Berks County Bar Association The Berks Barrister Spring 2018 - 10

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The Roots of the Fourteenth Amendment

Continued from page 9

In December 1865, the senators and representatives returned to
Washington for the most important Congress since 1789 to take up the
questions raised by the war and its aftermath. At the outset of the Congressional
session, Thaddeus Stevens dramatically refused to recognize the representatives
elected by the former Confederate states.
Steven's refusal was an act of both principle and political hardball for it
allowed Republicans to maintain a powerful majority which might be necessary
to overcome vetoes of legislation or to pass a constitutional amendment.
Bingham promptly introduced his own amendment which would empower
Congress to pass laws to secure to all persons in every State the equal protection
of the laws as well as their life, liberty and property.
In January 1866, Bingham offered his first major address on the floor of
Congress, repudiating any argument that the government was only for white
men and asserting that, in the past, government had failed to ensure equal and
exact justice to all men. His solution to this deficit of freedom was to offer a
constitutional amendment which would give Congress and the federal courts
the authority to enforce fundamental rights.
Bingham was unable to convince the House for the need to amend the
Constitution. The New York Times wrote on March 1, 1866 that this failure
meant the end of constitutional amendments from the House committee.
Nevertheless, the House did take up a bill that proclaimed that there "shall be
no discrimination in civil rights or immunities among citizens of the United
States in any State or Territory....on account of race, color or previous condition
of slavery or involuntary servitude." Commonly referred to as the Civil Rights
Act of 1866, the law listed some of the civil rights which were meant to be
enforced.
President Johnson vetoed the Act, saying that he was not convinced that
the freed slaves "possess the requisite qualifications to entitle them to all of
the privileges and immunities of citizens of the United States," and that "the
distinction of race and color is by the bill made to operate in favor of the colored
and against the white race." Congress managed to muster enough votes to
override Johnson's veto, but, as Bingham had argued, Johnson's hostility toward
the Civil Rights Act reinforced the need for a constitutional amendment.
Thaddeus Stevens and Bingham properly observed that an act of Congress
could later be repealed by a less hospitable legislature.
Also arguing for a constitutional amendment was the fact that Republicans
faced a hostile Supreme Court. Most notably, in Dred Scott vs. Sanford, the
Court held that Blacks, even free Blacks, belonged to a degraded class at the
time the Constitution was written, and short of a constitutional amendment
making them citizens, could never be citizens of the United States.
The persistence of Bingham and others finally resulted in the ratification of
the Fourteenth Amendment on July 9, 1868. The passage of the Amendment
overruled Dred Scott and overcame the opposition of President Johnson and the
southern states in opposing broad rights of citizenship for newly freed Blacks,
making them citizens of the United States and conferring upon them, regardless
of where they resided, all of the rights and immunities of white citizens.
These limitations on state power dramatically expanded the protections of the
Constitution.

10 | Berks Barrister


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Berks County Bar Association The Berks Barrister Spring 2018

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