Sunday, January 20, 2008

Where is the US headed?

Where have we been? Is the US Constitution still valid?

There were two major speeches - one in the House of Reps. and one in the Senate.
There had previously been extensive debates earlier on civil rights matters and the representation question, such as the repeal of the 3/5 clause in Art. I, Sec. 2 by to the 13th Amendment.

It is made clear that the amendment is only a restriction on the states, that is, on persons acting as state agents, and not on the private actions of civilians.
Rep. Stevens - speech on H.R. 127 (proposed 14th Amendment) May 8, 1866
Congressional Globe, 39th Congress, 1st Session
P. 2459 col 2 bottom
The first section prohibits the States from
abridging the privileges and immunities of cit-
izens of the United States, or unlawfully de-
priving them of life, liberty, or property, or of
denying to any person within their jurisdiction
the “equal” protection of the laws.
I can hardly believe that any person be
found who will not admit that every on of
these provisions is just. They are all asserted,
in some form or other, in our Declaration or
organic law. But the Constitution limits only
the action of Congress, and is not a limitation
on the States. This amendment supplies that
P. 2459 col 3

defect, and allows Congress to correct the un-
just legislation of the States, so far that the law
which operates upon one man shall operate
equally upon all. Whatever law punishs 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. Whatever law
allows the white man to testify in court shall
allow the man of color to do the same. These
are great advantages over the present codes.
Now different degrees of punishment are in-
flicted, not on account of the magnitude of the
crime, but according to the color of the skin.
Now color disqualifies a man from testifying in
courts, or being tried in the same way as white
men. I need not enumerate these partial and
oppressive laws. Unless the Constitution should
restrain them those States will all, I fear, keep
up this discrimination, and crush to death the
hated freedmen. Some answer, “Your civil
rights bill secures the same things.” That is
partly true, but a law is repealable by a majority.
The second section I consider the most im-
portant in the article. It fixes the basis of rep-
resentation in Congress. If any State shall
exclude any of her adult male citizens from the
elective franchise, or abridge that right, she
shall forfeit her right to representation in the
same proportion. The effect of this provision
will be either to compel the States to grant
universal suffrage or so to shear them of their
power as to keep them forever in a hopeless
minority in the national Government, both
legislative and executive. If they do not en-
franchise the freedmen, it would give to the
rebel States but thirty-seven Representatives.


Senator Howard - speech on H.R. 127 (proposed 14th Amendment) May 23,1866
Congressional Globe, 39th Congress, 1st Session
P. 2765 col 1 bottom

The first section of the amendment they have
submitted for the consideration of the two
Houses relates to the privileges and immunities
of citizens of the several States, and to the rights
and privileges of all persons, whether citizens
or others, under the laws of the United States.
It declares that -
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 pro-
cess of law; nor deny to any person within its juris-
diction the equal protection of the laws.
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. This is its first
clause, and I regard it as very important. It
also prohibits each one of the States from
depriving any person of life, liberty or prop-
erty without due process of law, or denying
to any person within the jurisdiction of the
State the equal protection of the laws.
P. 2765 col 2
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 Uni-
ted States. It is not, perhaps, very easy to
define with accuracy what is meant by the ex-
pression, “citizen of the United States,” al-
though the expression occurs twice in the Con-
stitution, once in reference to the President of
the United States, in which instance it is de-
clared that none but a citizen of the United
States shall be President, and again in refer-
ence to Senators, who are likewise to be citizens
of the United States. Undoubtedly the expres-
sion is used in both those instances in the same
sense in which it is employed in the amendment
now before us. A citizen of the United States
is held by the courts to be a person who was
born within the United States and
subject to their laws. Before the adoption of
the Constitution of the United States, the citi-
zens of each State were, in a qualified sense
at least, aliens to one another, for the reason
that the several States before that event were
regarded by each other as independent Govern-
ments, each one possessing a sufficiency of sov-
ereign power to enable it to claim the right of
naturalization; and, undoubtedly, each one of
them possessed for itself the right of natural-
izing foreigners, and each one, also, if it had
seen fit so to exercise its sovereign power, might
have declared the citizens of every other State
to be aliens in reference to itself. With a view
to prevent such confusion and disorder, and to
put the citizens of the several States on an
equality with each other as to all fundamental
rights, a clause was introduced in the Consti-
tution declaring that “the citizens of each State
shall be entitled to all privileges and immuni-
ties of citizens in the several States.”
The effect of this clause was to constitute
ipso facto the citizens of each one of the origi-
nal States citizens of the United States. And
how did they antecedently become citizens of
the several States? By birth or by naturaliza-
tion. They became such in virtue of national
law, or rather of natural law which recognizes
persons both within the jurisdiction of every
country as being subjects of citizens of that
country. Such persons were, therefore, citi-
zens of the United States as were born in the
country or were made such by naturalization;
and the Constitution declares that they are
entitled, as citizens, to all the privileges and
immunities of citizens in the several States.
They are, by constitutional right, entitled to
these privileges and immunities, and may as-
sert this right and these privileges and immu-
nities, and ask for their enforcement whenever
they go within the limits of the several States
of the Union.
It would be a curious question to solve what
are the privileges and immunities of the citizens
of each of the States in the several States. I
do not propose to go at any length into that
question at this time. It would be a a somewhat
barren discussion. But it is certain the clause
was inserted in the Constitution for some good
purpose. It has in view some results beneficial
to the citizens of the several States, or it would
not be found there; yet I am not aware that
the Supreme Court have ever undertaken to
define either the nature or extent of te priv-
ileges and immunities thus guarantied. In-
deed, if my recollection serves me, that court,
on a certain occasion not many years since,
when this question seemed to present itself to
them, very modestly declined to go into a
definition of them, leaving questions arising
under the clause to be discussed and adjudi-
cated when they should happen practically to
arise. But we may gather some intimation of
what probably will be the opinion of the judi-
ciary by referring to a case adjudged many
years ago in one of the circuit courts of the
United States by Judge Washington; and I
will trouble the Senate but for a moment by
reading what the very learned and excellent
judge says about these privileges and immuni-
tes of the citizens of each State in the several
P. 2765 col. 3

States. It is the case of Corfield vs. Coryell,
found in 4 Washington’s Circuit Court Reports,
page 880. Judge Washington says:
“The next question is whether this act infringes
that section of the Constitution which declares that
‘the citizens of each shall be entitled to all
privileges and immunities of citizens in the several
“The inquiry is, what are the privileges and immu-
nities of citizens in the several States? We feel no
hesitation in confining these expressions to 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 comprise 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 follow-
general head: 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 partic-
ular privileges and immunities of citizens which are
clearly embraced by the general description of privi-
leges deemed to be fundamental, to which may be
added the elective franchise, as regulated and estab-
lished 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, and the enjoyment of
them by the citizens of each State in every other
State was manifestly calculated (to use the expres-
sions of the preamble of the corresponding provision
in the old Articles of Confederation) the better to
secure and perpetuate mutual friendship and inter-
course among the people of the different States of
the Union.’ “
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 de-
fined in their entire extent and precise nature
-to these should be added the personal rights
guarantied and secured by the first eight amend-
ments 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 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 for unreasonable
searches and seizures, and from any search or
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 excess-
ive bail and against cruel and unusual punish-
Now, sir, here is a mass of privileges, im-
munities, 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 im-
munities, 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 re-
traint or prohibition upon State legislation.
States are not affected by them, and its has been
repeatedly held that the restriction contained
in the Constitution against the the taking of pri-
vate property for public use without just com-
pensation is not a restriction upon State legis-
lation, but applies only to the legislation of
Now, sir, there is no power given in the Con-
stitution to enforce and to carry out any of
these guarantees. They are not powers granted
by the Constitution to Congress, and of course
P. 2766 col. 1
do not come within the sweeping 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 com-
pel them at all times to respect these great
fundamental guarantees. How will it be done
under the present amendment? As I have
remarked, they are not powers granted to
Congress, and therefore it is necessary, if they
are to be effectuated and enforced, as they
assuredly ought to be, that additional power
should be given to Congress to that end. This
is done by the fifth section of the this amendment,
which declares that “the Congress shall have
power to enforce by appropriate legislation the
provisions of this article.” Here is a direct
affirmative delegation of power to Congress to
carry out all the principles of all these guar-
antees, a power not found in the Constitution.
The last two clauses of the first section of
the amendment disable a State from depriving
not merely a citizen of the United States, but
any person, whoever he may be, of life, liberty,
or property without due process of law, or from
denying to him the equal protection of the laws
of the State. This abolishes all class legisla-
tion in the States and does away with the in-
justice of subjecting one caste of persons to
a code not applicable to another. It pro-
hibits the hanging of a black man for a crime
for which the white man is not to be hanged.
It protects the black man in his fundamental
rights as a citizen with the same shield which
it throws over the white man. Is it not time,
Mr. President, that we extend to the black
man, I had almost callied it the poor privilege
of the equal protection of the law? Ought not
the time to be now passed when one measure
of justice is to be meted out to a member of
one caste while another and a different meas-
ure is meted out to the member of another
caste, both castes being alike citizens of the
United States, both bound to obey the same
laws, to sustain the burdens of the same Gov-
ernment, and both equally responsible to justice
and to God for the deeds done in the body?
But, sir, the first section of the proposed
amendment does not give to either of these
classes the right of voting. The right of suf-
frage is not, in law, one the privileges or im-
munities thus secured by the Constitution. It
is merely a creature of law. It has always
been regarded in this country as the result of
positive local law, not regarded as one of those
fundamental rights lying as the basis of all
society and without which a people cannot
exist except as slaves, subject to a despotism.
As I have already remarked, section one is
a restriction upon the States, and does not, of
itself, confer any power upon Congress. The
power which Congress has, under this amend-
ment, is derived, not from that section, but
from the fifth section, which gives it authority
to pass laws which are appropriate to the at-
tainment of the great object of the amendment.
I look upon the first section, taken in connec-
tion with the fifth, as very important. It will,
if adopted by the States, forever disable every
one of them from passing laws trenching upon
those fundamental rights and immunities which
pertain to citizens of the United States, and to
all persons which may happen to be within their
jurisdiction. It establishes equality before the
law, and it gives to the humblest, the poorest,
the most despised of the race the same rights
and the same protection before the law as it
gives to the most powerful, the most wealthy,
or the most haughty. That, sir, it republican
government, as I understand it, and the only
one which can claim the praise of a just Gov-
ernment. Without this principle of equal jus-
P. 2766 col. 2
tice to all men and equal protection under the
shield of the law, there is no republican gov-
ernment and none that is really worth main-
The second section of the proposed amend-
ment reads as follows:
Sec. 2. Representatives shall be apportioned among
the several States which may be included within
the Union, according to their respective numbers,
counting the whole number of persons in each State,
excluding Indians not taxed. But whenever, in any State
the elective franchise shall be denied to any
portion of its male citizens not less than twenty-
one years of age, or in any way abridged, except for
participation in rebellion or other crime, the basis
of representation in such State shall be reduced in
the proportion which the number of such male citizens-
That is, citizens as to whom the right of
voting is denied or abridged-
shall bear to the whole number of male citizens
not less than twenty-one years of age.
It is very true, and I am sorry to be obliged
to acknowledge it, that this section of the
amendment does not recognize the authority
of the United States over the question of suf-
frage in the several States at all; nor does
it recognize, much less secure, the right of
suffage to the colored race.
The committee were of opinion that the
States are not yet prepared to sanction so fun-
damental a change as would be the concession
of the right of suffrage to the colored race.
P. 2766 col. 3
*** It was our opinion that three fourths
of the States of this Union could not be in-
duced to vote to grant the right of suffrage,
even in any degree or under any restiction,
to the colored race. ***
The second section leaves the right to regu-
late the elective franchise still with the States,
and does not meddle with that right. Its basis
of representation is numbers, whether the num-
bers be white or black; that is, the whole
population except untaxed Indians and per-
sons excluded by the State laws for rebellion
or other crime.
P. 2767 col. 1
The committee *** thought it wiser to
adopt a general principle applicable to all the
States alike, namely, that where a State ex-
cludes any part of its male citizens from the
elective franchise, it shall lose Representa-
tives in proportion to the numbers so excluded;
and the clause applies not to color or to race
at all, but simply to the fact of the individual
P. 2767 col. 2.
*** No matter what
may be the ground for exclusion, whether a
want of eduction, a what of property, a want
of color, or a want of anything else, it is suffi-
cient that the person is excluded from the cate-
gory of voters, and the State loses representa-
tion in proportion.
[regarding “abridged”]
I suppose it would admit of the following
application: a State in the exercise of its
sovereign power of the question of suffrage
might permit one person to vote for a member
of the State Legislature, but prohibit the same
person from voting for a Representative in
Congress. That would be an abridgment of
the right of suffrage; and that person would
be included in the exclusion, so that the rep-
resentation from the State would be reduced in
proportion to the exclusion of persons whose
rights were thus abridged.
It is not an abridgment
to a caste of class of persons but the abridg-
ment or the denial applies to the persons
individually. ***
P. 2766 col. 3
Mr. Johnson. Females as well as males?
Mr. Howard. Mr. Madison does not say
anything about females.
Mr. Johnson. “Persons.”
Mr. Howard. I believe Mr. Madison was
old enough and wise enough to take it for granted
there was such a thing as the law of nature which
has a certain influence even in political affairs,
and that by that law women and children were
not regarded as the equals of men. Mr. Madi-
son would not have quibbled about the question
of women’s voting or of an infant’s voting.
He lays down a broad democratic principle,
that those who are to be bound by the laws
ought to have a voice in making them; and
everywhere mature manhood is the represent-
ative type of the human race.
Note --- After H.R. 127 passed the House of Reps., the Senate added the citizenship sentence to Sec. 1 and amended Sec. 2 which then passed the House of Reps. and was sent to the States for ratification.


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