Civil War History - Secession and PoliticsWas it Slavery, or was it States Rights? Perhaps it was the election of Lincoln? What were the real reasons for Southern Secession and what were the political issues in this time of war? Find your answers here in the Secession and Politics Disussion.
This is off-topic for the thread on Northern motives for war, so I thought I'd start a new one.
I did a little digging on incorporation doctrine. Apparently there is quite a cottage industry amongst legal scholars in divining what the XIV Amendment actually means. Apparently, the debate has sometimes been quite nasty. (e.g. see Fairman, Crosskey, Raoul Berger, and Michael Kent Curtis)
A debate opened up in 1949 with an article by Charles Fairman on the incorporation doctrine. (Charles Fairman, " Does the Fourteenth Amendment Incorporate the Bill of Rights?, " 2 Stanford Law Review, (1949). Fairman’s article is 134 pages (in a law review magazine!). Professor Crosskey responded, and they were off. This debate picked up steam when the Brown vs. Board of Education in 1954, when the Federal judiciary used incorporation to overturn Jim Crow laws. An honorable end, no doubt, even if the means are a little loose. I don’t have Fairman’s complete article (I'm trying to get it from the local library), but I found an article that summarizes Fairman’s lengthy argument. Please do not take this to mean that I oppose school desegregation; I support school desegregation. I just believe that the doctrine of incorporation is at least questionable, especially if the doctrine is used for less honorable goals, which I believe it has been). Relevant excerpts from the article summarizing Fairman are provided below (with a link to the full summary):
"On May 23, 1866, Senator Howard rose in the Senate, referred to the illness of Fessenden, and stated that he would "present 'the views and the motives which influenced the committee, so far as I understand [them].' After reading the privileges and immunities listed in Corfield v. Coryell, [6 Fed.Cas. 546, No. 3230 (C.C.E.D.Pa.1823),] he said, 'to these privileges and immunities ... should be added the personal rights guaranteed and secured by the first eight amendments.' That is the sum and substance of Howard's contribution to the 'incorporation' issue." [Note: R. Berger, supra note 26, at 147‑48 (quoting Congressional Globe 2764‑65).]
Raoul Berger notes in his analysis of the incorporation question that the remark of Senator Howard was tucked away in the middle of a long speech, that Howard was a last minute substitution for the majority chairman, that Howard was in the minority on the committee, and that after Howard was through speaking Senator Poland stated that the fourteenth amendment secured nothing beyond what was intended inthe original privileges and immunities clause of Article IV Section 2. [R. Berger, supra note 26, 148‑49.] Senator Doolittle followed Senator Poland with some additional remarks which were designed to reassure those whose votes had already been won in favor of passage of the fourteenth amendment that indeed the amendment was limited to known objectives, which objectives were not intended to encompass the federal Bill of Rights.
The scholarly analyses of Professors Fairman and Berger persuasively show that Mr. Justice Black misread the congressional debate surrounding the passage of the fourteenth amendment when he concluded that Congress intended to incorporate the federal Bill of Rights against the states. See infra p. 42‑ 44 (discussion of Blaine Amendment). So far as Congress was concerned, after the passage of the fourteenth amendment the states were free to establish one Christian religion over another in the exercise of their prerogative to control the establishment of religions."
__________________ "In this Constitution, the citizens of the United States appear dispensing a part of their original power in what manner and what proportion they think fit. They never part with the whole; and they retain the right of recalling what they part with." James Wilson of Pennsylvania, October 28th, 1787
JT:
Lawyers must surely be like economists. I know they're saying something important, but I'll be danged if I can figure out what.
Nevertheless, I will attempt to follow this thread and work mightily to understand what I'm following. Thanks for the opening of an interesting thread.
Ole
__________________ I never knew a man who wished to be himself a slave. Consider if you know any good thing that no man desires for himself. A. Lincoln
I've just finished a 12+ hour day and I don't have my books with me, so I can't give you any juicy counter-quotes at the moment, but I'll try to outline briefly the views of Michael Kent Curtis (and many others).
By way of background, the Supreme Court had held, correctly, in the case of Barron v. Baltimore in 1833 that the Bill of Rights (or more properly, the first eight Amendments) did not apply to the States. By the end of the War, however, Republican ideology firmly held to the contrary. That ideology held, consistent with their interpretation of the Declaration of Independence, that all non-alien men were citizens of the United States and were entitled to basic civil rights -- the rights embodied in the Bill of Rights. The way that Republicans expressed this, over and over, circa 1865-66, was to state that all such persons were entitled to "the privileges or immunities of citizens of the United States".
Ironically, Republicans were so convinced of this that many forgot about the Supreme Court's ruling in Barron. Rep. John Bingham (R – Ohio) is typically portrayed as a dolt by those who maintain that the Amendment has no meaning. In fact, he was a highly-regarded lawyer, and one of the few Republican legislators who realized that the Republican views of the Constitution ignored Barron, and that to achieve the Republican vision required amendment of the Constitution. To this end, after convincing his colleagues that an amendment was required (many were incredulous), he spearheaded the joint House-Senate Committee in drafting Section 1 of the Amendment. After realizing that the Amendment also needed to deal with and overrule the Dred Scott case (in which the Court had held, among other things, that blacks, even free blacks, were not and could never be “citizens”), the Joint Committee under Bingham produced the key language 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 . . ..”
The first sentence defined national citizenship and thus overruled the citizenship holding of Dred Scott. The first clause of the second sentence provided that no State would abridge the “privileges or immunities” that Republicans maintained were inherent in national citizenship – that is, those rights recognized in the Bill of Rights (and perhaps others). It’s worth noting that the opening phrase of the second sentence intentionally echoes – and is in fact broader than – the opening phrase of the First Amendment: “No State shall make or enforce any law . . .” vs. “Congress shall make no law . . ..”
All of this makes even more sense when you consider that Republicans in 1865-66 were politicians who had particular grievances against the South and particular political goals in mind. Among other things, they were convinced that southern states had suppressed free speech before the War; that the suppression of free speech had contributed to the War; and that the southern states would suppress free speech again unless they were prevented from doing so, severely hindering the ability of Republicans to make political inroads in the South. They were determined not to let this happen. They were also convinced that Republicans could not gain political rights in the South unless both blacks and sympathetic whites had the ability to defend themselves with weapons against what they regarded as terrorist vigilantes. For this reason, Republicans referred repeatedly to freedom of speech and the right to bear arms as prime examples of the rights that southern states had violated before but would not be permitted to violate in the future.
Finally, a few words on the phrase “privileges or immunities.” It sounds opaque and antiquated to us. Why did Republicans use it as a shorthand for “the Bill of Rights”? As a historical matter, i.e., to the Framers, the phrase probably had a much more limited meaning. This is irrelevant. Remember, in interpreting the Fourteenth Amendment the question is, What was the understanding of the phrase in 1866-68, not What was the understanding of the phrase in 1787-89.
In fact, during the first half of the Nineteenth Century, historical ignorance and a strong natural law tradition transformed the meaning of the phrase into something far broader. Corfield v. Coryell (1823), which JT mentions, was one of the most famous cases during the first three-quarters of the Nineteenth Century, and it exemplifies this transformation. Judge Bushrod Washington there characterized “privileges and immunities” as
“those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental: to which may be added, the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised. These, and many others which might be mentioned, are, strictly speaking, privileges and immunities . . ..”
Republicans circa 1866 quoted the most idealistic portions of this definition over and over again and made clear that they understood “privileges and immunities” to be equivalent to the fundamental rights enshrined in the first eight Amendments. To use a modern analogy, all of us understand immediately what is meant by the phrase “freedom of choice”; so too did everyone understand in 1866-68 what Republicans meant by the phrase “privileges or immunities.”
elektratig, Thanks for the response. I look forward to reading what you have to say on the matter. Before we dive into "juicy quotes," might we establish the yardsticks by which we will measure the issue. I think this methodology will result in a more focused and fruitful debate on the issue. To that end, I would suggest that the proper yardsticks on the meaning of the XIV Amendment (and any constitutional amendment, and indeed, the Constitution itself) would be (in rough order of precedence): 1. What the proponents of the amendment said it meant. First, the chairman of the Committee that reported the amendment, second the other members of that committee, third its proponents in the whole House(s). 2. What the various State Legislatures said in debating the proposed amendment. 3. What proponents of the amendment said on the hustings after its passage in Congress. (not the same as what was said in Congress when the bill was debated, but useful nevertheless). 4. Subsequent case law and court rulings. 5. What State Constitutions adopted after the ratification of the XIV Amendment to the US Constitution said and how they reflected the new understanding of the Constitution as amended. 6. What opponents of the amendment said about the amendment, and gave as their reason for not consenting to the amendment (both in Congress and in State Legislatures). 7. What was notsaid in the various debates in Congress and the respective State Legislatures as they debated the amendment, and what that silence means. 8. How the matter was reported in newspapers, since this matter was the subject of some interest, and public opinion influenced how State legislatures voted.
If you agree both with the proposed evaluation criteria and their order or importance, then we can begin what I hope will be a good debate on the topic. I look forward to hearing what you have to say. Respectfully, JT
__________________ "In this Constitution, the citizens of the United States appear dispensing a part of their original power in what manner and what proportion they think fit. They never part with the whole; and they retain the right of recalling what they part with." James Wilson of Pennsylvania, October 28th, 1787
For discussions sake, that would work, but the court rulings are considered the current state of the law, regardless of what may have been (or not been) said in debating the amendment. Often the court rulings will reference the debate and discussions in their decisions.
Attorney-at-law;
__________________ Mark W. Swarthout, Esq.
GGGrandson of Pvt. John W. Swarthout, Company E, 148th NYVI - Wounded at Cold Harbor.
GGGGrandson of Pvt. Henry Stephens, Company D, 137th NYVI - Wounded at Culp's Hill, Gettysburg.
For discussions sake, that would work, but the court rulings are considered the current state of the law, regardless of what may have been (or not been) said in debating the amendment. Often the court rulings will reference the debate and discussions in their decisions.
Attorney-at-law;
That is my point, after a fashion.
The Judiciary is duty bound to refer to the proceedings of the debates when amendments were ratified, where the meaning is in question. No other source of the meaning of an amendment is as reliable as that record.
Over time, when courts decide an issue contrary to that record, contrary to the expressed intentions of the people when enacting an amendment, the copurts are in error, in my opinion.
__________________ "In this Constitution, the citizens of the United States appear dispensing a part of their original power in what manner and what proportion they think fit. They never part with the whole; and they retain the right of recalling what they part with." James Wilson of Pennsylvania, October 28th, 1787
That's how we make our money! Arguing that the court made the wrong decision.
Unfortunately (or fortunately for those who want to make a living at it) the law is not black and white, there is always room for interpretation.
I'll watch the thread with interest, though am not sure how much I want to get into it here. When one argues these things for a living, it isn't what you want to do when you aren't working!
__________________ Mark W. Swarthout, Esq.
GGGrandson of Pvt. John W. Swarthout, Company E, 148th NYVI - Wounded at Cold Harbor.
GGGGrandson of Pvt. Henry Stephens, Company D, 137th NYVI - Wounded at Culp's Hill, Gettysburg.
Your initial post focused on Raoul Berger’s attempt to minimize the crucial speech of Senator Jacob Howard (Republican, Michigan). I’ll therefore focus on that speech as well and explain why Berger’s characterizations are simply untrue.
Senator Howard was a member of the Joint Committee on Reconstruction, which created the Amendment, and he presented the Amendment to the Senate on behalf of the Joint Committee. In his speech to the Senate, after quoting from Section 1, Howard explained:
“It will be observed that this is a general prohibition upon all the States, as such, from abridging the privileges and immunities of the citizens of the United States. That is the first clause, and I regard it as very important. . . .
“The first clause of this section relates to the privileges and immunities of citizens of the United States as such, and as distinguished from all other persons not citizens of the United States. It is not, perhaps, very easy to define with accuracy what is meant by the expression, ‘citizen of the United States.’”
Howard then cited Corfield v. Coryell to identify some of the privileges and immunities secured by Article IV, Section 2. He continued:
“Such is the character of the privileges and immunities spoken of in the second section of the fourth article of the Constitution. To these privileges and immunities, whatever they may be – for they are not and cannot be fully defined in their entire extent and precise nature – to these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and to bear arms; the right to be exempted from the quartering of soldiers in a house without the consent of the owner; the right to be exempt from unreasonable searches and seizures, and from any search and seizure except by virtue of a warrant issued upon a formal oath or affidavit; the right of an accused person to be informed of the nature of the accusation against him; and his right to be tried by an impartial jury of the vicinage; and also the right to be secure against excessive bail and against cruel and unusual punishments.
“Now, sir, here is a mass of privileges, immunities, and rights, some of them secured by the second section of the fourth article of the Constitution, which I have recited, some by the first eight amendments of the Constitution; and it is a fact well worthy of attention that the course of decision of our courts and the present settled doctrine is, that all these immunities, privileges, rights, thus guarantied by the Constitution or recognized by it, are secured to the citizen solely as a citizen of the United States and as a party in their courts. They do not operate in the slightest degree as a restraint or prohibition upon State legislation. States are not affected by them, and it has been repeatedly held that the restriction contained in the Constitution against the taking of private property for public use without just compensation is not a restriction upon State legislation, but applies only to the legislation of Congress.
“Now, sir, there is no power given in the Constitution to enforce and to carry out any of these guaranties. They are not powers granted by the Constitution to Congress, and of course do not come within the sweeping clause [another name for the Necessary and Proper Clause] of the Constitution authorizing Congress to pass all laws necessary and proper for carrying out the foregoing or granted powers, but they stand simply as a bill of rights in the Constitution, without power on the part of Congress to give them full effect; while at the same time the States are not restrained from violating the principles embraced in them except by their own local constitutions, which may be altered from year to year. The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guaranties.”
As the lengthy quotes demonstrate, Senator Howard’s description of Section 1 was not “tucked away” anywhere. As Michael Kent Curtis explains:
“Mr. [Raoul] Berger took other steps to minimize Howard’s speech. He said that the sum and substance of Howard’s contribution to the incorporation debate was simply noting, after the privileges and immunities listed in Corfield v. Coryell, that ‘to these privileges and immunities . . . should be added the personal rights guarantied and secured by the first eight amendments.’ According to Berger, this ‘remark’ by Howard was ‘casually tucked away in a long speech.’
“The characterization is grossly inaccurate. In his speech Howard listed rights included in the Bill of Rights, pointed out that the courts had held that they did not operate as a restraint or prohibition on state legislation, summarized the holding in Barron v. Baltimore, and said that ‘the great object of the first section of this amendment is, therefore, to restrain the power of the States and to compel them at all times to respect these great fundamental guaranties.’ Howard’s statement on the Bill of Rights comprises about one-half of his entire discussion of the privileges or immunities clause of the Fourteenth Amendment and about one-ninth of his ‘long’ speech. In short, treatment of it as a ‘remark casually tucked away in a long speech’ is a serious misstatement.”
Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights at pp. 126-27 (footnotes omitted).
The Amateurs study the battles; the generals study the logistics.
Between 1860 and 1867, Supreme Court justices who died or resigned were Taney -MD 1864; Campbell GA 1861 (then Confederate Assistant Secretary of War); McLean Ohio 1861; Catron Tenn 1865; Wayne GA 1867; Daniel VA 1860.
Between 1865 and 1900 there were only two justices appointed to the U.S. Supreme Court from the old Confederacy states.
Elektratig, I will concede round one to Senator Howard. He apparently, in this speech, considered that the privileges and immunities clause of the XIV Amendment was intended to apply the first eight amendments of the BIll of Rights to restrict the State governments. Raoul Berger seems to have mischaracterized this as being "tucked away" in a longer speech. I think that Berger may have been merely adopting the characterization of Fairman in his 1949 article. In which case, Fairman is wrong as well. I have not read Fairman in his entirety (as I wrote earlier, Fairman in 134 pages!), but merely a summary written by Timoty Lewis.
Before we go into more juicy quotes from the period, a little stage-setting is probably in order. In February 1866, Congress passed the Freedman's Bureau Bill (which President Johnson vetoed). It declared (inter alia) that "whenever any state formerly in rebellion denied on account of color the civil rights and immunities belonging to white persons, including the rights to contract, sue, give evidence, take, hold, and convey property, and enjoy the equal benefit of laws for the security of person and estate, it should be the duty of the President to extend military protection to the persons affected by such discrimination." Here is one view of what privileges and immunities" means. In March 1866, Congress passed (and in April 1866 over-rode Johnson's veto of) the Civil Rights Act. It stipulated that "persons born in the United States and not subject to any foreign power were citizens of the United States; that such citizens, without regard to color, were entitled in every state and territory to the same right to contract, sue, give evidence, and take, hold, and convey property, and to the equal benefit of all laws for the security of person and property, as was enjoyed by white citizens; and that any person who under color of law caused any such civil right to be denied would be guilty of a federal offense." Here is another, and similar, statement of what privileges and immunities" were being considered at the time.
In Corfield v. Coryell , Judge Washington held that New Jersey could restrict non-New jersey citizens from harvesting oysters in its territorial waters. Privileges and Immunities did not require that a State treat citizens of another State exactly as it did citizens of its own State.
In Campbell v. Morris, "the court ruled that Mr. Morris was being treated no differently than a Maryland debtor would have been treated and hence, there was no violation of the privileges and immunities clause. In that case, Justice Samuel Chase indicated that counsel for both sides agreed that this clause was to be given only "particular and limited operation" as opposed to a "full and comprehensive one." He continued: "It is agreed it does not mean the right of election, the right of holding offices, the right of being elected. The Court are of opinion it means that the citizens of all the States shall have the peculiar advantage of acquiring and holding real as well as personal property, and that such property shall be protected and secured by the laws of the State, in the same manner as the property of the citizens of the State is protected. It means, such property shall not be liable to any taxes, or burdens which the property of the citizens is not subject to. It may also mean, that as creditors, they shall be on the same footing with the State creditor, in the payment of the debts of a deceased debtor. It secures and protects personal rights. "The way to expound a clause in the general government or Constitution of the United States, is by comparing it with other parts, and considering them together; and to lay a foundation for a right exposition in the present case, it will be proper to suggest a few plain principles. "1st. That Congress can exercise no power as a legislative body but what is vested in them by the Constitution; it being under and by virtue of that instrument alone they derive their power. "2d. All power, jurisdiction, and rights of sovereignty, not granted by the people by that instrument, or relinquished, are still retained by them in their several States, and in their respective State Legislatures, according to their forms of government. "Uniformity of laws in the States is contemplated by the general government only in two cases, on the subject of bankruptcies and naturalization. "The legislative powers of Congress are particularly defined in the 8th section of the 1st Article. "Those powers do not interfere with, or abridge, the power of the States to make local regulations, the operation of which is confined to the State." (Fairman pg.13-14)
"In Abbot v. Bayley, the court ruled, "The jurisdiction of the several States as such, are distinct, and in most respects foreign. The constitution of the United States makes the people of the United States subjects of one government quoad every thing within the national power and jurisdiction, but leaves them subjects of separate and distinct governments....[When people remove to a different state] they become citizens of the adopted State without naturalization, and have a right to sue and be sued as citizens; and yet this privilege is qualified and not absolute, for they cannot enjoy the right of suffrage or of eligibility to office, without such term of residence as shall be prescribed by the constitution and laws of the State into which they shall remove. They shall have the privileges and immunities of citizens, that is, they shall not be deemed aliens, but may take and hold real estate, and may, according to the laws of such State, eventually enjoy the full rights of citizenship without the necessity of naturalization....The several states then, remain sovereign to some purposes, and foreign to each other, as before the adoption of the constitution of the United States, and especially in regard to the administration of justice, and in the regulation of property and estates, the laws of marriage and divorce, and the protection of the persons of those who live under their jurisdiction. No process can go from one State into another, nor can the citizen of one State be made amenable to the laws of another, unless he come within its jurisdiction." (Fairman, pg.14-15).
Thus, it would seem that the term privileges and immunities, prior to the adoption of the XIV Amendment (and I would like to emphasize that qualification), meant something limited, and that definition was articulated in the US Constitution, Article IV, Section 2 ("The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.") and The V Amendment's requirement that "No person shall be … deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." Taken together with the Freedman's Bureau Bill, the Civil Rights Bill of 1866, it would seem that the term privileges and immunities meant the ability to to sue, give evidence, hold, possess and enjoy property, just like every other resident in the State.
Now for the follow-up. Did Howard make the same incorporation statements (about applying the first eight amendments to the States) on other occasions? Did other members of the committee second his views on this topic? Or did they contradict what he said about the incorporation of the Bill of Rights?
Fessenden had been the chair of the committee that drafted the amendment, but, due to illness, Howard was substituted for him at the last minute. Howard did in fact read off the prohibitions on Federal actions embodied in the Bill of Rights, and acknowledged that they applied only to the Federal Government, not the States. The Senate debated the amendment for a few days, then the Republicans went into caucus, where, unfortunately, no records were kept of what was said. When they emerged, Senator Poland of Vermont spoke on it (on June 5th) and said, "The clause of the first proposed amendment, that 'no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,' secures nothing beyond what was intended by the original provision in the Constitution, that 'the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." (39th Congress, 1st Session, pg. 2961) Poland stated that the Southern States had made privileges and immunities a dead letter because the Federal government lack the power to enforce them. The XIV Amendment supplied that power. It would seem that Poland took a more restrictive view than Howard. Was Poland wrong?
I look forward to your reply.
Respectfully,
John Taylor
__________________ "In this Constitution, the citizens of the United States appear dispensing a part of their original power in what manner and what proportion they think fit. They never part with the whole; and they retain the right of recalling what they part with." James Wilson of Pennsylvania, October 28th, 1787
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