While Senator
Lyman Trumbull worked to enact the Freedmen’s Bureau and Civil
Rights Bills, other congressmen wanted to incorporate civil
rights for the freedmen explicitly into the U.S. Constitution,
rather than leave them to protection by federal legislation or
state governments. Many of the principles that later formed the
various sections of the Fourteenth Amendment were proposed
originally as separate constitutional amendments.
What became Section One of the Fourteenth
Amendment went through more changes before reaching its final
form, and subsequently had more impact on constitutional law,
than the other four sections of the Fourteenth Amendment. The
four clauses of Section One, respectively, (1) defined American
citizenship, (2) prohibited abridging the privileges and
immunities of citizens, (3) applied the due process clause of
the Fifth Amendment (part of the Bill of Rights) to the states,
and (4) guaranteed “the equal protection of the laws.”
On the first day of the 39th
Congress, December 4, 1865, Senator Charles Sumner of
Massachusetts, a leading Radical Republican and civil rights
advocate, introduced his own Reconstruction agenda consisting of
several resolutions, bills, and constitutional amendments. He
insisted that Congress should ensure that “all persons shall be
equal before the law, whether in the court-room or at the
ballot-box.” The Joint Committee on Reconstruction apparently
did not consider his proposals. On December 5, 1865,
Congressman Thaddeus Stevens, another prominent Radical
Republican, proposed a constitutional amendment declaring, “All
national and state laws shall be equally applicable
to every citizen, and no discrimination shall be made on
account of race and color.”
The next day, December 6, Congressman John
Bingham of Ohio, introduced a more comprehensive constitutional
amendment. Bingham did not agree with Senator Trumbull’s
contention that the enforcement clause of the Thirteenth
Amendment gave Congress the authority to legislate in the area
of civil rights. Therefore, the Ohio congressman sought to
confer the power explicitly on Congress through a constitutional
amendment, and, in the meantime, voted against the Civil Rights
Bill. In January and February 1866, the Joint Committee on
Reconstruction considered several versions of a similar
constitutional amendment, but it was Bingham’s proposal,
submitted to the committee on January 12, which laid the
foundation for what later became the vital Section One of
the Fourteenth Amendment. His suggested constitutional
amendment read:
The Congress shall have power to make all
laws necessary and proper to secure to all persons in every
State within this Union equal protection in their rights of
life, liberty and property.
After changes were proposed in
sub-committee and committee meetings, Bingham introduced on
February 3 a substitute, which was approved by the
Reconstruction Committee on February 10:
The Congress shall have power to make all
laws which shall be necessary and proper to secure to citizens
of each State all 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.
Reconstruction
Committee Chairman Fessenden
introduced the
measure into the Senate on February 13, and Bingham
introduced it into the House on February 26. Debate on the
Bingham amendment was tabled until April, by which time it had
been incorporated into the proposed Fourteenth Amendment. |