A Dummies Guide to Understanding the Fourteenth Amendment
The history and interpretation in the words of those who debated and adopted it.
By P.A. Madison
Last updated on May 18, 2007
Note: My original “Dummies Guide” is undergoing a makeover offline. What follows is a recent essay on incorporation and the privileges and immunities.
Comments & Discussion
John A. Bingham
Jacob M. Howard
The equal protection clause was derived from the 5th Amendment’s “No person” shall be deprived of of life, liberty, or property, without due process of law.
Bingham sought to secure the same rights and privileges of United States citizens as was imposed upon the State of Missouri in 1819.
The privileges and immunities of citizens of the United States refer only to those privileges and immunities embraced in the original text of the Constitution, Article IV, Section 2.
John Bingham lacked “reasoning faculty” according to Samuel S. Cox in his memoirs.
“That people’s greatest security is in just laws of their own enactment faithfully observed and enforced by their own tribunals of justice.”
–John Bingham (January 13, 1868)
The long held notion that the Fourteenth Amendment incorporates the first eight amendments either, totally or selectively, is without merit or factual foundation, but also in direct defiance of the official legislative interpretation left by those who had framed and adopted it. Whatever ambiguity Bingham left behind in 1866 in regards to the intent and meaning of the Fourteenthâ€™s privileges and immunities phrase, he officially pronounced its proper construction in January of 1871 in a House report released by the judiciary committee he chaired.
To begin the discussion of the true meaning of the â€œprivileges and immunitiesâ€ the Fourteenth Amendment speaks of, we should start with a very brief historical discussion of the language as it was first presented to the House on February 26, 1866:
The Congress shall have power to make laws which shall be necessary and proper to secure to the citizens of each State all the 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.
The first question such language inspires is: What exactly is Congress supposed to secure by law, and equally important, what is forbidden of the States? The Fourteenthâ€™s chief sponsor, Rep. John Bingham of Ohio, helps us out in a February 26, 1866 speech by stating that every â€œword in the proposed [Fourteenth] Amendment is today in the Constitution of our country.â€ This is an aid because any confusion arising over the application of the words we can just look to see what the words had always meant under the Constitution. Bingham goes on to detail where these words come from, which of course is a helpful aid as well:
The residue of the resolution, as the House will see by a reference to the Constitution, is in the language of the second section of the fourth article, and of a portion of the Fifth Amendment adopted by the First Congress in 1789, and made part of the Constitution of the Country.