Tom Burrell Liberty and Common Consent

Magna Carta and Due Process of Law

Magna Carta and Due Process of Law: The Road to American Judicial Activism

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Privileges and Immunities and the Journey from the Articles of Confederation to the United States Constitution: Courts on National Citizenship, Substance, and Antidiscrimination, 35 Whittier L. Rev. ---- (2014), available at http://ssrn.com/abstract=2374985

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  • The Limited Fourteenth Amendment

    The Fourteenth Amendment was ratified in 1868.[1]  This essay discusses sections one and five of the amendment.  Section One contains several key clauses that have had an immeasurable influence on constitutional law and the everyday lives of Americans.  Section Five provides a means for enforcing Section One.  The text of the final draft of those sections provides:

    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.

    Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

    The Thirteenth Amendment ended slavery, but former slaves lacked civil status.  To grant citizenship rights to recently freed slaves, the 39th Reconstruction Congress adopted the Civil Rights Act of 1866 (CRA).  The CRA of 1866 was originally proposed as legislation under the congressional enforcement section of the Thirteenth Amendment.  Section One of the CRA established:

    [t]hat all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary not withstanding.[2]

    In the CRA of 1866, Congress enumerated several key citizenship rights including: making and enforcing contracts, rights to sue and be sued, rights to give evidence, and rights to inherit and purchase property.  These provisions reversed the slave codes, which did not allow slaves to, among other things, enter contracts or own property.  In addition to the enumerated citizenship rights, the CRA of 1866 protected equal burdens and equal benefits of the law.   Under the CRA, a black person could not be punished in a manner different from a white person for the same crime committed under the same circumstances.  Newly freed slaves needed this protection because these inequalities were occurring in the former slave states.

    Many felt that the CRA was beyond the authority of the Thirteenth Amendment.  President Johnson vetoed the legislation.  The 39th Congress, however, was determined to pass civil rights legislation and overrode the veto.  Congress also sought to amend the Constitution to secure the CRA of 1866 and to give Congress authority to pass additional civil rights laws.  Section One and Section Five provided this authority.  Thus, in context, the Thirteenth Amendment abolished slavery and the Fourteenth Amendment provided a constitutional status for the CRA’s citizenship rights.

    We understand the contours and limitations of Section One through the congressional debates and the surrounding context of the Reconstruction era.  We further learn of Section One’s limitations through the revisions to the various drafts.[3]  These revisions limited its scope to prevent “all things” interpretations.   While the 39th Congress was interested in protecting civil rights, it was also determined to preserve states’ rights and basic principles of federalism.

    In an early draft of Section One, John Bingham, a liberal Republican congressman from Ohio and the principal author of the language ultimately becoming Section One, proposed a broad array of additions to Congress’s powers.  Bingham and a handful of the 39th Congress advocated, to a greater or lesser degree, that the protections of the Bill of Rights should be secured against state infringement.  The amendment’s early draft of Section One read:

    The Congress shall have power to make all laws necessary and proper to secure to all persons in every state within this Union equal protection in their rights of life, liberty, and property.[4]

          This language was extremely open-ended with almost no limitation.  The 39th Congress would have never agreed to such a provision eliminating all federalism safeguards.  Rejecting this initial draft, the congressional Reconstruction Committee reviewed several alternative drafts.

    A subcommittee’s next draft retained the “necessary and proper” language and proposed:

    Congress shall have the power to make all laws which shall be necessary and proper to secure all persons in every state full protection in the enjoyment of life, liberty, and property; and to all citizens of the United States in any State the same immunities and also equal political rights and privileges.[5]

    This proposal also failed in the committee.  A substitute provided:

    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 (Art. 4, Sec. 2); and to all persons in the several States equal protection in the rights of life, liberty and property (5th Amendment).[6]

    The committee again retained the “necessary and proper” language but changed the language from establishing for “citizens of the United States in any State the same immunities and also equal political rights and privileges” to “secure to the citizens of each State all privileges and immunities of citizens in the several States” and changed “full protection in the enjoyment of life, liberty and property” to “equal protection in the rights of life, liberty and property.”  The committee’s revision rejected the language securing “equal political rights and privileges” completely.  Moderates and conservatives rejected these earlier versions because the language granted blanket bans on matters they felt should be left up to the states.  This proposal made it out of committee and Congress took up the debate.

    After Bingham introduced the initial “Congress shall” language to the House, Representative Hale expressed deep concern for states’ general civil and criminal legislation.  He stated:

    What is the effect of the amendment which the committee on reconstruction propose[s] for the sanction of this House and the States of the Union?  I submit that it is in effect a provision under which all State legislation, in its codes of civil and criminal jurisprudence and procedure, affecting the individual citizen, may be overridden, may be repealed or abolished, and the law of Congress established instead.  I maintain that in this respect it is an utter departure from every principle ever dreamed of by the men who framed our Constitution. . . .

    [I]t is  a grant of the fullest and most ample power to Congress to make all laws ‘necessary and proper to secure to all persons in the several States protection in the rights of life, liberty, and property[.]’[7]

    Hale continued:

    [I]f we confer upon the Federal Congress powers, in such vague and general language as this amendment contains, to legislate upon all matters pertaining to the life, liberty, and property of all the inhabitants of the several States, I put it to the gentleman, whom I know sometimes at least to be disposed to criticise this habit of liberal construction, to state where he apprehends that Congress and the courts will stop in the powers they may arrogate to themselves under this proposed amendment.[8]

    Hale sympathized with the goals of Reconstruction legislation but felt that the proposed language was dangerous to existing federalism principles:

    [T]here are other liberties as important as the liberties of the individual citizen, and those are the liberties and rights of the States.  I believe that whatever most clearly distinguishes our Government from other Governments in the extent of individual freedom and the protection of personal rights we owe to our decentralized system, to the fact that the functions of government with which the citizen has immediate relation are brought home to him, that he operates immediately upon them and they immediately upon him, instead of there being that long chain of communication which in a centralized government must extend from the fountain of power, whether despotic or republican, whether executive or legislative, to the citizen.[9]

    The amendment went back to the committee.  Subsequent debate in the committee limited the draft further.  The final draft established:

    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 Congress shall have power to enforce, by appropriate legislation, the provisions of this article.[10]

    Under the final draft, Congress had remedial powers and states would remain regulators of life, liberty, and property.  Language extending protection to “equal political rights and privileges” and “equal protection in life, liberty and property” were abandoned.  The final draft protected equal protection of the law.  When introducing the amendment to the House, Thaddeus Stevens commented on the understanding of “equal protection”:

    This amendment supplies that defect, and allows Congress to correct the unjust legislation of the States, so far that the law which operates upon one man shall operate equally upon all.  Whatever law punishes a white man for a crime shall punish the black man precisely in the same way and to the same degree.  Whatever law protects the white man shall afford “equal” protection to the black man.  Whatever means of redress is afforded to one shall be afforded to all….[11]

    Some argue that the change from “Congress shall” to “no state shall” established an absolute anti-discrimination protection that gave the courts the power to execute Section One directly.  A better interpretation of the language change, however, is an effort to address the 39th Congress’s federalism concerns over giving Congress plenary power to enact uniform laws in life, liberty, and property.  Drafters wanted this general power to remain with the states, provided those states did not abuse their authority.[12]

    Tracing the progress of Section One, we see that the initial drafts called for broad congressional enforcement of life, liberty, and property.  Revisions, however, scaled back the scope of the amendment to give Congress a supervisory enforcement role.[13]  These revisions and congressional debates illustrate the limited scope of the amendment and reflect the moderation of the radical Republicans’ open-ended platform.  With the purpose of reversing the slave codes, Section One and the CRA were not designed to be tools for social utopia.  The 39th Congress did not pass the Fourteenth Amendment with the intent for an open-ended ban on all state legislation making distinctions based on race, gender, or political rights.  In the Reconstruction Committee and before Congress, Bingham’s initial draft and his goal for far-reaching congressional powers were rejected.  Although Bingham, at least initially, intended for Congress to have an open-ended grant of power, the rest of Congress did not share Bingham’s desire in arming Congress with general regulation of life, liberty and property at the expense of state sovereignty.  The final draft specifically rejected language securing “equal protection in . . . rights of life, liberty and property,” “same political rights and privileges,”  “equal protection in the enjoyment of life, liberty and property,” and “equal political rights and privileges.”[14]  The final draft protected “equal protection of the law.”

    What does “equal protection of the law” mean?  The CRA and the debates on the amendment answer that “equal protection of the law” means equal administration or operation of the law.  We know that Congress did not mean for the Equal Protection Clause to extend congressional protection to political privileges such as the right to vote.[15]  We know that Congress did not intend for the Clause to invalidate state laws prohibiting interracial marriage.  We know it did not apply to school or jury service segregation on the basis of race.  Simply put, it was not and was never intended to be an open-ended equality provision for congressional invalidation of state laws.[16]

    The courts took over the enforcement of Section One.  A generation later, the Court’s substantive interpretations of Section One, especially the Due Process Clause and the Equal Protection Clause, reached a majority of the Court.[17]  A few generations later, substantive due process and substantive equal protection radically altered federalism and helped entrench a role for the Supreme Court to socially reengineer society.

     



    [1] This essay draws from earlier publications, Justice Stephen Field’s Expansion of the Fourteenth Amendment: From the Safeguards of Federalism to a State of Judicial Hegemony, 43 Gonz. L. Rev. 77 (2007) (SSRN) and A Story of Privileges and Immunities: From Medieval Concept to the Colonies and United States Constitution, 34 Campbell L. Rev. 7 (2011) (SSRN).

    [2] Civil Rights Act of 1866, ch. 31, § 1, 14 Stat. 27 (1866)

    [3] Alexander M. Bickel, The Original Understanding and the Segregation Decision, 69 Harv. L. Rev. 1, 29–56 (1955) (analyzing original language and revisions).

    [4] See Bickel, supra note 3, at 30 (discussing the committee’s initial consideration of the language).

    [5] See Bickel, supra note 3, at 32-33.

    [6] See Bickel, supra note 3, at 33.

    [7] Cong. Globe, 39th Cong., 1st Sess. 1063 (statement of Rep. Hale).

    [8] Cong. Globe, 39th Cong., 1st Sess. 1065 (statement of Rep. Hale).  Hale commented on the breadth of the judicial interpretation of “necessary and proper” as not implying an “indispensable necessity” but also allowing for legislation “needful, requisite, [or] conducive to” congressionally approved goals.  Id. at 1065.

    [9] Cong. Globe, 39th Cong., 1st Sess. 1065.

    [10]  U.S. Const. amend. XIV.

    [11] Rep. Stevens Cong. Globe, 39th Cong., 1st Sess. 2459 (1866) (placing the CRA of 1866 in the Constitution beyond a simple majority); Rep. Garfield Cong. Globe, 39th Cong., 1st Sess. 2462 (1866) (same).

    [12] Burrell, A Story of Privileges, supra note 1.

    [13] The 39th Congress also made similar revisions to the CRA.

    [14] Bickel, supra note 3, at 30-33; Burrell, Justice Stephen Field, supra  note 1, at 116-19.

    [15] This was changed by the Fifteenth Amendment.

    [16] For example, Sen. Trumbull, author of the CRA of 1866, stated:

    “The bill is applicable exclusively to civil rights.  It does not propose to regulate the political rights of individuals; it has nothing to do with the right of suffrage, or any other political right; but is simply intended to carry out a constitutional provision, and guaranty to every person of every color the same civil rights.”

    Cong. Globe, 39th Cong., 1st Sess. 599–600 (1866) (statement of Sen. Trumbull).  See generally Burrell, Justice Stephen Field, supra note 1, at 83–124 (discussing civil-political rights dichotomy in 39th Congress). Representative James Wilson, manager of the CRA of 1866 in the House, noted the distinction between civil rights and political rights: “What do these terms [civil rights and immunities] mean?  Do they mean that in all things civil, social, political, all citizens, without distinction of race or color, shall be equal?  By no means can they so be construed.”  Rep. Wilson Cong. Globe, 39th Cong., 1st Sess. at 1117 (1866) (rejecting suffrage, school, and jury desegregation as civil rights).

    [17] Burrell, Justice Stephen Field, supra note 1.

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