p. 1, column 6, and Crosskey at 102-03.

Footnote 282 cites the same Times article.

Footnote 283 cites the Times of March 1, 1866 at p.5, column 2, and March 2, 1866 at p.2, column 5.

elektratig,
Good thoughtful post. I will research the NYT articles, but for the sake of argument, I will agree that both the speeches of both Bingham and Howard stated that the XIV Amendment would incorporate the bill of rights and apply them to the States and that such was reported in newspapers of the day.
What can we make of that? Let's look now at what other Senators and Representatives said in the Congressional debates on the amendment.
Respectfully,
JT

[elektratig]

JT,

Before turning to opponents, I’d like to look more closely at the House side and John Bingham in particular. John A. Bingham (R. – Ohio), a member of the Joint Committee and the principal author of the Amendment, was its principal proponent. By contemporary Republican standards, he was no radical. Several modern scholars have ranked him as moderate or mildly conservative in relation to his Republican colleagues. He gave several speeches. To keep this post manageable, I will focus here on one of them, given on February 28, 1866.

At that point, the Amendment had not reached its final form. As of February 28, 1866, it read as follows:

“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.”

In his speech of February 28, Rep. Bingham made clear that he regarded the amendment as giving Congress the power to enforce the Bill of Rights against the States. After a brief introduction, he squarely stated the issue as follows (emphasis added):

“The proposition pending before the House is simply a proposition to arm the Congress of the United States, by the consent of the people of the United States, with the power to enforce the bill of rights as it stands in the Constitution today.”

He then turned to the question why the amendment was even necessary. As I explained in an earlier post, Republicans almost universally believed that the Bill of Rights already applied to the States, and that Congress naturally had the power to enforce it. Unlike his less sophisticated colleagues, however, Bingham was aware of Barron v. Baltimore and its progeny. He pointed directly to Barron and another Supreme Court case, which had held that provisions of the Bill of Rights (the Fifth Amendment and the Seventh Amendment) were not binding on the States (emphasis added):

“A gentleman on the other side interrupted me [in debate recently] and wanted to know if I could cite a decision showing that the power of the Federal Government to enforce in the United States courts the bill of rights under the articles of amendment to the Constitution had been denied. I answered that I was prepared to introduce such decisions; and that is exactly what makes plain the necessity of adopting this amendment.

“Mr. Speaker, on this subject I refer the House and the country to a decision of the Supreme Court, to be found in 7 Peters, 247, in the case of Barron vs. The Mayor and City Council of Baltimore, involving the question whether the provisions of the fifth article of the amendments to the Constitution are binding upon the State of Maryland and to be enforced in the Federal courts. The Chief Justice says:

“’The people of the United States framed such a Government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this Government were to be exercised by itself; and the limitations of power, if expressed in general terms, are naturally, and we think necessarily, applicable to the Government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments, framed by different persons and for different purposes.

“’If these propositions be correct, the fifth amendment must be understood as restraining the power of the General Government, not as applicable to the States.’

“I read one further decision on this subject – the case of the Lessee of Livingston vs. Moore and others, 7 Peters, page 551. The court, in delivering its opinion, says:

“’As to the amendments of the Constitution of the United States, they must be put out of the case, since it is now settled that those amendments do not extend to the States; and this observation disposes of the next exception, which relies on the seventh article of those amendments.’”

Invoking the ghost of Daniel Webster, Bingham then explained that he believed the Supreme Court was wrong, but only in part. Alluding to the Supremacy Clause and the Oaths Clause (Article VI, Clause III, which requires that all State officials “shall be bound by Oath or Affirmation, to support this Constitution”), Bingham explained that, in his view, the Constitution bound the States just as it bound the Federal government. The problem, Bingham believed, was that the Constitution contained no effective enforcement mechanism that penalized State officials for violating their oaths. There was a “right”, but no “remedy,” making the Bill of Rights “a mere dead letter.” The purpose of the amendment was to supply that enforcement mechanism.

“Why, I ask, should not the ‘injunctions and prohibitions,’ addressed by the people in the Constitution to the States and the Legislatures of States, be enforced by the people through the proposed amendment. By the decisions read, the people are without remedy. It is admitted in the argument of Mr. Webster, just cited, that the State Legislatures may by direct violations of their duty and oaths avoid the requirements of the Constitution, and thereby do an act which would break up any government.”

[I would add here, as I have said before, that Bingham’s understanding of the Constitution was almost certainly wrong as a historical matter. Neither the Supremacy Clause nor the Oaths Clause bound State legislators to pass State laws that did not violate the Bill of Rights (or any other requirements of the Constitution that did not expressly apply to the States). That, however, is irrelevant. Bingham’s understanding, or misunderstanding, was a common one; indeed it represented the mainstream Republican view.]

Bingham then continued as follows, in a passage that emphasizes that the proposed amendment supplies no new rights (because the Bill of Rights already applies to the States), but rather an enforcement mechanism for those rights (emphasis added):

“Those oaths have been disregarded; those requirements of our Constitution have been broken; they are disregarded to-day in Oregon [more about Oregon in another post]; they are disregarded to-day, and have been disregarded for the past five, ten, or twenty years in every one of the eleven States recently in insurrection.

“The question is, simply, whether you will give by this amendment to the people of the United States the power, by legislative enactment, to punish officials of States for violation of the oaths enjoined upon them by their Constitution? That is the question and the whole question. The adoption of the proposed amendment will take from the States no rights that belong to the States. They elect their Legislatures; they enact their laws for the punishment of crimes against life, liberty, or property; but in the event of the adoption of this amendment, if they conspire together to enact laws refusing equal protection to life, liberty, or property, the Congress is thereby vested with power to hold them to answer before the bar of the national courts for their violation of their oaths and of the rights of their fellow-men. Why should it not be so? That is the question. Why should it not be so? Is the bill of rights to stand in our Constitution hereafter, as in the past five years within eleven States, a mere dead letter? It is absolutely essential to the safety of the people that it should be enforced.

* * *

“Is it not essential to the unity of the people that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States? Is it not essential to the unity of the Government and the unity of the people that all persons, whether citizens or strangers, within this land, shall have equal protection in every State in this Union in the rights of life, liberty and property?”

A few minutes later, Bingham was even more explicit as to what his understanding of the Constitution was. In the process, he made clear that he equated “the privileges and immunities of citizens” with “these provisions of the bill of rights.” Specifically citing the Supremacy Clause and the Oaths Clause, Bingham explained that the Framers had placed an obligation in the Constitution – the obligation of State officials to honor the Constitution. They had even placed in the Constitution an enforcement mechanism of sorts – the final portion of the Supremacy Clause, which provided that “the Judges in every State shall be bound thereby [i.e., by the Constitution], any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” What the Framers had failed to do was provide an effective enforcement mechanism, namely power in the Congress to enforce those obligations and rights. The purpose of the proposed amendment was to supply Congress with that power (emphasis added):

“With these provisions in the Constitution for the enforcement in every State of its requirements, is it surprising that the framers of the Constitution omitted to insert an express grant of power in Congress to enforce by penal enactment these great canons of the supreme law, securing to all the citizens in every State all the privileges and immunities of citizens, and to all the people all the sacred rights of person – those rights dear to freemen and formidable only to tyrants – of which the fathers of the Republic spoke, after God had given them the victory, in that memorable address in which they declared, ‘Let it be remembered that the rights for which America has contended were the rights of human nature?’ Is it surprising that essential as they held the full security to all citizens of all the privileges and immunities of citizens, and to all the people the sacred right of person, that having proclaimed them they left their lawful enforcement to each of the States, under the solemn obligation resting upon every State officer to regard, respect, and obey the constitutional injunction?

“What more could have been added to that instrument to secure the enforcement of these provisions of the bill of rights in every State, other than the additional grant of power which we ask this day? Nothing at all.”

The New York Times reported a summary of Bingham's February 28, 1866 speech and specifically noted Bingham's belief regarding the purpose of the proposed Amendment. "This was simply a proposition to arm the Congress of the United States ... with power to enforce the Bill of Rights as it stood in the Constitution." N.Y. Times, Mar. 1, 1866, at 5.

Later in 1866, while the Fourteenth Amendment was awaiting ratification by the States, Bingham had his speech published as a separate pamphlet. In the title, the pamphlet specifically described the proposed amendment as one “to Enforce the Bill of Rights.” (The full title is, John A. Bingham, One Country, One Constitution, and one People, Speech of Hon. John A. Bingham, of Ohio, in the House of Representatives, Feb. 28, 1866, in Support of the Proposed Amendment to Enforce the Bill of Rights (Washington, Printed at the Congressional globe [sic] office, 1866)).

[JohnTaylor]

Originally Posted by elektratig

... He then turned to the question why the amendment was even necessary. As I explained in an earlier post, Republicans almost universally believed that the Bill of Rights already applied to the States, and that Congress naturally had the power to enforce it.

elektratig, I am not sure that Republicans almost universally believed that the Bill of Rights already applied to the States. Earlier in a previous post, you stated that “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.”
I think that there was near unanimity that ex-slaves deserved greater protections for their rights (because of the Black Codes in ex-Confederate States), but I believe there was considerable disagreement on just how far Republicans were willing to go. Were those rights merely the right to life liberty and property? The right to be equal before the law? The right to testify in a court of law? To engage in contracts? The right to vote? I believe there were many shades of grey in this realm. Clearly Howard and Bingham believed that blacks deserved maximum protections.

Originally Posted by elektratig

... “Mr. Speaker, on this subject I refer the House and the country to a decision of the Supreme Court, to be found in 7 Peters, 247, in the case of Barron vs. The Mayor and City Council of Baltimore, involving the question whether the provisions of the fifth article of the amendments to the Constitution are binding upon the State of Maryland and to be enforced in the Federal courts. The Chief Justice says:

Originally Posted by elektratig

“’The people of the United States framed such a Government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this Government were to be exercised by itself; and the limitations of power, if expressed in general terms, are naturally, and we think necessarily, applicable to the Government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments, framed by different persons and for different purposes.

“’If these propositions be correct, the fifth amendment must be understood as restraining the power of the General Government, not as applicable to the States.’

I would suggest that the proper place for Mr. Barron to bring his suit was in a Maryland State Court, under Maryland law, and the Maryland Constitution. Apparently the Federal bench agreed with that assessment. At least, the Federal bench decided that a Federal court was not the place to bring this suit.

Originally Posted by elektratig

... Invoking the ghost of Daniel Webster, Bingham then explained that he believed the Supreme Court was wrong, but only in part. Alluding to the Supremacy Clause and the Oaths Clause (Article VI, Clause III, which requires that all State officials “shall be bound by Oath or Affirmation, to support this Constitution”), Bingham explained that, in his view, the Constitution bound the States just as it bound the Federal government. The problem, Bingham believed, was that the Constitution contained no effective enforcement mechanism that penalized State officials for violating their oaths. There was a “right”, but no “remedy,” making the Bill of Rights “a mere dead letter.” The purpose of the amendment was to supply that enforcement mechanism.

Originally Posted by elektratig

Bingham is engaging in a bit of a straw man here. The Bill of Rights restricted the Federal Government. But the several State Bills of Rights restricted the various State Governments. Not every problem is a Federal problem with a Federal solution.

Originally Posted by elektratig

... “It is admitted in the argument of Mr. Webster, just cited, that the State Legislatures may by direct violations of their duty and oaths avoid the requirements of the Constitution, and thereby do an act which would break up any government.”

This is probably the source of Bingham’s confusion. A State law in, say, 1800, establishing a State religion (or, for sake of argument, restricting free speech) was not an act of violating an “oath to avoid the requirements of the [US] Constitution.” It may have been a violation of the State Constitution, but one would have to refer to the respective State Constitution to decide that question.
It would seem that Bingham was one of those who believed that the US Constitution established a consolidated Union. One has merely to refer to the records of the Philadelphia Convention and the respective State Conventions to lay this mistaken idea to rest. Madison himself denied such was the understanding of the nature of the Union when the Constitution was being debated. Perhaps Bingham wished that the Constitution had established a consolidated Union, hence why he presented his views of the proposed amendment. But this question was on of the issues at the heart of the political debate that led to secession in the first place.
Of course, we live in a Federal system, and the powers of the Federal government go no further than the explicit terms of the grant of power (the US Constitution). All those powers not granted to the Federal Government (and not denied to the States) remain with the States or the people.

You have demonstrated admirably that both Howard and Bingham believed that the proposed amendment would apply the restrictions of the bill of Rights. These are certainly two key players in proposing the amendment.
In closing, I would suggest that we focus on other proponents of the amendment, as well as opponents of the amendment.

[ole]

Gentlemen:
I'm enjoying this discussion immensely. On occasion, I can even figure out what you're talking about. But that is aside from the fact that I can tell there is some truly good information going on in here and, with the help of providence and a great deal of study, one day I will figure it out. Meanwhile, keep it up. I'm convinced it is valuable. Thank you.
Ole

[samgrant]

Looks like you folks are way over my head, but it seems to be that the phrases in that amendment referring to "insurrection or rebellion" and "any claim for the loss or emancipation of any slave" may be of the heart of this discussion. ???

Enlighten me! (in layman's terms?)

[elektratig]

JT,

I'm trying to take this one step at a time, so pardon me for not yet discussing the opposition. I'm going to try to get to an in-depth discussion of one of Rep. Bingham's principal opponents next, but probably not until over the weekend.

Ole,

I know, from your many insightful contributions to other threads, that you're just being unduly modest, and that you understand the discussion perfectly well. But if there's anything that we can do to set forth the issues and our positions more clearly, I'm sure that both JT and I will do everything we can to explain ourselves better. This shouldn't be just a two-way conversation, and I'm sure JT joins me in hoping that you and others feel welcome to add your arguments, thoughts, observations and questions. The point is to get people to join in, not scare them off.

[ole]

elektratig:
Not scared off, overawed. Please continue as you were, if I can't follow ,,, shame on me. If I had a smidgeon to contribute you might be certain I would. Meanwhile, I'll watch and learn -- that is also a point.

Ole