Fourteenth Amendment, Section 5 (Framing)

• Author: Michael Kent Curtis
• Pages: 1087-1089

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The FOURTEENTH AMENDMENT was proposed by Congress in 1866 and ratified in 1868. Section 1 made persons born in the nation citizens and prohibited states from abridging the PRIVILEGES AND IMMUNITIES of citizens of the United

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States and from denying DUE PROCESS or EQUAL PROTECTION to any person. Section 5 gave Congress the power to enforce the amendment by appropriate legislation. However, in 1866, the exact scope of the enforcement power was not clear. Particularly, it was unclear whether the amendment was designed to reach purely private action and conspiracies or only those in which state officials were involved. Controversy on this question has continued from 1866 to the present.

Although the debates on the Fourteenth Amendment did not emphasize the mechanics of the enforcement authorized by section 5, broad themes in the debate were clearly relevant to enforcement. Most members of the RE-PUBLICAN PARTY insisted on protection for FUNDAMENTAL RIGHTS of American citizens, were committed to a federal system that required states to respect basic rights, and were unwilling for the federal goverment to supplant the basic jurisdiction of the states over crimes and civil matters. At the same time, Republicans were determined to protect blacks and loyalists in the South.

A prototype of the Fourteenth Amendment written by Republican JOHN A. BINGHAM provided congressional power to pass all laws necessary to secure all persons equal protection in their rights to life, liberty, and property. Several Republicans objected to the prototype because they thought it would allow federal statutes broadly to supplant state civil criminal law. Bingham denied that was his purpose and said he intended to authorize Congress to punish state officers for violations of the BILL OF RIGHTS. Bingham's prototype was recast with limitations on the states in section 1 and the enforcement power in section 5. Bingham explained that the final version of the amendment would allow Congress to protect the privileges and immunities of citizens and the inborn rights of every person when these rights were abridged or denied by unconstitutional acts of any state.

Although Republicans generally believed that state laws denying privileges or immunities, due process, or equal protection could be struck down by the courts, they expected Congress to take a direct and substantial role in enforcing the guarantees of section 1. Many believed that...