Well, I’m going out of order, but hey, it’s my blog, so tough. Having told you about Corfield v. Coryell, I’m going to discuss the principal speech of Senator Jacob Howard (Republican – Michigan), who discussed the case. It also gives me an opportunity to give Raoul Berger a whack or two.
Senator Howard was a member of the Joint Committee on Reconstruction, which created the Fourteenth Amendment. He was considered at the time, and historians consider him now, a moderate. It’s worth bearing that in mind. If Senator Howard he was a “moderate,” does it make sense to think that “Radical Republicans” disagreed with what he said?
Senator Howard presented the Joint Resolution containing the proposed amendment to the Senate, sitting as a committee of the whole, on behalf of the Joint Committee in a speech on May 23, 1866. The speech appears in the Congressional Globe, Cong. Globe, 39th Cong., 1st sess., 2764, et seq. (May 23, 1866), and is available online. By all means read it yourself.
After some introductory remarks, Senator Howard quoted the draft of Section 1 as it then stood:
“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.”
The Senator then began his discussion as follows:
“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. That is the first clause, and I regard it as very important. . . .
“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 United States. It is not, perhaps, very easy to define with accuracy what is meant by the expression, ‘citizen of the United States.’”
Senator Howard then moved on to the meaning of the phrase “privileges or immunities” in the proposed amendment. He began by citing and quoting at length from Corfield v. Coryell to identify some of the privileges and immunities secured by Article IV, Section 2. His quotation from Corfield v. Coryell included the entire passage that I quoted in an earlier entry.
He then continued (emphasis added):
“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 defined in their entire extent and precise nature – to these should be added the personal rights guarantied and secured by the first eight amendments 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 to 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 from unreasonable searches and seizures, and from any search and 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 excessive bail and against cruel and unusual punishments.
“Now, sir, here is a mass of privileges, immunities, 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 immunities, 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 restraint or prohibition upon State legislation. States are not affected by them, and it has been repeatedly held that the restriction contained in the Constitution against the taking of private property for public use without just compensation is not a restriction upon State legislation, but applies only to the legislation of Congress.
“Now, sir, there is no power given in the Constitution to enforce and to carry out any of these guaranties. They are not powers granted by the Constitution to Congress, and of course do not come within the sweeping clause [another name for the Necessary and Proper 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 compel them at all times to respect these great fundamental guaranties.”
In short, Senator Howard specifically and clearly stated that the “privileges and immunities” protected by the amendment included “the personal rights guarantied and secured by the first eight amendments of the Constitution." He then specifically mentioned:
* “the freedom of speech and of the press” (the First Amendment);
* “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 First Amendment again);
* “the right to keep and to bear arms” (the Second Amendment);
* “the right to be exempted from the quartering of soldiers in a house without the consent of the owner” (the Third Amendment);
* “the right to be exempt from unreasonable searches and seizures, and from any search and seizure except by virtue of a warrant issued upon a formal oath or affidavit” (the Fourth Amendment);
* "the restriction contained in the Constitution against the taking of private property for public use without just compensation" (the Fifth Amendment);
* “the right of an accused person to be informed of the nature of the accusation against him (the Sixth Amendment);
* “his right to be tried by an impartial jury of the vicinage” (the Sixth Amendment again);
* “the right to be secure against excessive bail and against cruel and unusual punishments (the Eighth Amendment).
It is, frankly, hard to imagine a statement that more clearly conveys the point that the “privileges or immunities” clause of the proposed amendment was intended to incorporate the Bill of Rights.
In his book Government by Judiciary, Raoul Berger attempted to minimize Senator Howard’s speech. He said that the sum and substance of Senator Howard’s contribution to the incorporation debate was simply noting, after the privileges and immunities listed in Corfield v. Coryell, that “to these privileges and immunities . . . should be added the personal rights guarantied and secured by the first eight amendments.” According to Berger, this “remark” by Senator Howard was “casually tucked away in a long speech.”
I have quoted at length from Senator Howard’s speech precisely because it makes crystal clear how dishonest Berger’s description is. Michael Kent Curtis has correctly described Berger’s characterization as “grossly inaccurate:”
“The characterization is grossly inaccurate. In his speech Howard listed rights included in the Bill of Rights, pointed out that the courts had held that they did not operate as a restraint or prohibition on state legislation, summarized the holding in Barron v. Baltimore, and said that ‘the great object of the first section of this amendment is, therefore, to restrain the power of the States and to compel them at all times to respect these great fundamental guaranties.’ Howard’s statement on the Bill of Rights comprises about one-half of his entire discussion of the privileges or immunities clause of the Fourteenth Amendment and about one-ninth of his ‘long’ speech. In short, treatment of it as a ‘remark casually tucked away in a long speech’ is a serious misstatement.”
Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights at pp. 126-27 (footnotes omitted).
Senator Howard’s speech – including the portions in which he specifically referred to the Bill of Rights – was reported in detail in the press. Both the New York Times, on May 24, 1866, and the New York Herald (the latter then ranked as the nation’s best-selling newspaper) reprinted the passage on the Bill of Rights on their front pages. Curtis, No State Shall Abridge, p. 128; Akhil Amar, America’s Constitution: A Biography, p. 197.
Previous posts:
The Fourteenth Amendment and Incorporation I
The Fourteenth Amendment and Incorporation II
The Fourteenth Amendment and Incorporation III
The Fourteenth Amendment and Incorporation IV
Senator Howard was a member of the Joint Committee on Reconstruction, which created the Fourteenth Amendment. He was considered at the time, and historians consider him now, a moderate. It’s worth bearing that in mind. If Senator Howard he was a “moderate,” does it make sense to think that “Radical Republicans” disagreed with what he said?
Senator Howard presented the Joint Resolution containing the proposed amendment to the Senate, sitting as a committee of the whole, on behalf of the Joint Committee in a speech on May 23, 1866. The speech appears in the Congressional Globe, Cong. Globe, 39th Cong., 1st sess., 2764, et seq. (May 23, 1866), and is available online. By all means read it yourself.
After some introductory remarks, Senator Howard quoted the draft of Section 1 as it then stood:
“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.”
The Senator then began his discussion as follows:
“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. That is the first clause, and I regard it as very important. . . .
“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 United States. It is not, perhaps, very easy to define with accuracy what is meant by the expression, ‘citizen of the United States.’”
Senator Howard then moved on to the meaning of the phrase “privileges or immunities” in the proposed amendment. He began by citing and quoting at length from Corfield v. Coryell to identify some of the privileges and immunities secured by Article IV, Section 2. His quotation from Corfield v. Coryell included the entire passage that I quoted in an earlier entry.
He then continued (emphasis added):
“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 defined in their entire extent and precise nature – to these should be added the personal rights guarantied and secured by the first eight amendments 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 to 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 from unreasonable searches and seizures, and from any search and 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 excessive bail and against cruel and unusual punishments.
“Now, sir, here is a mass of privileges, immunities, 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 immunities, 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 restraint or prohibition upon State legislation. States are not affected by them, and it has been repeatedly held that the restriction contained in the Constitution against the taking of private property for public use without just compensation is not a restriction upon State legislation, but applies only to the legislation of Congress.
“Now, sir, there is no power given in the Constitution to enforce and to carry out any of these guaranties. They are not powers granted by the Constitution to Congress, and of course do not come within the sweeping clause [another name for the Necessary and Proper 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 compel them at all times to respect these great fundamental guaranties.”
In short, Senator Howard specifically and clearly stated that the “privileges and immunities” protected by the amendment included “the personal rights guarantied and secured by the first eight amendments of the Constitution." He then specifically mentioned:
* “the freedom of speech and of the press” (the First Amendment);
* “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 First Amendment again);
* “the right to keep and to bear arms” (the Second Amendment);
* “the right to be exempted from the quartering of soldiers in a house without the consent of the owner” (the Third Amendment);
* “the right to be exempt from unreasonable searches and seizures, and from any search and seizure except by virtue of a warrant issued upon a formal oath or affidavit” (the Fourth Amendment);
* "the restriction contained in the Constitution against the taking of private property for public use without just compensation" (the Fifth Amendment);
* “the right of an accused person to be informed of the nature of the accusation against him (the Sixth Amendment);
* “his right to be tried by an impartial jury of the vicinage” (the Sixth Amendment again);
* “the right to be secure against excessive bail and against cruel and unusual punishments (the Eighth Amendment).
It is, frankly, hard to imagine a statement that more clearly conveys the point that the “privileges or immunities” clause of the proposed amendment was intended to incorporate the Bill of Rights.
In his book Government by Judiciary, Raoul Berger attempted to minimize Senator Howard’s speech. He said that the sum and substance of Senator Howard’s contribution to the incorporation debate was simply noting, after the privileges and immunities listed in Corfield v. Coryell, that “to these privileges and immunities . . . should be added the personal rights guarantied and secured by the first eight amendments.” According to Berger, this “remark” by Senator Howard was “casually tucked away in a long speech.”
I have quoted at length from Senator Howard’s speech precisely because it makes crystal clear how dishonest Berger’s description is. Michael Kent Curtis has correctly described Berger’s characterization as “grossly inaccurate:”
“The characterization is grossly inaccurate. In his speech Howard listed rights included in the Bill of Rights, pointed out that the courts had held that they did not operate as a restraint or prohibition on state legislation, summarized the holding in Barron v. Baltimore, and said that ‘the great object of the first section of this amendment is, therefore, to restrain the power of the States and to compel them at all times to respect these great fundamental guaranties.’ Howard’s statement on the Bill of Rights comprises about one-half of his entire discussion of the privileges or immunities clause of the Fourteenth Amendment and about one-ninth of his ‘long’ speech. In short, treatment of it as a ‘remark casually tucked away in a long speech’ is a serious misstatement.”
Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights at pp. 126-27 (footnotes omitted).
Senator Howard’s speech – including the portions in which he specifically referred to the Bill of Rights – was reported in detail in the press. Both the New York Times, on May 24, 1866, and the New York Herald (the latter then ranked as the nation’s best-selling newspaper) reprinted the passage on the Bill of Rights on their front pages. Curtis, No State Shall Abridge, p. 128; Akhil Amar, America’s Constitution: A Biography, p. 197.
Previous posts:
The Fourteenth Amendment and Incorporation I
The Fourteenth Amendment and Incorporation II
The Fourteenth Amendment and Incorporation III
The Fourteenth Amendment and Incorporation IV
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