Fourteenth Amendment (Framing)

AuthorWilliam E. Nelson

Page 1084

The Fourteenth Amendment to the United States Constitution consists of a variety of provisions addressed to several problems that arose when the CIVIL WAR and the abolition of slavery transformed the American political order. One sentence?"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 "?has become the text upon which most twentieth-century constitutional law is a gloss. But this sentence may not have been the most important part of the amendment as it was conceived by its framers, adopted by Congress, and ratified by the states between 1865 and 1868.

The sentence was addressed most pointedly to one of the lesser problems that Congress faced in the winter of 1865?1866. During that winter congressional legislation protecting the CIVIL RIGHTS of former slaves had been vetoed by President ANDREW JOHNSON in part, he contended, because the Constitution entrusted the protection of civil rights to the states. The Republican proponents of the CIVIL RIGHTS ACT OF 1866 mustered the necessary two-thirds vote to override the veto, but doubt remained about the power of the federal government to protect civil rights. The quoted sentence in section 1 of the Fourteenth Amendment was written, at least in part, to resolve that doubt.

Another concern of some Northerners in the winter of 1865?1866 was that some future Congress might repudiate the debt that the federal government had amassed during the Civil War or might undertake to pay the Confederate debt or compensate former slaveholders for the loss of their slaves. Section 4 of the amendment guaranteed the national debt, prohibited the payment of the Confederate debt, and barred compensation to slaveholders.

However, the most urgent task that the Thirty-ninth Congress confronted when it began its first session in December 1865 was to establish governments in the South that would be loyal to the Union and send loyal representatives to Congress. The problem was compounded by the ratification of the THIRTEENTH AMENDMENT, which not only abolished slavery but also put an end to the original Constitution's THREE-FIFTHS CLAUSE. With the abolition of slavery, the former slaves would be fully counted as part of the population of the former Confederate states; as a result those states would have more power in Congress and the ELECTORAL COLLEGE than they had had before the Civil War. Something had to be done to insure that the war did not increase the political power of the disloyal groups that had brought the war about.

Three solutions were advanced to prevent those who had lost the Civil War from enhancing their power as a result of it. One was to confer the franchise on Southern blacks, whose votes were expected to bring about the election of loyal candidates. A second solution was to deny political rights?both the right to vote and the right to hold office?to some or all who had participated in the rebellion against national authority. This scheme would increase the number of districts in which Union loyalists had a majority or at least some power to tip the electoral balance in favor of loyal candidates.

A third solution was to alter the basis of representation: to base a state's number of representatives in the House and hence its votes in the Electoral College not on total

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population but on the number of people eligible to vote. Thus, if a state excluded blacks from the right to vote, they would not be counted in determining its representation in Congress and its vote in the Electoral College. Thus the abolition of slavery and the end of the three-fifths compromise would reduce Southern political power in Congress unless Southern states gave blacks the right to vote and hence a share in that power.

The JOINT COMMITTEE ON RECONSTRUCTION, established by CONCURRENT RESOLUTIONS of the House and Senate in the opening days of the Congress, sought to put the possible solutions into some sort of order. Four members of this fifteen-man committee were most prominent in its activities: JOHN A. BINGHAM and THADDEUS STEVENS from the House and WILLIAM PITT FESSENDEN and JACOB M. HOWARD from the Senate.

At the third meeting of the Joint Committee on January 12, 1866, Bingham proposed a constitutional amendment that would give Congress "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." The proposal was referred to a subcommittee which eight days later...

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