All agree that, if the Fourteenth Amendment applied the Bill of Rights to the states, it was the first section of the Amendment that did so. Nonetheless, it is worth looking at the entire Amendment to furnish context:
“XIV - Citizen rights not to be abridged
“Passed by Congress June 13, 1866. Ratified July 9, 1868
“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 to deny to any person within its jurisdiction the equal protection of the laws.
“2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of Electors for President and Vice-President of the United States, Representatives in Congress, the executive and judicial officers of a State, or the members of the legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
“3. No person shall be a Senator or Representative in Congress, or Elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State Legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
“4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
“5. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”
For present purposes, and putting the first section aside for the time being, the key point to note is that the document was intensely political and of vital importance to the politicians who sought and opposed its passage. Section 3, for example, disqualified many pre-War southern officeholders from serving in the House and Senate or state offices. As a practical matter, this was expected to be highly advantageous to the Republican party. As the states in the Confederacy retook their seats in Congress, many southern pre-War officeholders and opinion leaders – the people who had led their states out of the Union – would be excluded, The hope was that this would make it more likely that others, more sympathetic to the Union and Republican values, to compete and take their place.
At the same time, Section 2 was designed to penalize southern states unless they permitted black males to vote. To the extent a state failed to permit all male citizens 21 years of age or older – including black male citizens -- to vote, that state’s representation in the House would be proportionately reduced. Either way, Republicans would presumably benefit. On a best case basis, the franchise would be given to black males, who would presumably vote overwhelmingly for Republican candidates. On a worst case basis, states that restricted the vote would be entitled to elect a reduced number of electors that would not threaten the Republican majority in the House.
This is not to say that the Fourteenth Amendment was simply a cynical political ploy. Many may well have viewed the Amendment as embodiment of Republican and American principles. Some, such as Thaddeus Stevens, the Radical Republican Congressman from Pennsylvania, believed that the Amendment did not go far enough because it did not guarantee the vote to black males.
Rather, the point is that, to many contemporary politicians and observers, Section 1 did not stand out as the most important provision of the Amendment. Much of the debate was focused elsewhere, on politically volatile issues such as those contained in Sections 2 and 3. For example, in his speech in support of the Amendment, Thaddeus Stevens spent little time on Section 1 and far more attention to later sections: “The Second Section I consider the most important article.” Cong. Globe, 39th Cong., 1st Sess. 2459 (May 8, 1866). Two days later, during a debate about Section 3, he said:
“Without that [Section 3], [the Amendment] amounts to nothing. I do not care a snap of my finger whether it be passed or not if that be stricken out. Before another Congress shall have assembled here, and before [the rest of the Amendment] can be carried into full effect, there will be no friends of the Union left on this side of the House to carry it out . . . . [T]he House will be filled with yelling secessionists and hissing copperheads. Give us the third section or give us nothing. Do not balk us with the pretense of an amendment which throws the Union into the hands of the enemy before it becomes consolidated.”
Cong. Globe, 39th Cong., 1st Sess. 2544.
This, in turn, helps explain the rather scant “legislative history” of Section 1 (that is, the amount of time and the number of words that the legislators devoted to explaining and arguing the meaning of the section). For the past eighty years or so, virtually all discussion about the Fourteenth Amendment has focused on Section 1. But at the time, that was simply not the case. In evaluating the legislative discussion of Section 1, we must always bear this in mind.
“XIV - Citizen rights not to be abridged
“Passed by Congress June 13, 1866. Ratified July 9, 1868
“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 to deny to any person within its jurisdiction the equal protection of the laws.
“2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of Electors for President and Vice-President of the United States, Representatives in Congress, the executive and judicial officers of a State, or the members of the legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
“3. No person shall be a Senator or Representative in Congress, or Elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State Legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
“4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
“5. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”
For present purposes, and putting the first section aside for the time being, the key point to note is that the document was intensely political and of vital importance to the politicians who sought and opposed its passage. Section 3, for example, disqualified many pre-War southern officeholders from serving in the House and Senate or state offices. As a practical matter, this was expected to be highly advantageous to the Republican party. As the states in the Confederacy retook their seats in Congress, many southern pre-War officeholders and opinion leaders – the people who had led their states out of the Union – would be excluded, The hope was that this would make it more likely that others, more sympathetic to the Union and Republican values, to compete and take their place.
At the same time, Section 2 was designed to penalize southern states unless they permitted black males to vote. To the extent a state failed to permit all male citizens 21 years of age or older – including black male citizens -- to vote, that state’s representation in the House would be proportionately reduced. Either way, Republicans would presumably benefit. On a best case basis, the franchise would be given to black males, who would presumably vote overwhelmingly for Republican candidates. On a worst case basis, states that restricted the vote would be entitled to elect a reduced number of electors that would not threaten the Republican majority in the House.
This is not to say that the Fourteenth Amendment was simply a cynical political ploy. Many may well have viewed the Amendment as embodiment of Republican and American principles. Some, such as Thaddeus Stevens, the Radical Republican Congressman from Pennsylvania, believed that the Amendment did not go far enough because it did not guarantee the vote to black males.
Rather, the point is that, to many contemporary politicians and observers, Section 1 did not stand out as the most important provision of the Amendment. Much of the debate was focused elsewhere, on politically volatile issues such as those contained in Sections 2 and 3. For example, in his speech in support of the Amendment, Thaddeus Stevens spent little time on Section 1 and far more attention to later sections: “The Second Section I consider the most important article.” Cong. Globe, 39th Cong., 1st Sess. 2459 (May 8, 1866). Two days later, during a debate about Section 3, he said:
“Without that [Section 3], [the Amendment] amounts to nothing. I do not care a snap of my finger whether it be passed or not if that be stricken out. Before another Congress shall have assembled here, and before [the rest of the Amendment] can be carried into full effect, there will be no friends of the Union left on this side of the House to carry it out . . . . [T]he House will be filled with yelling secessionists and hissing copperheads. Give us the third section or give us nothing. Do not balk us with the pretense of an amendment which throws the Union into the hands of the enemy before it becomes consolidated.”
Cong. Globe, 39th Cong., 1st Sess. 2544.
This, in turn, helps explain the rather scant “legislative history” of Section 1 (that is, the amount of time and the number of words that the legislators devoted to explaining and arguing the meaning of the section). For the past eighty years or so, virtually all discussion about the Fourteenth Amendment has focused on Section 1. But at the time, that was simply not the case. In evaluating the legislative discussion of Section 1, we must always bear this in mind.
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