125. THE FOURTEENTH AMENDMENT.

The question recurred in a very perplexing form at about the time of the passage of the thirteenth amendment.' Several of the Southern States, while admitting the freedom of the former slaves, passed acts placing them on a legal inferiority, and in some cases established a system of obligatory contracts practically akin to slavery. Hence, a large number of amendments were proposed giving a definition of American citizenship and guaranteeing to all citizens the equal protection of the laws. At the same time attempts were made to introduce into the Constitution clauses in regard to the new apportionment of Representatives-made imperative by the implied abrogation of the three-fifths ratio-and others relative to the disability of all those who had taken part in the rebellion. Complicated with these questions of citizenship and suffrage, were the questions of the validity of the national debt, the compensation for slaves, or the payment of the rebel debt. Two joint resolutions proposing amendments fixing the basis of representation and repudiating the rebel debt passed the House, but had failed to receive the indorsement of the Senate.3

On the 30th of April, 1866, Mr. Stevens of Pennsylvania, after severely censuring the Senate for their failure to pass the amendments just referred to, reported from the Committee on Reconstruction a joint resolution proposing an amendment to the Constitution. The several propositions which had been referred to the committee had now been consolidated into this one article. After slight amendments of detail, it was adopted by both Houses of Congress," and later ratified by the requisite number of States, and was added to the Constitution as the famous fourteenth amendment. The other subjects included in this amendment will each be considered in its proper place."

126. CIVIL RIGHTS CLAUSES OF THE FOURTEENTH AMENDMENT.

The origin of the first section demands particular attention in this place. Several earlier attempts had already been made

1 See ante, par. 123.

2 Lalor's Cyclopedia of Political Science: Article on reconstruction.

3App., Nos. 1055, 1079.

4 Nos. 1135-1140.

5 Nos. 1158-1163, 1177, 1180-1182, 1183. Story, II, Chap. XLVII. For history of the Joint Committee on Reconstruction, see Foster, 1, pp. 227-236.

See ante, par. 22, (4), 121. Post, pars. 126, 128, 143, 144, 145.

to secure an amendment to the Constitution relative to the equality of the citizens before the law.

The first of these propositions, introduced in the House by Mr. Stevens of Pennsylvania, December 5, 1865, provided that "all national and State laws shall be equally applicable to every citizen, and no discrimination shall be made on account of race or color." 1 The next day Mr. Bingham of Ohio offered a resolution to amend the Constitution so as "to empower Congress to pass all necessary and proper laws to secure to all persons in every State of the Union equal protection in their rights, life, liberty, and property."2 Both of these resolutions were referred to the Committee on the Judiciary. Within a few days, two other amendments of similar purport were introduced. Senator Brown of Missouri submitted, February 1, 1866, a motion, which was passed, directing the Committee on Reconstruction to inquire into the expediency of amending the Constitution so as to declare with greater certainty the power of Congress to enforce and determine by appropriate legislation all the guaranties contained in that instrument, especially as to that which assures the citizens of each State the privileges and immunities of other States. Mr. Williams suggested an amendment empowering Congress to enforce "all obligations, prohibitions, or disabilities" imposed by the Constitution on the several States. A few days later, the Committee on Reconstruction reported in each branch of Congress a proposed amendment declaring that "the Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all the privileges and immunities of citizens in the several States; and to all persons in the several States equal protection in the rights of life, liberty, and property."

No important action was taken in either House upon the resolution. There seemed to be a common desire to await the final report of the committee. March 9, 1866, during the discussion in the Senate on the amendment passed by the House relative to the apportionment of Representatives, Senator Yates of Illinois moved an amendment thereto, declaring that "all citizens, without distinction of race, color, or previous condition of slavery, shall be protected in the full and equal

enjoyment and exercise of all their civil and political rights." It secured, however, only seven votes in its favor.2

The resolution reported to the House April 30, 1866, which became the basis of the fourteenth amendment, contained in the first section the provision that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens; nor deprive any person of life, liberty, or property without due process of law; nor deny to any person the equal protection of the laws."3 This amendment passed the House without change. It soon became evident that the Senate would not adopt the amendment in the form in which it passed the House. Several attempts were made to amend this first section, some of which were successful. Mr. Wade offered a substitute for the entire resolution, but in the first section he simply proposed to substitute for "citizens" the words "persons born in the United States or naturalized by the laws thereof."4

On May 30 Mr. Howard of Michigan, in behalf of the Senate members of the Joint Committee on Reconstruction, presented a series of resolutions which had been adopted by the Republican caucus as a substitute for the House amendment. The substitute was accepted. The first change thus introduced was to prefix these words to the first clause of the amendment: "All persons born in the United States and subject to the jurisdiction thereof are citizens of the United States and of the States wherein they reside." This supplied a serious omission in the original Constitution, for in that instrument there had been no definition of citizenship.

Mr. Doolittle of Wisconsin moved to insert in this clause the words “including Indians not taxed," but to all but ten Senators such a provision seemed superfluous. A few days later, Mr. Fessenden of Maine secured the insertion of the words

App. No. 1097.

2 Senator Stewart suggested a similar proposition (App., Nos. 1128, 1143a), while Senator Fessenden proposed an amendment prohibiting a State from making any law which shall abridge the privileges, etc. App., No. 1134.

3 App., No. 1135.

App., No. 1147.

App., No. 1158. A similar amendment was presented by Mr. Doolittle. App., No. 1175. The amendment of Mr. Stewart, which he intended to propose to H. Res. 127, also contained a definition of citizenship: "All persons born within the limits or under the jurisdiction of the United States, and all persons naturalized under its laws, are and shall be both citizens of the United States and citizens of the several States within which they reside," App., No. 1143a.

6 App., No. 1164.

"or naturalized" in this sentence.1 Mr. Yates of Illinois offered a resolution to add to the amendment the provision that "nothing in the foregoing sections shall abridge or in any wise affect the right, franchise, or privilege of any inhabitants of the United States," but it failed to be acted upon.2 Mr. Reverdy Johnson of Maryland made an unsuccessful attempt to strike out an important guaranty of this article, which declared that no State should "make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."3

Mr. Buckalew of Pennsylvania moved to amend by adding to the resolution a sixth section making provision that the amendment shall be submitted to the legislatures in the States, the most popular branch of which shall be chosen next after the passage of the amendment. Mr. Doolittle proposed that the amendment should be submitted to the States as five separate articles, to be acted upon separately; but this motion secured but eleven votes in its favor-the "Administration strength." Finally the consolidated amendment passed the Senate June 8 in the form in which it now appears in the Constitution by the vote of 33 yeas to 11 nays. On the 13th the House, by a single vote of 120 to 32, concurred in all the changes made in the Senate, and the fourteenth article was sent to the States for ratification."

127. FURTHER ENFORCEMENT OF CIVIL RIGHTS.

The fourteenth amendment was not declared in force until July 28, 1868, but during the year 1867 several additional amendments in regard to the enforcement of civil rights were proposed, but pending the action of the State legislatures upon the fourteenth amendment no further steps were taken by Congress. During the discussion of the fifteenth amendment, in 1869, several propositions were presented to prevent the right of a citizen of the United States to hold office from being denied or abridged "on account of race, color, or previous condition of servitude." The general subject came up again at the time of the Kuklux movement in the South, from 1872 to 1875. Congress passed an act in 1875 which was

1 App., No. 1183.

2 App., No. 1179.

3 App., No. 1188.

4 App., No. 1154. Post, par. 180.

5 App., No. 1184.

App., Nos. 1135-1140.

App., Nos. 1194b, 1197, 1202, 1209, 1213, 1215, 1216, 1218.

8 App., Nos. 1285, 1289a, 1289c, 1311. See post, 131.

intended to afford protection to all in the enjoyment of the rights guaranteed by the fourteenth amendment.'

When the question was brought before the Supreme Court in the Civil Rights Cases the act was held unconstitutional,2 and the court further announced that the power of Congress to enforce the fourteenth amendment by appropriate legislation, does not extend to legislation prescribing the rights of the parties themselves between each other, but only to the correction and prohibition of legislation and action on the part of the State. Owing to this decision, six resolutions to amend the Constitution, in order to protect the civil rights and secure the equality of citizens, were introduced in the first session of the Forty-eighth Congress, 1883-84.3

The first of these was presented by Senator Wilson of Iowa, December 4, 1883, the second day of the session. It proposed to add to the Constitution, as article sixteen, the following: "Congress shall have power, by appropriate legislation, to protect citizens of the United States in the exercise and enjoyment of their rights, privileges, and immunities, and to assure to them the equal protection of the laws." Two of the other propositions were offered by Southern members, Mr. Mackey of South Carolina and Mr. O'Hara of North Carolina. No further attempt has since been made to amend the Constitution relative to this subject.

128. DISABILITY OF PARTICIPANTS IN THE REBELLION.

While Congress and the States were thus cooperating to secure civil and legal equality to the former slaves, they were also providing for a withdrawal of certain rights from those who had participated as leaders in the movement of secession. The failure of the trial of Jefferson Davis for treason put an end to any plans of legal punishment, and the wide-reaching pardons and amnesties of President Johnson seemed to restore the former belligerents to their previous privileges; but there was a popular demand that these men

1 Statutes of the United States, Forty-third Congress, second session, chapter 114, pp.

335-337.

2109 U. S., 3.

App., Nos. 1575, 1588, 1596, 1599, 1611, 1612.

4 App., No. 1575. An amendment proposed in 1880, in regard to the election and the free public schools, prohibited separation or distinction "on account of race, color, or social condition." App., No. 1514. See post, par. 172.

The investigation of Mr. H. F. Blake, a member in the Seminary of American History, Harvard University, 1890-91, on Treason Trials, throws much light on this subject.