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On Being a Free Person and a Citizen by Constitutional Amendment

Published online by Cambridge University Press:  16 January 2009

Patricia Lucie
Patricia Lucie
Affiliation:
Department of Public Law at the University of Glasgow.
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Extract

In 1865, when Americans asked, “ What shall be done about the freed Negro? ” few of them realized that the question was a fragment of a larger one, “ What shall be done to define and secure the rights of all Americans? ” For despite its regional variations, slavery had a more coherent legal identity than freedom. There were as many different standards of citizenship as there were state and local laws regulating the ownership of property, personal mobility, the criminal code, family relationships, and court procedures. Travel from one state to another could considerably alter a person's legal standing. Even in the one state there was no unitary concept of citizenship and many Americans knew a kind of freedom which would not serve the freed slave well as a model. Married women were severely restricted in their contractual capacity and hence in their freedom to earn a living or own and dispose of property. In some states they had few custodial rights over their children and in others none. They were limited in their access to judicial remedies by laws and customs which prevented them bringing suit in some instances, restricted their right to testify, prohibited their service on juries, and even “ protected ” them from answering for some crimes for which the law held their husbands responsible. Free Negroes in the ante-bellum North, paupers of all races in all states, and Chinese settlers on the West Coast could all have furnished examples of the way in which discriminatory state legislative classifications deprived them of rights. The states operated a sliding scale of citizenship rights which routinely placed some and potentially could place all Americans at a considerable distance from what Republicans argued in 1866 were the rights of all.

Type
Research Article
Information
Journal of American Studies , Volume 12 , Issue 3 , December 1978 , pp. 343 - 358
Copyright
Copyright © Cambridge University Press 1978

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References

1 Levy, Leonard, Origins of the Fifth Amendment (New York: Oxford Univ. Press, 1968), p. 415Google Scholar.

2 Barron v. Baltimore, 7 Peters 243 (1833). John Norton Pomeroy observed that this left the states free with respect to their own inhabitants and if consistent with their own organic laws able to ignore all their provisions. Pomeroy, , An Introduction to the Constitutional Law of the United States, 2 vols., 9th edn. (Boston, 1886), 1, 151Google Scholar. There has been scholarly neglect of state bills of right.

3 See Bishop, Joel P., Commentaries on the Criminal Law (Boston: Little, Brown & Co., 1872)Google Scholar. Landynski, Jacob W., Search and Seizure and The Supreme Court (Baltimore: Johns Hopkins Press, 1966), p. 49Google Scholar also comments on the extent to which these amendments lay dormant.

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12 The Seneca Falls Declaration (1848) is one example of their priorities. See Anthony, Susan B., Stanton, Elizabeth C. and Harper, Ida H., eds., History of Woman Suffrage, 6 vols. (Boston: Anthony, 1881), 1, 70–71Google Scholar, hereafter cited as H.W.S.

13 Riegel, p. 216. Feminists overestimated their contribution to the reforms. See Catt, Carrie C. and Shuler, Nettie R., Woman Suffrage and Politics, (New York, 1923), p. 35Google Scholar, “ No cause ever made such rapid strides as that of Woman's Rights from 1850 to 1860.”

14 H.W.S., 2, p. 57.

15 Ibid., p. 81.

16 Ibid., p. 91.

17 Flexner, Chap. 10. Looking back on events, Elizabeth Stanton records the gossip of the drafting committee: “ One of the committee proposed ‘ persons ’ instead of ‘ males.’ ‘ That will never do,’ said another, ‘ it would enfranchise wenches.’ ‘ Suffrage for black men will be all the strain the Republican party can stand,’ said another. Charles Sumner said years afterward, that he wrote nineteen pages of foolscap to get rid of the word ‘ male ’ and yet keep ‘ negro suffrage ’ as a party measure intact; but it could not be done.” Stanton, Elizabeth C., Eighty Years and More (New York: Schocken Books, 1971 Reprint), p. 242Google Scholar.

18 The division in 1869 was physical as well as intellectual. The American Woman Suffrage Assoc. accepted the priority of race over sex for the moment while the National Woman Suffrage Association continued to press their own claim to vote.

19 H.W.S., 2, 267–70.

20 The New York Tribune, 12 Dec. 1866 commented that Senator Cowan was “ considerably more anxious to embarrass the bill for enfranchising the blacks than to amend it by conferring upon women the enjoyment of the same right.” Quoted in H.W.S., 2, 103.

21 See especially speeches by Ingersoll, Ebon, Congressional Globe, 38th Cong., 1 sess. p. 2990 (15 06 1864)Google Scholar and James Harlan, ibid., p. 1439 (28 Mar. 1864). Historians disagree about the nature of rights which the Republicans believed the Thirteenth Amendment implied. tenBroeck, Jacobus, Equal Under Law (New York, Collier Books, 1965)Google Scholar, argues the case for an expansive interpretation, while Belz, Herman, A New Birth of Freedom: The Republican Party and Freedmen's Rights, 1861–1866 (Westport: Greenwood Press, 1976)Google Scholar, takes a narrower view of the framers' intentions.

22 Speeches by Orth, Godlove, Congressional Globe, 38th Cong., 2 sess., p. 143 (6 03 1865)Google Scholar and Henry Wilson, ibid., 1 sess., p. 1332 (28 Mar. 1864).

23 Ibid., 39th Cong., 1 sess., p. 322 (19 Jan. 1866). Senator Howard said, “ I take this occasion to say that it was in contemplation of its friends and advocates to give to Congress precisely the power over the subject of slavery and freedom which is proposed to be exercised by the bill now under consideration.” Ibid., p. 503 (30 Jan. 1866).

24 Ibid., 38th Cong., 1 sess., pp. 1202–03 (19 Mar. 1864).

25 Ibid., pp. 2989–91 (15 June 1864).

26 H.W.S., 2, 68.

27 Cong. Globe, 38th Cong., 1 sess., p. 1482 (8 04 1864)Google Scholar. For Sumner's general views on women's rights see Donald, David, Charles Sumner and The Rights of Man (New York: Knopf, 1970)Google Scholar.

28 Cong. Globe, 38th Cong., 1 sess., p. 1488 (8 04 1864)Google Scholar.

29 Ibid., pp. 1488–89 (8 Apr. 1864).

30 The proposal was put to the Committee of Fifteen on Reconstruction on 3 Feb. 1866. It was introduced into the Senate on 13 Feb. but was ordered to lie on the table and occasioned no further debate. It was introduced to the House on the same day and debated upon from 26–28 Feb., when further debate was postponed, in practice indefinitely.

31 See Cong. Globe, 39th Cong., 1 sess., pp. 1063–64 (27 02 1866)Google Scholar for this exchange.

32 Ibid., p. 1089.

33 Ibid., 42 Cong., 1 sess., App. pp. 82–86 (31 Mar. 1871).

34 The patriarchal aspects of Southern Society are better understood than the Northern. See Scott, Anne F., The Southern Lady: From Pedestal to Politics 1830–1930 (Chicago: Univ. of Chicago Press, 1970)Google Scholar. The importance of the family in shaping Northern attitudes, both male and female, to freedom as well as slavery has been noted recently by Walters, Ronald G., The Antislavery Appeal (Baltimore & London: The John Hopkins Univ. Press, 1976) Chap. 6Google Scholar.

35 Hyman, Harold M., A More Perfect Union: The Impact of the Civil War and Reconstruction on the Constitution (New York: Knopf, 1973)Google Scholar and Benedict, Michael L., A Compromise of Principle: Congressional Republicans and Reconstruction 1863–1869 (New York: Norton, 1974)Google Scholar.

36 Benedict, p. 170.

37 Opinions of the Attorneys General of the United States, 10, 383. Bates' opinion did little to throw light on the substance of citizenship.

38 Bingham, John, Cong. Globe, 39th Cong., 1 sess. pp. 1089–90 (28 02 1866)Google Scholar, and Jacob Howard, ibid., p. 2765 (23 May 1866).

39 Adamson v. California, 332 U.S. 46 (1948). In practice of course the Supreme Court in recent times has applied almost the whole Bill of Rights to the states.

40 Fairman, Charles, “ Does the Fourteenth Amendment Incorporate the Bill of Rights? ” Stanford Law Review, 2 (1949), 5–139CrossRefGoogle Scholar.

41 The Slaughterhouse Cases, 16 Wall. 35, Bradwell v. The State, 16 Wall. 138 (1873).

42 Interestingly Justice Bradley dissented in Slaughterhouse, arguing that the right to follow a lawful employment was a privilege and immunity of US citizenship but in Bradwell he agreed with the Court that with respect to the admission of a woman to the bar it was not. For a discussion of the relationship of the two cases see Hodes, W. William, “ Women and the Constitution: Some Legal History and a New Approach to the Nineteenth Amendment ”, Rutgers Law Review, 25 (1970), 26–53Google Scholar.

43 Minor v. Happersett, 21 Wall. 162 (1875).

44 Cong. Globe, 39th Cong., 1 sess., p. 606 (2 02 1866)Google Scholar.

45 These cases are reviewed in H.W.S., 2, Chap. 25, “ Trials and Decisions”.

46 Ibid., p. 451, as quoted in a speech by Albert G. Riddle.

47 The Court's course on sex and poverty discrimination is by no means settled. See Ginsburg, Ruth Bader, “ Gender in the Supreme Court: The 1973 and 1974 Terms,” The Supreme Court Review (Chicago, 1975), pp. 1–24Google Scholar, and William H. Clune III, “ The Supreme Court's Treatment of Wealth Discriminations Under The Fourteenth Amendment,” ibid., pp. 289–354.

48 McDonald and Laird v. Santa Fe Trail Transportation Co., 49 L Ed. 2d. 493 (1976). Since then the Court's disposition of the Bakke case appears to settle the point.