This essay focuses on the creation of the Fourteenth Amendment and its impact on the founding principles of constitutional federalism. My conclusion, in brief, is that although the Fourteenth Amendment dramatically expanded the list of rights the citizens can assert against the states, it does so in a manner perfectly consistent with the principles of Madisonian federalism. In fact, the man who drafted section One of the Fourteenth Amendment insisted that those federalist principles be preserved as the country moved forward. (1)
The story of the Fourteenth Amendment begins on December 4, 1865, the opening day of the 39th Congress. (2) The Civil War was over, (3) the Thirteenth Amendment was moments away from ratification, (4) and representatives from the former rebel states stood before the Clerk of the House, waiting for their names to be called and to be readmitted to the seats that they had abandoned four years before. (5) Their names were never called and they were left there--literally standing on the floor of the House. (6) Defying the President of the United States, the Republicans in Congress refused to readmit the representatives of the former rebel states. (7) Instead, the Republicans went about trying to determine when the southern states could be safely readmitted to the Union. (8) There were two big problems that needed to be solved before the southern representatives could retake their seats.
First, the freedmen in the South needed to be protected from the infamous "Black Codes" that had denied freed men the equal rights of citizenship and the equal protection of person and property. (9) But second and even more importantly, Congress had to prevent southern Democrats from taking over Congress once they were readmitted to the Union. (10) This was a distinct possibility, ironically enough, because of the passage of the Thirteenth Amendment. (11)
Under the original Constitution, slaves counted as three-fifths of a person for the purposes of slave state representation. (12) Now that those slaves were free, they would count as a full five-fifths of a person, and automatically increase the political power of the traitors of the Union. (13) Congress could not let that happen. (14) So in addition to protecting the rights of the freedmen, Republicans had to find some way to constrain the political power of the southern states before granting them readmission. (15)
These two problems eventually would be solved by section One and Section Two of the Fourteenth Amendment. (16) But first, Congress had to decide whether an amendment was needed at all. Radical Republicans insisted that Congress enjoyed unlimited power to reconstruct the country. (17) They rejected the theory of federalism and dismissed the Tenth Amendment as irrelevant in a post-Civil War world. (18) According to their view, Congress had no need to go to the people to ask for a new amendment granting Congress new powers. (19) Congress could move immediately, and do so by way of legislation, like the Civil Rights Act of 1866. (20)
Not everyone in the 39th Congress, however, accepted the Radical Republicans' nationalist view of the Constitution. (21) Moderate and conservative Republicans agreed that Congress needed to act, but they insisted that the Constitution, properly interpreted, constrained the powers of the national government. (22) Before Congress could act, the people had to grant Congress the power to do so by adding a new amendment to the Constitution. One of these moderate Republicans was John Bingham, the author of Section One of the Fourteenth Amendment. (23) Bingham agreed with the goals of civil rights legislation, but insisted that in pursuing those goals, Congress had to pass a new amendment. (24) And until that happened, he believed the Tenth Amendment prohibited the very legislation that Congress was trying to pass. (25)
Speaking to his colleagues in the House of Representatives, Bingham insisted that Congress follow the principles of James Madison, and he quoted to his colleagues the Federalist Papers No. 45: "The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the state." (26)
This Madisonian principle, declared Bingham, was written into "the very text of the Constitution itself" through the Tenth Amendment. (27) In support of this statement, he quoted the amendment to his colleagues: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people." (28) Bingham believed in a constitution of enumerated national powers and enumerated national rights. (29) All non-enumerated subjects were reserved to the people in the states. (30) And what the Constitution lacked, Bingham insisted, was a clear statement requiring the states to respect the enumerated rights of national citizenship, particularly those listed in the Bill of Rights. (31) Although applying the Bill of Rights against the states would have the effect of expanding the list of subjects listed in Article one, Section Ten, which were already constraining the states, neither Bingham nor any of the other moderate Republicans wanted to transform the basic federalist structure of the original Constitution. (32)
The federal government would remain a government of limited enumerated powers, and it was precisely because of their continued belief in the federalist constitution that moderates like Bingham and the other Republicans insisted that an amendment was necessary in the first place. (33) Bingham therefore proposed an amendment (34)--one empowering Congress to enforce the...