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3. Herman V. Ames, The Proposed Amendments to the Constitution of the United States During the First Century of Its History, presented in the 54th Congress, 2nd Session, 1897, H. Doc. 353.
4. Congressional Globe, 37th Congress, 2nd Session, 1862, 132.1: 108.
5. Ibid., 32.3: 2871.
6. 12 Stat. 1267, First Basler, Collected Works of Lincoln, 433–436.
7. New York World, 24 September, 1862; John Jay to S.P. Chase, Chase Papers, 27 September, 1862.
8. U.S. Congress, House, Journal 37th Congress, 3rd Session, 1 December, 1862, 1228.
9. Samuel May Jr. to Garrison, Garrison Papers, 28 December, 1863; Liberator, 12 January, 1864; Susan B. Anthony to Charles Sumner, Sumner Papers, 1 March, 1864.
10. Ames, 214.
11. Congressional Globe, 38th Congress, 1st Session, 1863-1864, 34.1: 145.
12. Ibid., 521-522, 533.
13. Ibid., 314.
14. Ibid., 921, 1370, 1424.
15. Ibid., 1425.
18. Ibid., 1444-1477.
19. Ibid., 2995.
20. Ibid., 1490.
21. Ibid., 2995.
22. Virginia Commission on Constitutional Government, The Constitution of the U.S., (Richmond), 28.
TEXT OF AMENDMENT
SECTION 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.
SECTION 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
SECTION 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by vote of two-thirds of each House, remove such disability
SECTION 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
SECTION 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
The Fourteenth Amendment, which has produced more litigation and court interpretation than any other part of the Constitution, was enacted originally to protect the freed slaves from abrogations of their rights by the Southern States. Since then the Amendment has, through judicial interpretation, evolved into a protection against State infringement of nearly all the personal liberties and rights guaranteed in the Federal Bill of Rights.
When the Congress met for the first time in December of 1865, it faced several unprecedented circumstances: the Confederacy had recently surrendered, President Lincoln had been assassinated, and Andrew Johnson had taken over the office of President and had moved to begin the Reconstruction of the South. These conditions contributed, either directly or indirectly, to the eventual framing of the Fourteenth Amendment.
When the 39th Congress convened in 1866, it was dominated by a strong coalition of pro-civil rights and anti-Confederate Congressmen. This coalition, termed the "radical" Republicans, differed on almost every point of President Johnson's Reconstruction program. They felt that Johnson's plan did not provide for adequate protection against State infringements of the former slaves' civil rights. In addition, they protested that the Johnson plan was not severe enough in reprimanding former Confederates. Finally, the “Radicals" feared that the President's plan would allow the Southern States to regain their congressional seats too quickly, enabling the former Confederates to block their own plan for Reconstruction.
Ultimately, the "radicals" turned to amending the Constitution as a means of implementing their Reconstruction program without fear of veto by the President or opposition by former Confederate States. Initially, however, their efforts did not involve the amendment process. For example, on March 13, 1866, Congress passed the Civil Rights Bill (S. 61, 39th Cong.).1 The bill ignored the Supreme Court's Dred Scott decision of 1857 and granted citizenship to all native-born Americans, with the exception of non-taxed Indians.2 It also decreed that all citizens "of every race and color" were entitled to certain basic civil rights. On April 9, Congress voted to override President Johnson's veto of the Civil Rights Bill.3 As a consequence of ths action, the power to reconstruct the South was taken from the hands of the President.
On July 3, 1866, the Freedmen's Bureau Bill (H.R. 613, 39th Cong.), also originally vetoed by President Johnson, was signed into law. The bill extended the life of the Freedmen's Bureau. The Bureau had been created in 1865 to give relief to the newly freed slaves, and included the authorization of military protection of their civil rights. President Johnson had vetoed the bill, believing that the provision for military trials of civil rights violators was a violation of the Fifth Amendment.5
The constitutionality of both the Freedmen's Bill and the Civil Rights Bill was questioned by many of the Nation's leaders. Many concluded that an amendment to the Constitution would be necessary to guarantee civil rights to all Americans.
In early December of 1865, a Joint Committee on Reconstruction was established in Congress. Its purpose was to "inquire into the condition of the States which formed the so-called Confederate States of America."6 The Committee was composed of nine Representatives and six Senators, several of whom were leaders of the "Radical Republicans." On April 30, 1866, the Committee reported out H.J. Res. 127, a comprehensive constitutional amendment composed of modified versions of several previously proposed amendments. One such proposal had been introduced in the House by Representative Thaddeus Stevens of Pennsylvania on December 5, 1865. It stated 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."9 On December 6, John Bingham of Ohio introduced H.J. Res 63.10 Both of these resolutions were referred to
the Committee on the Judiciary, but received consideration in the Joint Committee on Reconstruction.
A few days later, the Reconstruction Committee reported out Mr. Bingham's resolution in both Houses of Congress. The proposed amendment read:
The Congress shall have power to make all laws which shall be necessary and proper to secure to the 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.11
In both the House and the Senate, there seemed to be a common desire to await the final report of the Committee. As a result, no immediate action on H.J. Res. 63 in either House of Congress transpired. When the final report was issued, the phraseology of Mr. Bingham's Resolution had been changed and incorporated into the Reconstruction Committee's Resolution, H.J. Res. 127. As reported, it read:
SEC. 1. 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.
SEC. 2. Representatives shall be apportioned among the several States which may be included within this Union, according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But whenever, in any State, the elective franchise shall be denied to any portion of its male citizen not less than twenty-one years of age, or in any way abridged except for participation in rebellion or other crime, the basis of representation in such State shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens not less than twenty-one years of age.
SEC. 3. Until the 4th day of July, in the year 1870, all persons who voluntarily adhered to the late insurrection, giving it aid and comfort, shall be excluded from the right to vote for Representatives in Congress, and for electors for President and Vice President of the United States.
SEC. 4. Neither the United States nor any State shall assume or pay any debt or obligation already incurred, or which may hereafter be incurred, in aid of insurrection or of war against the United States, or any claim for compensation for loss of involuntary service or labor.
SEC. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
The Resolution was debated in the House on May 7-10; it passed without amendment on May 10 by a vote of 128 to 37, 19 not voting.
In the Senate, H.J. Res. 127 was initially referred to the Committee of the Whole where it received consideration on May 23, 24, 2931, and June 4-8, 1866. The Committee amended all but the fifth section of the Resolution. To the first, section, the following sentence was added:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
The second section was not substantively altered but was rewritten in more precise and detailed language. The third section was originally designed to punish participants in the Conference rebellion by disfranchising them for a period of 4 years. The Senate rejected this proposition in favor of a more narrowly drawn provision applicable only to former public officials, limiting their right to hold office. Finally, the thrust of the original fourth section, prohibiting claims for emancipated slaves or debts incurred in the aid of the rebellion, was retained but rephrashed by the Senate. In ad
dition, a provision was added to clarify that the fourth section did not apply to the public debt of the United States.
On June 8, 1866, the Resolution, as amended by the Committee of the Whole, passed the Senate by a vote of 33 to 5. It was then sent back to the House, where it passed without further amendment on June 13, 120 to 32, 32 not voting. Three days, later, on June 18, both Houses passed a concurrent resolution requesting the President to submit the Fourteenth Amendment to the governors of each State for ratification.
Twenty-eight States were needed for final ratification of the Fourteenth Amendment. After just 1 year, 24 States had ratified. The majority of these 24 were Northern States, while nearly all the Southern States had voted to reject the Amendment. On March 2, 1867, Congress passed the Military Reconstruction Act (H.R. 1143, 39th Cong.) 12 which, among other provisions, outlined a plan whereby those States that had seceded from the Union could secure readmission to Congress and escape military rule. Among the requirements for readmission was the ratification of the Fourteenth Amendment. Consequently, several of the Southern States soon ratified the Amendment.
By this time, New Jersey and Ohio had elected new legislatures and had rescinded their ratifications. Nevertheless, on July 20, 1863, Secretary of State William H. Seward issued a proclamation that the Fourteenth Amendment was officially part of the Constitution, despite the withdrawals of New Jersey and Ohio.13 Again on July 28, 1868, Secretary Seward issued an unconditional certificate in which he recapitulated the circumstances and dates of ratification, rejection, or any other action taken by the various States on the Fourteenth Amendment. He included the States of Alabama and Georgia, which had most recently ratified.
The 28 requisite State ratifications, as they appeared on the Proclamation of July 20, 1868, were:
Jun. 30, 1866.
Jul. 6, 1866.
Jul. 19, 1866.
New Jersey (resolution to "rescind" adopted Feb. 19/20, 1868, and Sep. 11, 1866. Mar. 5/24, 1868, over Governor's "veto").
Oregon (resolution to "rescind" adopted Oct. 6/15, 1868).
Sep. 19, 1866.
Feb. 7, 1867.
Jun. 15, 1867.