Posted Online: Nov. 23, 2012, 6:10 am

What was the author of 14th Amendment's intent?

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By John Donald O'Shea

"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 to deny to any person within its jurisdiction the equal protection of the laws." -- 14th Amendment, U. S. Constitution

I have written that I believe our Constitution and Bill of Rights must be construed consistently with the intent of the men who wrote them -- that is, according to their "original intent."

The Constitution became the Supreme Law of the land on June 21, 1788. In 1791, the first 10 Amendments (known as the Bill of Rights) were adopted.
But for those unfamiliar with Constitutional history, the 14th Amendment wasn't adopted until 1868, three years after the Civil War ended. So how should it be construed? Consistently with the intent of the men who drafted it in 1868, and with the intent of the Congress that approved it and sent it on to the states for ratification. But who were the drafters?

George Washington, James Madison, Benjamin Franklin, Alexander Hamilton and others who drafted the Constitution had long passed from the scene, and had no input in the 14th Amendment. It was largely drafted by one congressman, a man whose name will probably be unknown to any person who reads this piece: Congressman John Armor Bingham, R-Ohio.

In the words of the Supreme Justice Hugo Black, "Congressman Bingham may, without extravagance, be called the Madison of the first section of the 14th Amendment."

To understand Black's praise, it is necessary to understand that the Bill of Rights was written to limit the powers of the federal government, not state governments. The Bill of Rights, from 1791 until 1868, afforded nobody any protection against actions by a state. Indeed, in 1833, Barron v. Baltimore, Chief Justice Marshall, speaking for the court, specifically held inapplicable to the states the provision of the Fifth Amendment which declares: "nor shall private property be taken for public use, without just compensation." The court said that it could not hold that the first eight amendments applied to the states.This was the controlling constitutional precedent when the 14th Amendment was proposed in 1866.

Here is how Rep. Bingham, who served on the Joint Committee for Reconstruction, explained his work product to Congress:

"I have sought to effect no change in that respect in the Constitution of the country. I have advocated here an amendment which would arm Congress with the power to compel obedience to the oath (to support the Constitution), and punish all violations by State officers of the bill of rights, but leaving those officers to discharge the duties enjoined upon them as citizens of the United States by that oath and by that Constitution ...
"I had read -- and that is what induced me to attempt to impose by constitutional amendments new limitations upon the power of the States -- the great decision of Marshall in Barron v. The Mayor and City Council of Baltimore, wherein the Chief Justice said, in obedience to his official oath and the Constitution as it then was: 'The amendments (to the Constitution) contained no expression indicating an intention to apply them to the State governments.' The Chief Justice also said, 'Had the framers of these amendments intended them to be limitations on the power of the State governments they would have imitated the framers of the original Constitution, and have expressed that intention.'
"Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States. ...
"These eight articles I have shown never were limitations upon the power of the States, until made so by the fourteenth amendment."

Any fair reading of Rep. Bingham's remarks boils down to this: Chief Justice Marshall had ruled in 1833 in Barron v. Baltimore that the Bill of Rights (specifically the first eight amendments thereof) had no application to the states. Congressman Bingham concluded that the rights guaranteed by the first eight amendments were the "privileges and immunities" of citizens of the United States.

He wrote the 14th Amendment to guaranty those "privileges and immunities" against state action, and to make the first eight amendments of the Bill of Rights applicable to the states, as well as to the federal government.

He sought to create no new rights. He merely advocated here an amendment which would arm Congress with the power to compel obedience to the oath to support the Constitution, and punish all violations by state officers of the Bill of Rights.

More of Congressman's Bingham's remarks, can be found in the appendix to Justice Black's dissenting opinion in Adamson v. California, where the majority construed the 14th Amendment according to its own "more enlightened" intent.

Only Justices Black and Douglas thought it should be construed consistently with the way the author of the amendment explained his proposed amendment to Congress.
John Donald O'Shea of Moline is a retired circuit court judge.