Berks County Bar Association The Berks Barrister Spring 2018 - 9

w w w.BERKSBAR.org

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

The Roots

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 the fourteenth
amendment

of law; nor deny to any person within its jurisdiction the equal protection of
the laws.

By Louis M. Shucker, Esquire
"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 the
jurisdiction the equal protection of the laws."
Barrister readers will immediately recognize this quote as
Section 1 of the Fourteenth Amendment to the Constitution.
Although brief, it is arguably the most important sentence in the
Constitution. As noted in American Founding Son: John Bingham
and the Invention of the Fourteenth Amendment, (Gerald N.
Magliocca, New York University Press 2013):
"It is the language that the Supreme Court used to
desegregate public schools, end discrimination against women,
establish equal voting rights, and the right to sexual privacy.
The first section of the Fourteenth Amendment is also the text
that extends most of the Bill of Rights to the actions of state
governments, since the Founding Fathers believed that the
first eight constitutional amendments - including the freedom
of speech, the right to bear arms, and the right to a jury trial -
applied to only the federal government."
So who is John Bingham? He was first elected to Congress
from a rural district in Ohio. As his biographer suggests,
"Bingham's invisibility is even more astounding given that he
was at the center of almost every dramatic event that shook the
Capitol in the 1860s. Not long after he entered the House of
Representatives in 1855, he became one of the strongest antislavery voices in the Republican party. In 1947, Justice Hugo
L. Black remarked that, "Congressman Bingham may, without
extravagance, be called the Madison of the first section of the
Fourteenth Amendment." Adamson v. California, 332 U.S. 46,74
(1947, Black, J. dissenting).

The problems confronting the federal government following
Lee's surrender to Grant at Appomattox Courthouse were
daunting. Some were connected to the war itself but others
focused on the implementation of emancipation. Should slave
owners be compensated for the loss of their property? How
should national citizenship be defined? Would African-American
men be permitted to vote? However, the most difficult question
involved the conditions to be imposed on the seceded states was
the price of readmission to the Union.
President Johnson and Congress agreed that the southern
states could not just say "my bad" and return to the Union as
though the war never happened. However, Johnson argued that
the South must only ratify the 13th Amendment, swear loyalty to
the United States and repudiate Confederate debts, but that they
could treat the former slaves as they wished, and that Congress
had no right to interfere with the internal affairs of sovereign
states.
In contrast, most Republicans felt that the South should do
more to protect the freed slaves. As a result, the President and
Congress were on a collision course. The resulting fight between
the Republican Congress led to Johnson's impeachment and near
conviction, the establishment of congressional Reconstruction that
placed the southern states under military rule and the drafting of
the Fourteenth Amendment, which the former rebel states had to
ratify as a condition for reentry into the Union.
Bingham strongly believed that the South should not
be restored to its previous position, except upon conditions
guaranteeing security for the future. Chief among those
guarantees was that every "natural born citizen of the United
States was entitled to all the privileges and immunities of citizens."
Continued on page 10

Spring 2018 | 9

http://berksbar.org/

Berks County Bar Association The Berks Barrister Spring 2018

Table of Contents for the Digital Edition of Berks County Bar Association The Berks Barrister Spring 2018