All right. Back to the Fourteenth Amendment and Incorporation after a substantial delay. Let's look next at the speech of Senator Luke P. Poland (Republican, VT). Senator Poland's speech is sometimes cited as supporting the proposition that the Fourteenth Amendment was not intended to apply the Bill of Rights to the states. In fact, it proves exactly the opposite.
Senator Poland spoke on June 5, 1886 (thirteen days after Senator Howard gave his speech). He spoke only briefly about Section 1, precisely because, he said, he did not disagree with what had already been said (including, presumably, Senator Howard's explicit and widely-reported statements that the Privileges or Immunites Clause was designed to incorporate the Bill of Rights). Senator Poland explained that "all the questions in the proposed amendments to the Consititution have been so elaborately and ably discussed on former occasions during the present session that I do not feel at liberty to attempt to argue them at length and in detail."
Senator Poland's speech has been misinterpreted because he apparently did not understand that, in Barron v. Baltimore, the Supreme Court had held that the Bill of Rights did not apply to or limit the states -- or at least, in common with many Republicans, Senator Poland seems to have believed that the Constitution, properly construed, had always required the States to protect fundamental rights. He expressed the opinion that the Privileges or Immunities clause secured “nothing beyond what was intended” by the similar provision in the original Constitution -- and he then quoted the Privileges and Immunities Clause, Article IV, Section 2.
But, he complained, slavery had led “to a practical repudiation of the existing provision on this subject, and it was disregarded in many of the states. State legislation was allowed to override it.” It became “really a dead letter.”
In addition, Senator Poland analyzed Section 1 as follows:
“It is essentially declared in the Declaration of Independence and in all the provisions of the Constitution. Notwithstanding this we know that State laws exist, and some of them of very recent enactment, in direct violation of these principles. Congress has already shown its desire and intention to uproot and destroy all such partial State legislation in the passage of what is called the civil rights bill.... It certainly seems desirable that no doubt should be left existing as to the power of Congress to enforce principles lying at the foundation of all republican government if they be denied or violated by the States.”
The reference to “State laws . . . of very recent enactment” almost certainly alludes to laws passed by southern states restricting the right to bear arms, and the reference “to all the provisions of the Constitution” almost certainly includes the Bill of Rights, and the Second Amendment in particular. Congress had recently received a report complaining about the passage of laws in southern States depriving returning freedmen, recently discharged from the Union Army, of the right to carry arms (the penalties included flogging). In response, just days before Senator Poland’s speech, the House had passed the second Freedmen’s Bill, which contained a provision protecting “the constitutional right to bear arms.” (Ironically, the jurisdictional basis for the provision was the Thirteenth Amendment – reflecting the fact that many Republicans believed that that amendment had already imposed the Bill of Rights on the States.)
In short, Senator Poland may have had a mistaken understanding of the original meaning of the Privileges and Immunities Clause in Article IV. However, any reasonable person listening to Senator Poland’s comments in 1866 would have had every reason to believe that his views concerning Section 1 were entirely in accord with those previously expressed by Senator Howard and that Senator Poland believed that Section 1 would forbid States from depriving their citizens of their basic rights, including those embodied in the Bill of Rights.
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
The Fourteenth Amendment and Incorporation V
Senator Poland spoke on June 5, 1886 (thirteen days after Senator Howard gave his speech). He spoke only briefly about Section 1, precisely because, he said, he did not disagree with what had already been said (including, presumably, Senator Howard's explicit and widely-reported statements that the Privileges or Immunites Clause was designed to incorporate the Bill of Rights). Senator Poland explained that "all the questions in the proposed amendments to the Consititution have been so elaborately and ably discussed on former occasions during the present session that I do not feel at liberty to attempt to argue them at length and in detail."
Senator Poland's speech has been misinterpreted because he apparently did not understand that, in Barron v. Baltimore, the Supreme Court had held that the Bill of Rights did not apply to or limit the states -- or at least, in common with many Republicans, Senator Poland seems to have believed that the Constitution, properly construed, had always required the States to protect fundamental rights. He expressed the opinion that the Privileges or Immunities clause secured “nothing beyond what was intended” by the similar provision in the original Constitution -- and he then quoted the Privileges and Immunities Clause, Article IV, Section 2.
But, he complained, slavery had led “to a practical repudiation of the existing provision on this subject, and it was disregarded in many of the states. State legislation was allowed to override it.” It became “really a dead letter.”
In addition, Senator Poland analyzed Section 1 as follows:
“It is essentially declared in the Declaration of Independence and in all the provisions of the Constitution. Notwithstanding this we know that State laws exist, and some of them of very recent enactment, in direct violation of these principles. Congress has already shown its desire and intention to uproot and destroy all such partial State legislation in the passage of what is called the civil rights bill.... It certainly seems desirable that no doubt should be left existing as to the power of Congress to enforce principles lying at the foundation of all republican government if they be denied or violated by the States.”
The reference to “State laws . . . of very recent enactment” almost certainly alludes to laws passed by southern states restricting the right to bear arms, and the reference “to all the provisions of the Constitution” almost certainly includes the Bill of Rights, and the Second Amendment in particular. Congress had recently received a report complaining about the passage of laws in southern States depriving returning freedmen, recently discharged from the Union Army, of the right to carry arms (the penalties included flogging). In response, just days before Senator Poland’s speech, the House had passed the second Freedmen’s Bill, which contained a provision protecting “the constitutional right to bear arms.” (Ironically, the jurisdictional basis for the provision was the Thirteenth Amendment – reflecting the fact that many Republicans believed that that amendment had already imposed the Bill of Rights on the States.)
In short, Senator Poland may have had a mistaken understanding of the original meaning of the Privileges and Immunities Clause in Article IV. However, any reasonable person listening to Senator Poland’s comments in 1866 would have had every reason to believe that his views concerning Section 1 were entirely in accord with those previously expressed by Senator Howard and that Senator Poland believed that Section 1 would forbid States from depriving their citizens of their basic rights, including those embodied in the Bill of Rights.
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
The Fourteenth Amendment and Incorporation V
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