It is not clear that John Bingham wrote the "privileges and immunities"
clause of the Fourteenth Amendment. Bingham did not write the
citizenship-granting sentence of that first section of the Fourteenth
Amendment.
Senator Howard, authored the citizenship-granting (first) sentence:
"One conspicuous departure from the language of the Civil Rights Act
[of 1866] was the elimination of the phrase "Indians not taxed."
Senator Jacob Howard of Ohio, the author of the Citizenship Clause,
defended the new language against the charge that it would make
Indians citizens of the United States. Howard assured skeptics that
"Indians born within the limits of the United States, and who
maintain their tribal relations, are not, in the sense of this
amendment, born subject to the jurisdiction of the United States."
Senator Lyman Trumbull, Chairman of the Senate Judiciary Committee,
supported Howard, contending that "subject to the jurisdiction
thereof" meant "not owing allegiance to anybody else . . . subject
to the complete jurisdiction of the United States." Indians, he
concluded, were not "subject to the jurisdiction" of the United
States because they owed allegiance--even if only partial
allegiance--to their tribes. Thus, two requirements were set for
United States citizenship: born or naturalized in the United States
and subject to its jurisdiction."
http://www.heritage.org/Research/GovernmentReform/wm925.cfm
John Bingham drafted the Law Clauses (Due Process and Equal Protection,
of Law) of the Fourteenth Amendment, for the protection of Loyal whites
living in or migrating to the Southern states, and into the future
Western states. Bingham's emphasis was always on providing
Congressional protection to loyal White citizens who had suffered
oppression, or who would suffer oppression, by the unrestrained exercise
of tyrannical powers exerted by the States. Another member of the Joint
Committee on Reconstruction, Abolitionist Charles Sumner,
proposed provisions purporting to restrain (only) discrimination on
account of "race, color, or previous condition of servitude". Bingham
and others rejected such proposals as inadequate. [As an aside, the
debates in Congress clearly indicate that that Congress did not, by
proposing the 14th Amendment, intend to prohibit all class legislation
(i.e., discrimination on the basis of race or gender.]
By the end of the Civil War, the need for the Whole People to have a way
to restrain tyranny of the states was painfully clear, as explained
in the speech of John A. Bingham (the draftsman of the Law Clauses of
Section 1 of the Fourteenth Amendment) introducing the Fourteenth
Amendment to Congress:
*'As slaves were not protected by the Constitution, there might be
some color of excuse for the slave States in their disregard for the
requirement of the bill of rights as to slaves in refusing them
protection in life or property. * * * 'But, sir, there never was
even colorable excuse, much less apology, for any man North or South
claiming that any State Legislature or State court, or State
Executive, has any right to deny protection to any free citizen of
the United States within their limits in the rights of life,
liberty, and property. Gentlemen who oppose this amendment oppose
the grant of _power to enforce the bill of rights_. Gentlemen who
oppose this amendment simply declare to these rebel States, 'Go on
with your confiscation statutes, your statutes of banishment, your
statutes of unjust imprisonment, your statutes of murder and death
against men because of their loyalty to the Constitution and
Government of the United States." Cong.Globe.* *at 1089-1091.*
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=332&invol=46
<http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=332&invol=46>
Among the recurring abuses of the Bill of Rights that occurred in the
Southern states before the First American Civil War was the abuse and
violence (and denial of Equal Protection of the Law), directed against
Christian Preachers who dared to undertake missionary expeditions into
the South (e.g., preaching the moral faults of slavery).
The most compelling basis stated by President Johnson for his Veto of
the Civil Rights Act of 1866 was that it extended Congressional
protection to negroes far beyond any protection ever extended to secure
the rights of the loyal White Citizens of the United States.
Those who supported the Civil Rights Act of 1866, (and even one
Justice of the Supreme Court, defended it by arguing that, despite its
language, it did indeed protect White Citizens equally as Black
Citizens, from abuse in the States. They argued:
"The President's objection to the bill as special legislation is a
manifest misapprehension. The bill is universal in its application.
If the rights of any citizen of whatever birth or color are invaded
anywhere in the country the bill provides the remedy, without any
exclusion or exception whatever." Harper's Weekly, April 14, 1866
http://www.impeach-andrewjohnson.com/05AJFirstVetoes/iiia-10.htm
The debate as to the effectiveness of the language of the Civil Rights
Act of 1866 to protect white citizens from abuse in the several states
continues to this day.
Even the abolitionists realized that a proposed Constitutional
Amendment even seeming to make the same mistake (seemingly protecting
only negroes, and neglecting the protection of whites) would have zero
chance of ratification.
Thus, there is no mention or limitation anywhere in the Fourteenth
Amendment with respect to "race" or "color" or "previous condition of
servitude." The language of the Fourteenth Amendment refers exclusively
to the historical birthrights of white Americans: Equal Protection of
Law, Due Process of Law, and "privileges and immunities" of
citizenship. These terminologies were direct and unambiguous references
to the birthrights of Anglo-Americans held and esteemed before and since
the Revolutionary War. The language of the Fourteenth Amendment is
entirely indifferent to the race of persons and of citizens, and would
have been equally effective and necessary even if there had never been a
single negro born or set foot upon American soil.
The first efforts of the Framers of the Constitution to force the States
to respect human rights and the rights of all (e.g., white) citizens are
those provisions of the US Constitution which begin: "No State
Shall..." The next effort of the Framers of the Constitution was to
force the States to obey any among the Bill of Rights, as described in
the essay titled:
"Ironically the First Fourteenth Amendment"
http://members.tripod.com/~candst/14thamend.htm
That essay documents that the Framers of the Bill of Rights, (e.g.,
James Madison) had also proposed an "Article the Fourteenth", that
"called for selective incorporation against the states some of the other
Articles" of amendment (i.e., some of the Bill of Rights) in these words:
"*_No state shall_* infringe the equal rights of conscience, nor
the freedom of speech or of the press, nor of the right of trial
by jury in criminal cases."
The essay quotes from records of the debate on this first proposed 14th
Amendment that:
"Mr. MADISON conceives this to be the most valuable amendment in the
whole list. *_If there were any reason to restrain the government of
the United States from infringing upon these essential rights, it
was equally necessary that they should be secured against the state
governments._* He thought that if they provided against one, it was
as necessary to provide against the other, and it was satisfied that
it would be equally grateful to the people."
http://members.tripod.com/~candst/14thamend.htm
"It is ironic that this particular Article was numbered fourteen and
that it called for selective incorporation of other amendments in
the "Bill of Rights package" against the states. *_It is interesting
that it was passed by "the people's" representatives, but defeated
by the state's representatives_*. It is very ironic that another
Article also numbered fourteen was passed some 79 or so years later
and that it would, in time be used to selectively incorporate other
Articles of the "Bill of Rights package" against the states."
http://members.tripod.com/~candst/14thamend.htm
79 years later the People of the United States attempted to correct the
earlier omission in the Constitution and to obviate any further argument
as to the effect of the Bill of Rights as a limit on the tyrannical
power of the States, by prosecuting a Civil War against the tyrannical
States and thereby compelled all the States to Ratify the Fourteenth
Amendment, which echoed the same unambiguous "No State Shall..." language:
"_*No state shall*_ make or enforce any law which shall *_abridge
the privileges or immunities of citizens of the United States [this
language was specifically intended to include all the rights secured
in the Bill of Rights]_*; 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 language of the Fourteenth Amendment, "No state shall make or
enforce any law which shall abridge the privileges or immunities of
citizens of the United States" was intended and expected by its
draftsman and the Congress to restrain the states from violating the
restrictions in the Bill of Rights, and more.
http://www.constitution.org/col/intent_14th.htm
The concept that "privileges and immunities of citizens of the United
States" included the rights recited in the Bill of Rights, a concept
that the Framers of the Fourteenth Amendment adopted, was derived from
the opinion in the notorious Dred Scott Decision, wherein it was
acknowledged that free White people born or naturalized as citizens of
the United States, were also citizens of the State wherein they reside,
and vice versa.
Reported: "Since the adoption of the Constitution of the United
States, no State can by any subsequent law make a foreigner or any
other description of persons citizens of the United States, nor
entitle them to the rights and privileges secured to citizens by
that instrument."
Chief Justice Taney wrote:
"The words 'people of the United States' and 'citizens' are
synonymous terms, and mean the same thing. They both describe
the political body who, according to our republican
institutions, form the sovereignty, and who hold the power and
conduct the Government through their representatives. They are
what we familiarly call the 'sovereign people,' and every
citizen is one of this people, and a constituent member of this
sovereignty. The question before us is, whether the class of
persons described in the plea in abatement [the
descendants slaves in any state] compose a portion of this
people, and are constituent members of this sovereignty? We
think they are not, and that they are not included, and were not
intended to be included, under the word 'citizens' in the
Constitution, and _*can therefore claim none of the rights and
privileges which that instrument provides for and secures to
citizens of the United States*_. On the contrary, they were at
that time considered as a subordinate and inferior class of
beings, who had been subjugated by the dominant race, and,
whether emancipated or not, yet remained subject to their
authority, and had no rights or privileges but such as those who
held the power and the Government might choose to grant them. It
is not the province of the court to decide upon the justice or
injustice, the policy or impolicy, of these laws."
"[A] person may be entitled to vote by the law of the State, who
is not a citizen even of the State itself. And in some of the
States of the Union foreigners not naturalized are allowed to
vote. And the State may give the right to free negroes and
mulattoes, but that does not make them citizens of the State,
and still less 'of the United States'. And the provision in the
Constitution giving privileges and immunities in other States,
does not apply to them.
"Neither does it apply to a person who, being the citizen of a
State, migrates to another State. For then _*he becomes subject
to the laws of the State in which he lives*_, and he is no
longer a citizen of the State from which he removed. And _*the
State in which he resides may then, unquestionably, determine
his status*_ or condition, _*and place him among the class of
persons who are not recognized as citizens*_, but belong to an
inferior and subject race; and may deny him the privileges and
immunities enjoyed by its citizens."
"For example, no one, we presume, will contend that Congress can
make any law in a Territory respecting the establishment of
religion, or the free exercise thereof, or abridging the freedom
of speech or of the press, or the right of the people of the
Territory peaceably to assemble, and to petition the Government
for the redress of grievances. Nor can Congress deny to the
people the right to keep and bear arms, nor the right to trial
by jury, nor compel any one to be a witness against himself in a
criminal proceeding. These powers, and others, in relation to
rights of person, which it is not necessary here to enumerate,
are, in express and positive terms, denied to the General
Government; and the rights of private property have been guarded
with equal care. Thus the rights of property are united with the
rights of person, and placed on the same ground by the fifth
amendment to the Constitution, which provides that no person
shall be deprived of life, liberty, and property, without due
process of law."
"More especially, it cannot be believed that the large
slaveholding States regarded them as included in the word
'citizens', or would have consented to a Constitution which
might compel them to receive them in that character from another
State. For if they were so received, and entitled to the
privileges and immunities of citizens, it would exempt them from
the operation of the special laws and from the police
regulations which they considered to be necessary for their own
safety. It would give to persons of the negro race, who were
recognized as citizens in any one State of the Union, the right
to enter every other State whenever they pleased, singly or in
companies, without pass or passport, and without obstruction, to
sojourn there as long as they pleased, to go where they pleased
at every hour of the day or night without molestation, unless
they committed some violation of law for which a white man would
be punished; and it would give them *_the full liberty of
speech_* in public and in private upon all subjects upon which
its own citizens might speak; _*to hold public meetings*_ upon
political affairs, and to *_keep and carry arms wherever they
went_*."
"*_if persons of the African race are citizens of a State, and
of the United States, they would be entitled to all of these
privileges and immunities in every State, and the State could
not restrict them_*; for they would hold these privileges and
immunities under the paramount authority of the Federal
Government, and its courts would be bound to maintain and
enforce them, the Constitution and laws of the State to the
contrary notwithstanding."
http://www.tourolaw.edu/patch/Scott
_Thus, the Framers of the Fourteenth Amendment supposed that the
"privileges and immunities of citizens of the United States" included
the rights set forth in the Bill of Rights_; including especially those
explicitly recited by the Supreme Court in Dred Scott: Freedom of
Speech [1st Amendment], The right of the People to "keep and carry arms"
[2nd Amendment], and the Right to Peaceably Assemble [1st Amendment].
It was this understanding of the "Privileges and Immunities" of the
"citizens of the United States" language in the 14th Amendment that the
draftsmen of the Fourteenth Amendment reported to the Congress that
proposed the present Fourteenth Amendment. You must READ the Opinion
and Appendix of Justice Black in Adamson v. California, 332 U.S. 46
(1947). http://guncite.com/court/fed/sc/332us92.html
As Justice Black later noted, the five men on the majority of
the Supreme Court who opined that the "privileges and immunities" clause
of the Fourteenth Amendment did not change the Law at all, implying that
Federal Court enforcement of the Bill of Rights against the States was
(still) not among the "privileges and immunities of citizens of the
United States" did not read nor witness the debates in Congress that
produced the amendment. The Dissenters however, did explicitly argue
that the "that the Bill of Rights was applicable to the States"
http://guncite.com/court/fed/sc/332us79.html even though the facts of
the case did not directly raise that issue.
As Justice Black explained:
"In 1872, four years after the Amendment was adopted, the
/Slaughter-House/ cases came to this Court. 16 Wall. 36. The Court
was not presented in that case with the evidence which showed that
the special sponsors of the Amendment in the House and Senate had
expressly explained one of its principal purposes to be to change
the Constitution as construed in /Barron v. Baltimore, supra/, and
make the Bill of Rights applicable to the states.[75.6]
<http://www.guncite.com/court/fed/sc/332us68.html#fn75.6> Nor was
there reason to do so. For the state law under consideration in the
/Slaughter-House/ cases was only challenged as one which authorized
a monopoly, and the brief for the challenger properly conceded that
there was "no direct constitutional provision against a
monopoly."[76.7]
<http://www.guncite.com/court/fed/sc/332us68.html#fn76.7> The
argument did not invoke any specific provision of the Bill of
Rights, but urged that the state monopoly statute violated "the
natural right of a person" to do business and engage in his trade or
vocation. ... The Court did not meet the question of whether the
safeguards of the Bill of Rights were protected against state
invasion by the Fourteenth Amendment."
http://www.guncite.com/court/fed/sc/332us68.html
Nevertheless, the Senators who framed and proposed the Fourteenth
Amendment understood the Slaughter-house Cases decision as rendering the
"privileges and immunities" clause of the Fourteenth Amendment as a
"nullity", (and so it remains today, a nullity, effecting no change to
the law).
The Senators thus went forth and advocated further for securing the Bill
of Rights of Americans as against the states, a quest started by Madison
himself. One example of that effort was the Blaine Amendment.
The "Blaine Amendment" was apparently drafted and proposed in 1875,
AFTER (and in response to) the Supreme Court's shocking /obiter dicta/
in the 1873 Slaughter-House cases opinion:
"The term Blaine Amendment refers to amendments or provisions that
exist in most state constitutions in the United States that forbid
direct government aid to educational institutions that have any
religious affiliation. The amendments are named after James G.
Blaine (1830-1893), a former Speaker of the United States House of
Representatives, who led a campaign to have the provision added to
the United States Constitution. *_In 1875_*, the proposed amendment
passed by a vote of 180 to 7 in the House of Representatives, but
failed to achieve the necessary two-thirds majority by four votes in
the United States Senate:
"No State shall make any law respecting an establishment of
religion, or prohibiting the free exercise thereof; and no money
raised by taxation in any State for the support of public schools,
or derived from any public fund therefor, nor any public lands
devoted thereto, shall ever be under the control of any religious
sect; nor shall any money so raised or lands so devoted be divided
between religious sects or denominations."
http://en.wikipedia.org/wiki/Blaine_Amendment
This chronology tends to confirm Justice Black's conclusion that an
"original purpose" of the Fourteenth Amendment was to empower Congress
and the Federal Courts to enforce the Bill of Rights as against the States.
Mark Ferran, BSEE /scl/ JD /mcl/
www.billstclair.com/ferran <http://www.billstclair.com/ferran>
P.S. Concerning the contention that the Southern States were
unlawfully coerced into ratifying the Fourteenth Amendment as a
condition for their re-admission into the Union that they seceded from:
The Law of Nations governing the status of conquered States, supports
the Victor's right to dictate the terms of any Peace Treaty, such as was
the Fourteenth Amendment. The Contemporary view of the status of the
defeated southern States in 1866 was as follows:
"From the time these Confederate States thus withdrew from their
representation in Congress and levied war against the United States,
the great mass of their people became and were insurgents and
traitors, and all of them assumed and occupied the political, legal,
and practical relation of enemies of the United States. They
persisted in their hostility until they were utterly defeated. The
burden now rests upon them, before claiming to be reinstated in
their power, conditions to show that they are qualified to resume
Federal relations. In order to do this they must prove that they
_*have re-established*_ with the consent of the peoples *_republican
forms of government_*, in harmony with the Constitution and laws of
the United States, that all hostile purposes have ceased, and
_*should give adequate guarantees against future treason and
rebellion*_, which will prove satisfactory to the Government against
which they rebelled, and by whose arms they were subdued. They have
forfeited all civil and political rights under the Federal
Constitution, and can only be restored thereto by the permission and
authority of that constitutional power against which they rebelled,
and by which they were subdued."
http://www.impeach-andrewjohnson.com/05AJFirstVetoes/iiia-14.htm
The Framers knew that Equality Before the Law was "a principal of
Republicanism" and it was essential to compel the states to respect that
American Birthright. They also knew that:
"Before this amendment and the thirteenth amendment were adopted,
the States had supreme authority over all these matters, and the
National government, except in a few particulars, could afford no
protection to the individual against arbitrary and oppressive
legislation. After the civil war had closed, the same authority was
asserted, and, in the States recently in insurrection, was exercised
to the oppression of the freedmen; _*/and towards citizens of the
North seeking residence there/*_, or citizens resident there who had
_*maintained their loyalty during the war*_ for nationality, a
feeling of jealousy and dislike existed which could not fail soon to
fined expression in discriminating and hostile legislation. It was
to prevent the possibility of such legislation in future, and its
enforcement where already adopted, that the fourteenth amendment was
directed. It grew out of the feeling that a union which had been
maintained by such costly sacrifices was, after all, worthless if a
citizen could not be protected in all his fundamental rights
everywhere- North and South, East and West-throughout the limits of
the Republic. The amendment was not, as held in the opinion of the
majority, primarily intended to confer citizenship on the negro
race. It had a much broader purpose; it was intended to justify
legislation, extending the protection of the National government
over the common rights of all citizens of the United States, and
thus obviate objections to the legislation adopted for the
protection of the emancipated race. It was intended to make it
possible for all persons, which necessarily included those of every
race and color, to live in peace and security wherever the
jurisdiction of the nation reached. It, therefore, recognized, if it
did not create, a National citizenship, and made all persons
citizens except those who preferred to remain under the protection
of a foreign government; and declared that their privileges and
immunities, which embrace the fundamental rights belonging to
citizens of all free governments, should not be abridged by any
State. This National citizenship is primary, and not secondary. It
clothes its possessor, or would do so if not shorn of its efficiency
by construction, with the right, when his privileges and immunities
are invaded by partial and discriminating legislation, to appeal
from his State to his Nation, and gives him the assurance that, for
his protection, he can invoke the whole power of the government.
"This case was considered by the court in connection with the
Slaughter-House Cases, although its decision has been so long
delayed. I have felt, therefore, called upon to point out the
distinction between this case and those cases, and as there has been
some apparent misapprehension of the views of the dissenting judges,
to restate the grounds of their dissent."
BARTEMEYER v. STATE OF IOWA, 85 U.S. 129 (1873), opinion of Mr. Justice
BRADLEY, concurring.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=85&invol=129
<http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=85&invol=129>
----- Original Message -----
*From:* Jon Roland <mailto:[EMAIL PROTECTED]>
*To:* [EMAIL PROTECTED] <mailto:[EMAIL PROTECTED]>
*Sent:* Tuesday, February 07, 2006 8:45 AM
*Subject:* [Lex_Rex] Re: [AMOJ_MAIN] Fourteenth Amendment &
Citizenship explained, by Mark Ferran www.billstclair.com/ferran
<http://www.billstclair.com/ferran>
Mr. Johnson asks a good question, one that deserves more attention
by legal
historians, so I am copying this to other lists for your consideration.
The principal author of the 14th was Rep. John Bingham of Ohio, and
he is the main
source of the speeches and writings that explain the 14th as
extending the
jurisdiction of the federal courts to all the rights protected by
the Constitution
as amended by the Bill of Rights.
There was, however, a problem with the way the 14th was worded, and
many felt,
especially after _ the Slaughterhouse Cases 83 U.S. 36 (1873), that
the wording did not make it clear which immunities (rights) were
included, especially given the way the First Amendment was worded.
Thus the Blaine Amendment, to provide that clarification.
M.A. Johnson wrote:
>>As explained by Jon Roland, of the Constitution Society, the
>>language of the Fourteenth Amendment was "intended by the framers of
>>the Fourteenth to extend the jurisdiction and protection of federal
>>courts to all rights recognized by the Constitution and Bill of
>>Rights against actions by state government."
>>http://www.constitution.org/col/intent_14th.htm
>
> if what Mr. Roland
> claims were true, why the longstanding effort (by many of the
> same Persons that saddled us with the 14th) to provide the
> Blaine Amendment, for instance?
>
> [Proposed by Senator Frelinghuysen, former Attorney General
> of New Jersey and a leader of the Congress which had passed
> the Fourteenth Amendment.]
>
> The [Blaine Amendment] very properly extends the
> prohibition of the first amendment of the Constitution
> to the States. Thus the [Blaine Amendment] prohibits
> the States, for the first time, from the establishment
> of religion, from prohibiting its free exercise, and
> from making any religious test a qualification to office.
>
> Regard$,
> --MJ
>
> The Constitution wisely forbids Congress to
> make any law respecting the establishment of
> religion, but it is idle to hope that the
> Nation can be protected against the influence
> of secret sectarianism while each State is
> exposed to its domination. We, therefore,
> recommend that the Constitution be so amended
> as to lay the same prohibition upon the
> Legislature of each State, and to forbid the
> appropriation of public funds to the support
> of sectarian schools. -- Republican Platform of 1880
[Non-text portions of this message have been removed]
ForumWebSiteAt http://groups.yahoo.com/group/Libertarian
Yahoo! Groups Links
<*> To visit your group on the web, go to:
http://groups.yahoo.com/group/Libertarian/
<*> To unsubscribe from this group, send an email to:
[EMAIL PROTECTED]
<*> Your use of Yahoo! Groups is subject to:
http://docs.yahoo.com/info/terms/
