John w k wrote:
Can anyone in this forum provide documentation from the debates during which time the Fourteenth Amendment was framed and ratified which establishes there was a prevailing consensus of agreement that by the adoption of the Fourteenth Amendment to the Constitution, the Fifth Amendment was to henceforth be made applicable to the states by the Fourteenth Amendment?
You did so yourself. In the pages of the very debate that you later quote (out-of-context and in attempt to misrepresent history), it is clear that the people were seeking a means to make the Bill of Rights enforceable by the federal government against the States for the protection of all citizens. See comments below after your quoted passage wherein you misrepresent the context of Mr. Shellabarger's comments in the House of Representatives.
[Edited to add the following:]
Even though the people wanted the Bill of Rights enforced by the federal government against state usurpations, the Supreme Court rejected the argument that the Bill of Rights was incorporated into the Fourteenth Amendment from the very beginning. Instead, the Court went through a painstaking process over several decades to selectively incorporate most of the securities found in the Bill of Rights.
As far as the debates of the Thirty-Ninth Congress, the Supreme Court has stated the following:
The Supreme Court wrote:
LOVING v. VIRGINIA, 388 U.S. 1 (1967)
The State argues that statements in the Thirty-ninth Congress about the time of the passage of the Fourteenth Amendment indicate that the Framers did not intend the Amendment to make unconstitutional state miscegenation laws. Many of the statements alluded to by the State concern the debates over the Freedmen's Bureau Bill, which President Johnson vetoed, and the Civil Rights Act of 1866, 14 Stat. 27, enacted over his veto. While these statements have some relevance to the intention of Congress in submitting the Fourteenth Amendment, it must be understood that they pertained to the passage of specific statutes and not to the broader, organic purpose of a constitutional amendment. As for the various statements directly concerning the Fourteenth Amendment, we have said in connection with a related problem, that although these historical sources "cast some light" they are not sufficient to resolve the problem; "[a]t best, they are inconclusive.
The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among `all persons born or naturalized in the United States.' Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect." Brown v. Board of Education, 347 U.S. 483, 489 (1954). See also Strauder [388 U.S. 1, 10] v. West Virginia, 100 U.S. 303, 310 (1880). We have rejected the proposition that the debates in the Thirty-ninth Congress or in the state legislatures which ratified the Fourteenth Amendment supported the theory advanced by the State, that the requirement of equal protection of the laws is satisfied by penal laws defining offenses based on racial classifications so long as white and Negro participants in the offense were similarly punished. McLaughlin v. Florida, 379 U.S. 184 (1964).
john w k wrote:
As a matter of fact, there is an abundance of documented evidence the amendment was specifically intended to apply in a very narrow area…to prohibit state authorized discrimination, unequal law, based upon “race, color, or previous condition of slavery…”
As Rep. Shallabarger, a primary supporter of the Fourteenth Amendment stated when it was being debated
“Its whole effect is not to confer or regulate rights, but to require that whatever of these enumerated rights and obligations are imposed by State laws shall be for and upon all citizens alike without distinctions based on race or former condition of slavery..It permits the States to say that the wife may not testify, sue or contract. It makes no law as to this. Its whole effect is to require that whatever rights as to each of the enumerated civil (not political) matters the States may confer upon one race or color of the citizens shall be held by all races in equality…It does not prohibit you from discriminating between citizens of the same race, or of different races, as to what their rights to testify, to inherit &c. shall be. But if you do discriminate, it must not be on account of race, color or former conditions of slavery. That is all. If you permit a white man who is an infidel to testify, so you must a colored infidel. Self-evidently this is the whole effect of this first section. It secures-not to all citizens, but to all races as races who are citizens- equality of protection in those enumerated civil rights which the States may deem proper to confer upon any race.”
(see Rep. Shallabarger, Congressional Globe, 1866, page 1293)
If there was an abundance of documented evidence that supports your argument, why didn't you present it? Why did you resort to misrepresentation of the only alleged evidence that you did provide?
You have misrepresented that Mr. Shellabarger's quoted passage refers to the Fourteenth Amendment. It does not. The language of the Fourteenth Amendment does NOT confine its application to discrimination of civil rights on account of race, color, or previous condition of slavery. Any such language that would have qualified the application of the Fourteenth Amendment was omitted from the Amendment. No such qualification exists as you allege.
Mr. Shellabarger's comments refer to the first section of the proposed civil rights bill that by its language specifically addresses discrimination of civil rights on account of race, color, or previous condition of slavery.
The first section of the proposed civil rights bill provided the following:
"There shall be no discrimination in civil rights or immunities among citizens of the United States in any State or Territory of the United States on account of race, color, or previous condition of slavery
The first section of the proposed civil rights bill continued as follows:
"And such citizens of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right to make and enforce contracts, to sue, be parties and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, and shall be subeject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding
Therefore, it was appropriate for Mr. Shellabarager to discuss the effect of that specific language in the first section of the proposed civil rights bill--he was NOT talking about the Fourteenth Amendment as you alleged and hence, misrepresented.
In order to misrepresent, you omitted Mr. Shellabarger's statements that prefaced the beginning of your quoted passage. Read Shellabarger's statements in context (with your parsings italicized):
The residue of the [first] section [of the proposed civil rights bill] provides that--
"[There shall be no discrimination in civil rights or immunities among citizens of the United States in any State or Territory of the United States on account of race, color, or previous condition of slavery.] And such citizens of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right to make and enforce contracts, to sue, be parties and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, and shall be subeject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding."
Now, sir, these provisions, first, prohibit its discrimination in securing the civil rights of citizens on account of race, color, or previous condition of slavery. Second, that these, without regard to such race or condition, shall have the same right to contract, convey, sue, testify, inherit, and to claim benefits of the laws protecting person and property as white citizens, and shall be subject to the same penalties, and this notwithstanding any other laws.
Now, Mr. Speaker, if this section did in fact to confer or define or regulate these civil rights, which are named by the words contract, sue, testify, inherit, etc., then it would, as it seems to me, be an assumption of the reserved rights of the States and the people. But, sir, except so far as it confers citizenship, it neither confers nor defines nor regulates any right whatever. Its whole effect is not to confer or regulate rights, but to require that whatever of these enumerated rights and obligations are imposed by State laws shall be for and upon all citizens alike without distinctions based on race or former condition in slavery.
If it undertook, for example, to say that a married woman or child under age of intelligence should testify, that would invade the rights reserved to the State. But, sir, it does nothing like that. It permits the States to say that the wife may not testify, sue, or contract. It makes no law as to this. Its whole effect is to require that whatever rights as to each of these enumerated civil (not political) matters the States may confer upon one race or color of the citizens shall be held by all races in equality. Your State may deprive women of the right to sue or contract or testify, and children from doing the same. But if you do so, or do not so as to one race, you shall treat the other likewise. It does not prohibit you from discriminating between citizens of the same race race, or of different races, as to what their rights to testify, to inherit, etc., shall be. But if you do discriminate, it must not be "on account of race, color, or former condition of slavery." That is all. If you permit a white man who is an infidel to testify, so you must a colored infidel.
[NOTE: In JWK's version of Shellabarger's statements, JWK omitted the quotation marks around the phrase "on account of race, color, or former condition of slavery" to conceal the fact that Shellabarger was quoting language directly from the proposed civil rights act. JWK wanted you to believe, through his many omissions, that Shellabarger was speaking about the Fourteenth Amendment--and of course, it would have been impossible for Shellabarger to quote language that didn't exist.]
Self-evidently this is the whole effect of this first section [of the proposed civil rights bill]. It secures--not to all citizens, but to all races as races who are citizens--equality of protection in those enumerated civil rights which the States may deem proper to confer upon any races. Now, sir, can this Government do this?
JWK: Your selective parsing of Shellabarger's statements are italicized above. As you can see--as everyone can see--when you read the statements in the proper context in which they were given--Shellabarger's statements do not relate to the Fourteenth Amendment as you alleged and misrepresented.
On the question of whether Congress may enact civil rights legislation, Shellabarger's stated his belief that that citizens of the United States, as such, are entitled to certain rights and it is the duty of the Government to protect citizens in the perfect enjoyment of them. Congress's power to provide remedies for state deprivations of a person's life, liberty, or property was implicit in the Constitution without need for a constitutional amendment because where else would the remedy come? From the state--the very source interfering with the right? Without the implicit power to protect citizens against state deprivations of their rights, the Republic becomes an oppressor--exacting a discharge of duty from the citizen (to pay taxes and to be called to bloody battlefields in the time of war to support the Republic) without returning a protective compensation.
If I had presented your same argument to a court of law, I would be guilty of the ethical violation of fraud upon the court if the misrepresentation was intentional or guilty of incompetence if the misrepresentation was negligent.
Nevertheless, in your zeal to misrepresent the historical context of the Fourteenth Amendment, you have pointed to a source that demonstrates that the people were indeed seeking a means to make the bill of rights enforceable against the States.
On March 9, 1866, among other things, the House of Representatives resumed the consideration of the bill (S. No. 61) concerning the rights of citizens.
Mr. Wilson from Iowa was entitled to the floor. Wilson yielded some of his time to Mr. Bingham from Ohio.
Mr. Bingham objected to the proposed civil rights bill in its present form and proposed an amendment to the bill. Mr. Bingham doubted the power of Congress to pass the bill, but if it was passed, he wanted it presented "in the least objectionable form to the final decision of the Federal tribunals of the country." He urged removal of the penal provisions from the bill that he deemed to be oppressive and unjust. In lieu of penal provisions enforceable against those who would violate the civil rights of others, Bingham proposed to grant a private right of action (the right to sue for civil damages) to injured citizens and to secure to such persons the privilege of the writ of habeas corpus.
Although Bingham objected to the penal provisions of the proposed civil rights bill, he made the following clear:
". . . I do not oppose any legislation which is authorized by the Constitution of my country to enforce its letter and its spirit the bill of rights
as embodied in that Constitution. I know that the enforcement of the bill of rights is the want of the Republic
Mr. Bingham believed the enforcement of the bill of rights
, touching the life, liberty, and property of every citizen
of the Republic within every State of the Union, was a reserved power of the States to be enforced by State tribunals and State officials acting under the solemn obligations of an oath imposed upon them by the Constitution of the United States. Mr. Bingham recited the Tenth Amendment and stated the Consitution does not delegate to the United States the power to punish offenses against the life, liberty, or property of the citizens in the States, nor does it prohibit that power to the States, but leaves it as the reserved power of the States to be exercised by them.
Bingham said: "I hold, sir, that our Constitution never conferred upon the Congress of the United States the power--sacred as life is, first as it is before all other rights that pertain to man on this side of the grave--to protect it in time of peace by the terrors of the penal code within organized States; and Congress has never attempted to do it."
Although the primary purpose of proposed civil rights bill was to put blacks on an equal footing with whites and to wipe out discrimination in the states on the basis of race, color, or former condition of servitude through federal enforcement of the legislation--it was evident to most that Congress had no authority under the constitution to pass any kind of legislation to enforce civil rights. If Congress has no authority under the Constitution to enforce the bill of rights (embodying security for our most precious rights) against the States for ALL CITIZENS, how can Congress do so for black people?
Shellabarger argued that Congress had the implicit power in the Constitution to protect individual rights and the proposed civil rights bill was constitutional; whereas Bingham believed a constitutional amendment was necessary to confer such power on Congress to pass this kind of legislation. The Fourteenth Amendment was designed to confer constitutional power upon Congress to legislate federal protection for the fundamental civil rights of ALL citizens and persons--not just blacks. The enforcement of the bill of rights for ALL citizens and persons was the want of the Republic.
Shortly after the Fourteenth Amendment
was adopted, Supreme Court Justice Bradley stated the following:
Justice Bradley wrote:
IN RE SLAUGHTER-HOUSE CASES, 83 U.S. 36 (1872)
Admitting, therefore, that formerly the States were not prohibited from infringing any of the fundamental privileges and immunities of citizens of the United States, except [83 U.S. 36, 122] in a few specified cases, that cannot be said now, since the adoption of the fourteenth amendment. In my judgment, it was the intention of the people of this country in adopting that amendment to provide National security against violation by the States of the fundamental rights of the citizen.
The first section of this amendment, after declaring that all persons born or naturalized in the United States, and subject to its jurisdiction, are citizens of the United States and of the State wherein they reside, proceeds to declare further, that '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;' and that Congress shall have power to enforce by appropriate legislation the provisions of this article.
Now, here is a clear prohibition on the States against making or enforcing any law which shall abridge the privileges or immunities of citizens of the United States.
If my views are correct with regard to what are the privileges and immunities of citizens, it follows conclusively that any law which establishes a sheer monopoly, depriving a large class of citizens of the privilege of pursuing a lawful employment, does abridge the privileges of those citizens.
The amendment also prohibits any State from depriving any person ( citizen or otherwise) of life, liberty, or property, without due process of law.
In my view, a law which prohibits a large class of citizens from adopting a lawful employment, or from following a lawful employment previously adopted, does deprive them of liberty as well as property, without due process of law. Their right of choice is a portion of their liberty; their occupation is their property. Such a law also deprives those citizens of the equal protection of the laws, contrary to the last clause of the section.
The constitutional question is distinctly raised in these cases; the constitutional right is expressly claimed; it was [83 U.S. 36, 123] violated by State law, which was sustained by the State court, and we are called upon in a legitimate and proper way to afford redress. Our jurisdiction and our duty are plain and imperative.
It is futile to argue that none but persons of the African race are intended to be benefited by this amendment. They may have been the primary cause of the amendment, but its language is general, embracing all citizens, and I think it was purposely so expressed.
The mischief to be remedied was not merely slavery and its incidents and consequences; but that spirit of insubordination and disloyalty to the National government which had troubled the country for so many years in some of the States, and that intolerance of free speech and free discussion which often rendered life and property insecure, and led to much unequal legislation. The amendment was an attempt to give voice to the strong National yearning for that time and that condition of things, in which American citizenship should be a sure guaranty of safety, and in which every citizen of the United States might stand erect on every portion of its soil, in the full enjoyment of every right and privilege belonging to a freeman, without fear of violence or molestation.
From a historical perspective, and despite your attempts to misrepresent history, there is absolutely no proof that the Fourteenth Amendment is limited in the manner you allege. Yours is merely a self-serving argument based on your own agenda that has no basis in fact or law.