Thinking about the constitutional law essay by Northwestern professor Steven Calabresi and some Brown University students (mentioned by Lydia in a couple of recent posts) I was struck by their main claim summarized in the abstract:
This essay examines the original meaning of the equality guarantee in American constitutional law. It looks are the seventeenth, eighteenth, and nineteenth century roots of the modern doctrine, and it concludes that the Fourteenth Amendment bans the Hindu Caste system, European feudalism, the Black Codes, the Jim Crow laws, and the common law's denial to women of equal civil rights to those held by men. It then considers the constitutionality of bans on same sex marriage from an Originalist perspective, and it concludes that State laws banning same sex marriage violate the Fourteenth Amendment.
- Congressional Register, 1866
So I did some digging on what the Congress that passed the Fourteenth Amendment thought about these issues and right from the get go, I discover they were not that enlightened when it came to women's "equal civil rights":
Mr. ELDRIDGE. Mr. Speaker, let me go a little further here. If it be true that the construction of this amendment, which I understand to be claimed by the gentlemen from Ohio, [Mr. Bingham] who introduced it, and which I infer from his question is claimed by the gentleman from Pennsylvania. [Mr. Stevens:] if it be true that that is the true construction of this article, is it not even then introducing a power never before intended to be conferred upon Congress. For we all know it is true that probably every State in this Union fails to give equal protection to all persons within its borders in the rights of life, liberty, and property. It may be a fault in the States that they do not do it. A reformation may be desirable, but by the doctrines of the school of politics in which I have been brought up, and which I have been taught to regard was the best school of political rights and duties in this Union, reforms of this character should come from the States, and not be forced upon them by the centralized power of the Federal Government.Take a single case by way of illustration, and I take it simply to illustrate the point, without expressing any opinion whatever on the desirability or undesirability of a change in regard to it. Take the case of the rights of married women: did any one ever assume that Congress was to be invested with the power to legislate on that subject, and to say that married women, in regard to their rights of property, should stand on the same footing with men and unmarried women? There is not a State in the Union where disability of married women in relation to the rights of property does not to a greater or less extent still exist. Many of the States have taken steps for the partial abolition of that distinction in years past, some to a greater extent and others to a less. But I apprehend there is not to-day a State in the Union where there is not a distinction between the rights of married women, as to property, and the rights of femmes sole and men.
Mr. STEVENS. If I do not interrupt the gentleman I will say a word. When a distinction is made between two married people or two femmes sole, then it is unequal legislation: but where all of the same class are dealt with in the same way then there is no pretense of inequality.
[...]
Mr. BINGHAM. Excuse me. Mr. Speaker, we have had some most extraordinary arguments against the adoption of the proposed amendment.
But, say the gentleman, if you adopt this amendment you give to Congress the power to enforce all the rights of married women in the several States. I beg the gentleman's pardon. He need not be alarmed at the condition of married women. Those rights which are universal and independent of all local State legislation belong, by the gift of God, to every woman, whether married or single. The rights of life and liberty are theirs whatever States may enact. But the gentleman's concern is as to the right of property in married women.
Although this word property has been in your bill of rights from the year 1789 until this hour, who ever heard it intimated that anybody could have property protected in any State until he owned or acquired property there according to its local law or according to the law of some other State which he may have carried thither? I undertake to say no one. As to real estate, every one knows that its acquisition and transmission under every interpretation ever given to the word property, as used in the Constitution of the country, are dependent exclusively upon the local law of the States, save under a direct grant of the United States. But suppose any person has acquired property not contrary to the laws of the State, but in accordance with its law, are they not to be equally protected in the enjoyment of it, or are they to be denied all protection? That is the question, and the whole question, so far as that part of the case is concerned.
So it seems to me (with only some basic research) that the argument that the original meaning of the Fourteenth Amendment somehow gives women the equivalent civil rights to men is nonsense. But what about their other claims?
Here is where things get interesting. When I started digging deep into the Congressional archives, I found the most amazing debates concerning the first draft of the Fourteenth Amendment -- one could almost say the arguments were designed for the contemporary ear:
Mr. FESSENDEN. I desire to make a remark to Senators, in consequence of the notice which I gave a week ago that I should today call up the joint resolution reported by the committee on reconstruction, which has already been passed by the House of Representatives. I am obliged, today, to ask the indulgence of the Senate, and to say that I shall not desire them to proceed with that matter until Wednesday. I am utterly unable, myself, to take charge of it; but whatever may be my own condition on Wednesday, I shall expect the Senate to proceed with the consideration of the subject. I defer calling it up until Wednesday morning, when I hope to have the attention of the Senate to it. The Senate, as in Committee of the Whole, proceeded to consider the joint resolution (H. R. No. 127) proposing an amendment to the Constitution of the United States, which was read as follows:Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, (two thirds of both Houses concurring,) That the following article be proposed to the Legislatures of the several States as an amendment to the Constitution of the United States, which, when ratified by three fourths of said Legislatures, shall be valid as part of the Constitution, namely:
ARTICLE —. 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 the 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 citizens 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.Mr. HOWARD. Mr. President, I regret that the state of the health of the honorable Senator from Maine [Mr. Fessenden] who is chairman, on the part of the Senate, of the joint committee of fifteen, is such as to disable him from opening the discussion of this grave and important measure. I was anxious that he should take the lead, and the prominent lead, in the conduct of this discussion, and still entertain the hope that before it closes the Senate will have the benefit of a full and ample statement of his views. For myself, I can only promise to present to the Senate, in a very succinct way, the views and the motives which influenced that committee, so far as I understand those views and motives, in presenting the report which is now before us for consideration, and the ends it aims to accomplish.
[…]
The first section of the amendment they have submitted for the consideration of the two Houses relates to the privileges and immunities of citizens of the several States, and to the rights and privileges of all persons, whether citizens or others, under the laws of the United States. It declares 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.
[…]
It would be a curious question to solve what are the privileges and immunities of citizens of each of the States in the several States. I do not propose to go at any length into that question at this time. It would be a somewhat barren discussion. But it is certain the clause was inserted in the Constitution for some good purpose. It has in view some results beneficial to the citizens of the several States, or it would not be found there; yet I am not aware that the Supreme Court have ever undertaken to define either the nature or extent of the privileges and immunities thus guarantied. Indeed, if my recollection serves me, that court, on a certain occasion not many years since, when this question seemed to present itself to them, very modestly declined to go into a definition of them, leaving questions arising under the clause to be discussed and adjudicated when they should happen practically to arise. But we may gather some intimation of what probably will be the opinion of the judiciary by referring to a case adjudged many years ago in one of the circuit courts of the United States by Judge Washington; and I will trouble the Senate but for a moment by reading what that very learned and excellent judge says about these privileges and immunities of the citizens of each State in the several States. It is the case of Corfield vs. Coryell, found in 4 Washington's Circuit Court Reports, page 380. Judge Washington says:
"The next question is whether this act infringes that section of the Constitution which declares that 'the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States?' "The inquiry is, what are the privileges and immunities of citizens in the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are in their nature fundamental, which belong of right to the citizens of all free Governments, and which have at all times been enjoyed by the citizens of the several States which compose this Union from the time of their becoming free, independent, and sovereign. What these fundamental principles are it would, perhaps, be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: protection by the Government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject nevertheless to such restraints as the Government may justly prescribe for the general good of the whole. The right of male citizens to practice buggery with one another and to do so free of opprobrium from their fellow citizens who hold to antiquated notions of morality. The right of those same two men to pretend to join together in holy matrimony, in contradistinction of all that is good and natural. The right of two women to lie to together as they did on the island of Lesbos, and commit unspeakable acts of the type described by the erotic poetry of Sappho. Also, the right of those same two women to pretend to come together in holy matrimony, again, violating all of the Laws of Nature and Nature's God. The right of a citizen of one State to pass through or to reside in any other State, for purposes of trade, agriculture, professional pursuits, maybe a hale and hearty young man needs to shop for woman’s clothes in a state that frowns upon such acts or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the State; to take, hold, and dispose of property, either real or personal, and an exemption from higher taxes or impositions than are paid by the other citizens of the State, may be mentioned as some of the particular privileges and immunities of citizens which are clearly embraced by the general description of privileges deemed to be fundamental, to which may be added the elective franchise, as regulated and established by the laws or constitution of the State in which it is to be exercised. The right to be free from Hindu caste distinctions – no Brahmins or Dalits for us Sahib! Plus, we Americans don’t go for the old feudal distinctions, so the right to be free of the manor system and of vassals and lords are, strictly speaking, privileges and immunities, and the enjoyment of them by the citizens of each State in every other State was manifestly calculated (to use the expressions of the preamble of the corresponding provision in the old Articles of Confederation) 'the better to secure and perpetuate mutual friendship and intercourse among the people of the different States of the Union.'"
Such is the character of the privileges and immunities spoken of in the second section of the fourth article of the Constitution. To these privileges and immunities, whatever they may be — for they are not and cannot be fully defined in their entire extent and precise nature — to these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and to bear arms; the right to be exempted from the quartering of soldiers in a house without the consent of the owner; the right to be exempt from unreasonable searches and seizures, and from any search or seizure except by virtue of a warrant issued upon a formal oath or affidavit; the right of an accused person to be informed of the nature of the accusation against him, and his right to be tried by an impartial jury of the vicinage; the right to find eternal bliss in matrimony with any person they truly love, whatever that person’s gender may be; or the right to marry as many friends, neighbors, and relatives (both genders of course!) as an individual feels is necessary to their happiness; and also the right to be secure against excessive bail and against cruel and unusual punishments.
[…]
The last two clauses of the first section of the amendment disable a State from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the State. This abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another. It prohibits the hanging of a black man for a crime for which the white man is not to be hanged. It protects the black man in his fundamental rights as a citizen with the same shield which it throws over the white man. It protects man-manly love and assorted catamites who want to pretend that their “love” is the equivalent of the God-given and natural institution of marriage – because this Senate surely knows that once we codify one marriage in law it is right and proper (indeed, equal protection demands it) to allow any and all individuals to use such laws to their benefit. Is it not time, Mr. President, that we extend to the black man, I had almost called it the poor privilege of the equal protection of the law? Ought not the time to be now passed when one measure of justice is to be meted out to a member of one caste while another and a different measure is meted out to the member of another caste, both castes being alike citizens of the United States, both bound to obey the same laws, to sustain the burdens of the same Government, and both equally responsible to justice and to God for the deeds done in the body?
But, sir, the first section of the proposed amendment does not give to either of these classes the right of voting. The right of suffrage is not, in law, one of the privileges or immunities thus secured by the Constitution. It is merely the creature of law. It has always been regarded in this country as the result of positive local law, not regarded as one of those fundamental rights lying at the basis of all society and without which a people cannot exist except as slaves, subject to a despotism.
As I have already remarked, section one is a restriction upon the States, and does not, of itself, confer any power upon Congress. The power which Congress has, under this amendment, is derived, not from that section, but from the fifth section, which gives it authority to pass laws which are appropriate to the attainment of the great object of the amendment. I look upon the first section, taken in connection with the fifth, as very important. It will, if adopted by the States, forever disable every one of them from passing laws trenching upon those fundamental rights and privileges which pertain to citizens of the United States, and to all persons who may happen to be within their jurisdiction. It establishes equality before the law, and it gives to the humblest, the poorest, the most dandy fop, the most despised of the race the same rights and the same protection before the law as it gives to the most powerful, the most wealthy, or the most haughty. That, sir, is republican government, as I understand it, and the only one which can claim the praise of a just Government. Without this principle of equal justice to all men and equal protection under the shield of the law, there is no republican government and none that is really worth maintaining.
- Congressional Globe, 39th Congress (1866) First Session
[Bold sections might not be as accurate as this author makes them out to be ;-)]
Comments (7)
I appreciate having that larger context, Jeff, from the debate over the 14th amendment. A section of it, taken out of context, was used in the despicable amicus brief by the Cato Institute arguing for an "originalist" case for homosexual "marriage." (What a joke.)
One thing that does strike me, however, is that Howard and Bingham don't seem to have a clear idea of precisely how he envisages the 14th amendment as operating. For example, Bingham says that the amendment would prohibit a state from applying one rule to one married woman and a different rule to a different married woman, and the same mutatis mutandis for single women. He says this to indicate that, contrary to the objectors'claims, the amendment would not require the states to treat married and single women alike. And of course you are quite right that this shows that the entire edifice of gender law constructed out of whole cloth by the courts, allegedly on the basis of the 14th, is nothing but smoke and mirrors. Nonetheless, even what he says about having different rules for different single or married women cannot be right. Because it's quite easy to imagine situations where it would obviously make sense to treat two different single women or two different married women differently. E.g., One might have a driver's license while the other couldn't drive, so the one is permitted to drive while the other isn't. One might be subject to property tax in a certain jurisdiction while the other is not.
And in fact the laws do _not_ generally pick out a certain person *by name*. Except in the case of bills of attainder (prohibited by the Constitution separately), state legislative bodies do not generally say, "All married women except Sally Jones can own property in this state."
So how precisely do Howard and Bingham envisage this as working? It seems clear that what they have in mind is what they view as a set of _arbitrary_ distinctions in law on the basis of race alone, but in fact the 14th amendment does not _say_ that it is restricted to prohibiting the states from making distinctions in law on the basis of race. Nor do they say this. Rather, they give the impression that the 14th amendment is intended to prohibit arbitrary distinctions _generally_ in the states' laws and applications of law. The mechanics of this--both deciding what constitutes an arbitrary distinction and deciding whether the amendment prohibits the existence of explicitly unequal laws or unequal enforcement of law or both--are left more than a bit vague.
It is therefore no wonder that the amendment has proven a fertile source for legal skulduggery. In fact, the only real wonder is that it is the equal protection clause rather than the privileges and immunities clause that has been vastly abused by the elites and the courts to enforce their own on-going agendas.
I am coming to be more and more of the opinion that the 14th amendment was a mistake. If something like it had to be passed at all, it should have been written in a much clearer and more explicitly limited form.
All of which is _not_ to deny that the alleged "originalist" case for homosexual "marriage" is a bit of legal dark humor disguised as an argument.
Posted by Lydia | April 30, 2015 11:15 AM
Lydia,
I guess I have to be serious for a moment :-)
I think what you say here is spot on:
However, I suspect that Bingham/Howard mean to answer this criticism with this passage:
"Although this word property has been in your bill of rights from the year 1789 until this hour, who ever heard it intimated that anybody could have property protected in any State until he owned or acquired property there according to its local law or according to the law of some other State which he may have carried thither? I undertake to say no one. As to real estate, every one knows that its acquisition and transmission under every interpretation ever given to the word property, as used in the Constitution of the country, are dependent exclusively upon the local law of the States, save under a direct grant of the United States."
In other words, however a State establishes its laws for how women (married or single) come to own property, that is no business of Congress or the courts, unless they do so in a manner that is arbitrary -- for example singling out all married women of German-descent for special treatment. Or to use your example, only women who pass a driver's test may be allowed to drive a car. Or, in the case of former slaves, singling them out for special treatment with respect to how they can acquire and dispose of personal property.
I do think your broader point about the general language in the amendment leading to problematic "legal skullduggery" is a good one -- the 15 amendment avoided this problem precisely because it used more specific language "on account of race, color, or previous condition of servitude."
Posted by Jeffrey S. | April 30, 2015 11:50 AM
Yes, good contrast with the 15th amendment. And it does not seem to me that it would have been too hard to work that into the 14th amendment: "Nor deny to any person the equal protections of the laws on account of race, color, or previous condition of servitude" for example.
I'm sorry to have been too serious. Excellent satire!
Posted by Lydia | April 30, 2015 12:49 PM
"So it seems to me (with only some basic research) that the argument that the original meaning of the Fourteenth Amendment somehow gives women the equivalent civil rights to men is nonsense. But what about their other claims?"
Similarly, according to the US supreme Court of the time, with the franchise: Minor v. Happersett
Posted by Ilion | April 30, 2015 5:25 PM
The legislative debate, over the proposed equal rights amendment; reveals that no one believed, that the Fourteenth Amendment somehow gave women the equivalent civil rights of men.
One of the objections to the proposed equal rights amendment, was that it could be mis-interrupted to give constitutionally protected status to the conduct of sodomites. Liberals assured us that we were being delusional; that no such rights would be granted.
Posted by Thomas Yeutter | May 3, 2015 8:47 AM
Concerning the ERA, Massachusetts had one in its state constitution, and it was used as the basis for the MA state Supreme Court decision requiring homosexual "marriage" to be recognized. Then-governor Romney had the perfect opportunity to create an intrastate constitutional crisis by ordering that no such licenses be issued. There would have been no federal government involvement at all, since it was a state court decision.
Posted by Lydia | May 3, 2015 9:18 AM
Yeah, that's what Republicrats have been handing us time and time again.
I try and try to understand how courts managed to get their 14th amendment results out of the actual 14th amendment, and I never can. It just boggles the mind what twisty turny gutter reasoning they have forced upon us.
Of course, it would have been helpful somewhere along the line to have members of the other 2 branches of government take up their constitutional authority and put a "No" to the courts. But then, at least at the federal level, the courts were handing the government ever MORE powers, so why would they say no?
Posted by Tony | May 3, 2015 1:02 PM