[Note: I will limit the discussion herein to sections 1 and 5 of
Section 1: All persons born or naturalized in
the United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the state wherein they reside.
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.
Section 5. The Congress shall have power to enforce, by appropriate
legislation, the provisions of this article.
Does the Fourteenth Amendment make the entire Bill of Rights a
restriction against the States? If so, which amendments or clauses?
What did both "due process of the law" and "equal
protection" mean to the Congress who produced the Amendment? Does
the Fourteenth Amendment guarantee State paid education to aliens?
It has long been said that what you don't know can hurt you, and no
more is this true than with citizens unknowingly falling victim to
faulty Fourteenth Amendment construction. There are jurists who
willfully obfuscate the meaning of the Fourteenth Amendment when
rendering phony jurisprudence with the goal of advancing their own
personal bias. Even scholars are known to obfuscate the Fourteenth
Amendment in hopes their own unsupported constitutional theories may
be seen as having some constitutional semblance of validity.
Had the Fourteenth Amendment been seen as remotely empowering
Congress to legislate directly over State citizens, would had resulted
in certain defeat in the House of Representatives. Its author
understood this, and was also convinced that Congress had no proper
constitutional jurisdiction to directly legislate over citizens within
a State or, should it. Most all involved in the Fourteenth Amendment
ratification believed that matters of life, liberty and property of
the people belonged exclusively with the States and its citizens, and
in no instance should any act be considered to grant Congress such
No Fourteenth Amendment introduction can be complete without first
making some basic constitutional concepts clear to the reader.
Firstly, consider the Bill of Rights as a combination of State rights
and individual guarantee's against certain acts by the federal
government. One of the greatest freedoms to come out of the great
compact between individual States in forming a new Union we call the
United States, was the right to self-government without federal
interference during peace. The Bill of Rights acted to protect the
States and its citizens from oppressive acts by Congress in abridging
such things as speech, the press or imprisonment without trial.
Look at this way: An American citizen has a enumerated right to be
protected from acts of Congress abridging their speech, religion or
the press but also have a enumerated right to regulate speech, the
press or even create a State church via their State legislative
process through the Tenth Amendment. As you will learn, the Fourteenth
Amendment recognized and protected this very important concept by
leaving reserved State rights undisturbed, and by further making no
attempt to change the spirit of the Constitution itself.
Many confuse the words "life, liberty and property"
spoken of in the Bill of Rights to mean expansive rights but this is
incorrect for two very significant reasons. One is the simple fact
life, liberty and property the Bill of Rights speaks of have to do
with what a person stands to be deprived of for a violation of some
law. In simple terms life meant the hanging of someone for a crime
while liberty signified throwing one in jail for a crime, and property
meant the taking by government of fines, limbs or, even ones
In other words, when the Fourteenth Amendment speaks of life,
liberty or property it is speaking of "laws for the
punishment of crimes against life, liberty, or property" or
the laws for the protection against crimes of life, liberty, or
property. This is why we find the phrase "due process"
associated with these words: all persons are entitled to a trial and
other basic procedures of law before they can be deprived of their
life, liberty and property by government action for a crime. It's
these rights along with the right to be free from oppressive national
government actions (example: a national church) we speak of in the
Bill of Rights.
The other significant reason why the above is true is because the
US Constitution was not vested with any concerns or direct authority
over personal rights and matters of the people themselves (you will
read more about this shortly.) The States and the people were given
the sole jurisdiction of all matters dealing with peoples liberties
and laws and not the national government. Madison's initial Bill of
Rights was rejected when he attempted to make the same restrictions
imposed upon Congress a restriction upon the States as well.
Likewise, the initial proposed Fourteenth Amendment was rejected
because it was seen as giving the federal government direct
jurisdiction over the affairs of citizens of the States, something the
States have always tended to guard against -- even in the year 1866.
It should also be noted that the right to vote was considered neither
a liberty or a privileges or immunity under the first section of the
Fourteenth Amendment, and thus, demonstrating further that life,
liberty or property was really simply what one stood to be deprived of
for a violation of law. Sen. Jacob Howard who introduced the
provisions of the Fourteenth Amendment to the Senate on May 23, 1866
[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.
If liberty was seen as having expansive rights belonging to all
citizens, then the right to vote could had easily been said to be
found in the word "liberty."
Explaining the Fourteenth Amendment in such little space in a way
that most can easily understand its purpose and limitations is
challenging. I will make no attempt to filter the meaning of the
Amendment through Supreme Court rulings -- but instead allow the
primary framer's own words explain the meaning of the Amendment. After
all, Supreme Court rulings can change over time but recorded history
does not -- and no Supreme Court ruling can change recorded history.
It is my hope than, that this guide will enable the reader to have
a more honest understanding of what the Fourteenth Amendment is all
about that can lead to better informed judgements from those who
understood the meaning of the text best.
Perhaps once the great blindfold is removed from both ordinary
citizens and State officials will they begin to see and appreciate the
fact the Fourteenth Amendment sought no change in the relationship
between the National Government, States, and most importantly, private
citizens. On the other hand, many may find this new insight both
troubling and disturbing because it will run against everything they
been lead to believe in modern times. Like with all truths, its
important that the truth be revealed so that better informed
judgements can be made in the purest light.
In February of 1866 John A. Bingham, a Republican representative
from Ohio, proposed amending the Constitution of the United States
with the following proposed amendment:
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.
Initially this amendment ran into strong opposition from all sides
of the aisle, leading to Sen. William Stewart of Nevada to argue the
amendment would permit "Congress to legislate fully upon all
subjects affecting life, liberty, and property," to such degree
that "there would not be much left for the State
Legislatures," and would thereby "work an entire change in
our form of government."
Giles Hotchkiss of New York said "I understand the amendment
as now proposed by its terms, to authorize Congress to establish
uniform laws throughout the United States upon the subject named, the
protection of life, liberty, and property. I am unwilling that
Congress shall have any such power." Rep. Andrew Rogers of NJ
blasted the proposed Amendment as "the embodiment of
centralization and disfranchisement of the States of those sacred and
immutable State rights" reserved in the organic law.
Rep. Garrett Davis was "especially opposed to any Amendment
which may prove subversive of the principles on which the government
was founded." Aaron Harding of KY argued: "Will not Congress
then virtually hold all power of legislation over your own citizens
and in defiance of you?"
Bingham's initial draft was made to lie on the table, which was a
test vote on the merits and failed by a vote of 41 to 110. The bill
went back to the Joint Committee on Reconstruction for further
consideration and refinement by Bingham. On May 8, 1866 committee
chairman, Thaddeus Stevens, introduced the new Amendment to the House
This proposition is not all that the committee desired. It falls
far short of my wishes, but it fulfills my hopes. I believe it is
all that can be obtained in the present state of public opinion. Not
only Congress but the several States are to be consulted. Upon a
careful survey of the whole ground, we did not believe that nineteen
of the loyal States could be induced to ratify any proposition more
stringent than this.
The first section prohibits the States from abridging the privileges
and immunities of citizens of the United States, or unlawfully
depriving them of life, liberty, or property, or of denying to any
person within their jurisdiction the "equal" protection of
I can hardly believe that any person can be found who will not admit
that every one of these provisions is just. They are all asserted,
in some form or other, in our Declaration or organic law. But the
Constitution limits only the actions of Congress, and is not a
limitation on the States. This amendment supplies that defect, and
allows Congress to correct the unjust legislation of the States, so
far that the law which operates upon one man shall operate equally
upon all. Whatever law punishes a white man for a crime shall punish
the black man precisely in the same way and to the same degree.
Whatever law protects the white man shall afford "equal"
protection to the black man.
Here Stevens reveals behind the scenes struggles to produce the
Amendment and the difficulties encountered in producing a version that
the majority of States would be willing to ratify. Keep in mind that
most of the States jealously guarded their sovereignty, and no doubt
not many States would be found willing to arm Congress with the power
to directly legislate over its citizens. The committee’s final draft
of the Amendment is what now found in the Constitution today:
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.
The Congress shall have power to enforce, by appropriate
legislation, the provisions of this article.
After the Amendment had come out of committee in March 1866, most
began to feel encouraged that the Amendment proposed no threat or
empowered Congress with any new powers over the States. New York
Governor, Reuben E. Fenton, urged speedy ratification of the Amendment
insisting that its provisions "are understood, appreciated and
approved." Gov. Fenton being both a pro-abolitionists and staunch
supporter of decentralized national government must had been assured
that no new powers of Congress over the States was being advanced by
With most satisfied that the new proposed Fourteenth Amendment
article proposed no threat to the States sovereignty it became
ratified on July 28, 1868.
The Citizenship Clause did not originate from John Bingham but was
inserted while the bill was under consideration in the Senate by Sen.
Jacob Howard. It was intended to establish who is, and who isn't, a
citizen of the United States. The clause itself is straightforward and
came with ample documentary construction over how "subject to the
jurisdiction" was to be construed. Sen. Howard introduced the
clause this way:
Of course the only other class of persons left that can be
considered is US Citizens. Note that Sen. Howard considered it
"the law of the land" already, confirming that it was
already established national law that it was not enough to simply be
born within the US to become a United States citizen. Sen. Howard
later confirms just this when he said the Citizenship Clause "ought
to be construed so as to imply a full and complete jurisdiction on the
part of the United States, whether exercised by Congress, by the
executive, or by the judicial department; that is to say, the same
jurisdiction in extent and quality as applies to every citizen of the
United States now."
Essentially then, the phrase "subject to the jurisdiction"
was not used in any sense of geographical location -- but in the full
sense of allegiance. This is confirmed by Sen. James Kelly a
few years later when he said "in order to be a
citizen of the United States he must been not only be born within the
United States, but born within the allegiance of the United States."
One might wonder to why Sen. Jacob Howard choose to use the phrase
"subject to the jurisdiction thereof" rather than
the language of the civil rights bill of 1866 and 1870 that declared:
"All persons born in the United States and not subject to any
foreign power, excluding Indians not taxed, are hereby declared to be
citizens of the United States"?
Answer: Howard feared that States could eventually impose a tax on
Indians, making them eligible for citizenship under the Fourteenth.
Because of the language "subject to the jurisdiction
thereof" required direct allegiance to the United States,
Indian's would be disqualified because they owed their allegiance to
their respective tribes which in return were considered foreign
It is also important to understand what the text of the clause
actually says: subject to the jurisdiction of the United States
and not any particular State jurisdiction. This is why laws at the
time were written to include both limits and jurisdiction
of the United States when speaking of aliens. Take for example U.S.
title XXX of 1875, sec 2165 where it states: "Any
alien who was residing within the limits and under the jurisdiction of
the United States..."
It was never considered that a foreigner within the limits of a
State was also automatically under the jurisdiction of the United
States at the same time: they were considered still under the
jurisdiction of their native country. Only time it could be said the
United States had any jurisdiction over a alien is when the alien
violates some U.S. law and the United States brings the alien under
U.S. jurisdiction through a process of law.
Supreme Court rulings that followed after the adoption of the
Fourteenth Amendment confirms the adopted understanding of the
Citizenship Clause beginning with the Slaughterhouse Cases in 1873
where the court held that the Fourteenth Amendment excludes the
children of aliens. Jumping to 1884, the court in Elk v. Wilkins 112
U.S. 94 (1884), held that he phrase "subject to the
jurisdiction" requires "direct and
immediate allegiance" to the United States, not just
physical location. This is confirmed by the legislative history of the
Fourteenth Amendment and the definition used by the Senate.
We will now focus on the rest of the first section of the
Understanding the limitations is important for one primary reason:
Bingham was a lawyer who did not always choose his words clearly to
describe what he was trying to say. Therefore, first step in
understanding the Fourteenth Amendment is to first uncover the
limitations that were clearly imposed by Bingham.
There can perhaps be no better starting point then in understanding
the limitations of the Amendment than in comparing the difference
between the initial proposed Amendment and that of the final accepted
Amendment that came out of the committee months later. Recall
Bingham's initial text draft:
During the debates of 1871 on enforcing the provisions of the
Fourteenth Amendment, lead perhaps to the best summation of the
differences between the rejected and later accepted Amendment between
James Garfield and John Bingham. During open debate on the House floor
over the significance between the two, and with Bingham attentively
listening (and often interrupting to make clarifications), Garfield
characterized Bingham's early rejected Amendment to having "brought
the power of Congress to bear directly upon the citizens, and
contained a clear grant of power to legislate directly for the
protection of life, liberty and property within the States."
Garfield then went on to characterize the accepted Amendment that
stands in the Constitution today as simply a limitation "imposed
upon the States but did not oust the jurisdiction of the State over
these subjects." That is, "excerpts its force
directly upon the States, laying restrictions and limitations upon
their power and enabling Congress to enforce these limitations."
Again, no one including Bingham objected to this characterization of
differences between the two Amendments.
Another significant limitation of the Amendment that aids in
properly understanding and interpreting it has to do with reserved
State rights. What is a reserved state right the reader might wonder?
A reserved State right is any right that is neither found in the US
Constitution nor expressly prohibited to the States. For example,
nothing in the Constitution prohibits local communities within the
States from establishing relationships with churches or religion --
only Congress is directly prohibited from establishing anything
religious through acts of legislation, and thus, Establishment is a
reserved State right because the Constitution only expressly
prohibited Congress and not the States.
Bingham knew from the initial resistance to his bill in February of
1866 that any attempt to trespass upon reserved State rights would
lead to certain defeat of the Amendment both in Congress and with the
State legislatures. Therefore, he had to make it clear throughout the
debates (and years later) that the Amendment would not arm Congress
with the power to usurp reserved State rights as evidenced by his own
Here Bingham repetitively makes clear the Fourteenth Amendment is
not a grant of power upon Congress to strike down State rights -- and
this is a very important limitation that allows States to enjoy the
rights that had been retained by them and their citizens. For example,
the States retained for themselves, in the words of Thomas Jefferson,
"the right of judging how far the licentiousness of speech,
and of the press, may be abridged without lessening their useful
freedom, and how far those abuses which cannot be separated from their
use, should be tolerated rather than the use be destroyed."
And Jefferson further adds, "they [States]
guarded against all abridgment, by the United States, of the freedom
of religious principles and exercises, and retained to themselves the
right of protecting the same, as this, stated by a law passed on the
general demand of its citizens, had already protected them from all
human restraint or interference."
What Jefferson is talking about is the "privileges or
immunities" of U.S. citizens in having the right to regulate
religion, speech and the press. Congress cannot deny U.S. citizens
guaranteed right to regulate religion, speech or the press through
their own State government because such an act of denial is a
violation all U.S. citizens "privileges or immunities"
to do so through the Tenth Amendment. Bingham understood this better
than anyone when he said the Fourteenth Amendment would not
take away from "any citizen
of any State any right that belongs to him under the Constitution."
There would have to be a deliberate attempt by a State to enact and
enforce a law to deny US citizens complete freedom of speech that has
no practical purpose other than to deny the freedom outright -- or a
attempt to silence speech that targets only a specific class of US
citizens based upon race. Non-citizens would have no constitutional
right to bring about a complaint of speech abridgment since the
privilege to do so is only given to US citizens under the Fourteenth.
Bingham had also said during the debates that he had entered "upon
no new construction," and "I
follow this day, in its letter and its spirit" of
the federal Constitution. So if we take Bingham's word at face value,
it clearly means there is no attempt on his part to usurp the rights
retained by the States and its citizens through the US Constitution.
This would be further supported through Bingham's quoting of James
Madison in saying, "The powers reserved to the
several States will extend to all objects, which concern the lives,
liberties and properties of the people."
It should be noted that when James Madison originally framed the
Bill of Rights he intended for them to be a direct prohibition
against the States just as with Congress. This of course was rejected,
and thus, is the rights States retained for themselves that Jefferson
It is a tremendous aid for anyone to understand and apply the
Fourteenth Amendment when they have a solid understanding of how the
words and phrases may have been understood and used by those who were
involved in its legislative process and ratification. We'll start with
a notorious phrase that has been badly distorted and abused: Due
Process of Law.
During the debates, Rep. Andrew Rogers asked Bingham point blank:
"what you mean by due process of law"? Bingham responded by
saying, "I reply to the gentleman, the courts have settled that
long ago, and the gentleman can go and read their decisions."
Well the Courts viewed due process up to the year 1866 as meaning
only one thing: procedural rules laid down in "the Constitution
itself." In other words, the deprivation of life, liberty, or
property simply meant the punishment for crime through due process of
law. The requirements of due process would be met by fair procedure,
including notice to the defendant and an open trial with the right to
counsel. This effectively limits due process only to court proceedings
(both criminal and civil) since the only procedures laid down
in the Bill of Rights pertaining to individuals is the procedure
rights of the accused before the law.
Such unambiguous understanding of due process is further supported
by Alexander Hamilton when he said: "The words 'due process' have
a precise technical import, and are only applicable to the process and
proceedings of the courts of justice; they can never be referred to an
act of legislature." It should also be pointed out that the
Fourteenth's "due process" merely mimics the Fifth
Amendment's due process and therefore the meaning of that clause in
the Fifth controls the meaning in the Fourteenth.
Because Bingham left a record indicating the understanding of the
meaning of the term "due process" at the time of framing,
expansive interpretations are forbidden under the theory of
"substantive due process." Bingham himself quoted Chief
Justice John Marshall as affirming that any new expansive powers that
are neither expressly granted, or enumerated in the Constitution, is
forbidden: "The Constitution of the United States is one of
limited and expressly delegated powers which can only be exercised as
granted, or in cases enumerated."
James Garfield confirms all the above when he summarized the
importance of the Fourteenth's due process clause:
[there] is no power in either the State or the
national government to deprive any person of those great fundamental
rights on which all true freedom rests, the rights of life, liberty
and property, except by due process of law; that is, by an impartial
trial according to the laws of the land.
Perhaps the most important definition Bingham provided us with was
when he equated "equal protection of the laws" to the
words of the Magna Charta 46th clause: "we will sell to no
man, we will not deny or delay to any man right or justice."
Essentially what the phrase meant to the Fourteenth Amendment's equal
protection clause, according to Bingham, is that No State should
"deny to any such person any
right secured to him by the laws and treaties of the United States or
of such State."
What this means is this: you cannot claim a equal protection
violation for a right not secured to you. If a right is only secured
to "citizens," than there can be no claim to equal
protection of that right by non-citizens. Law's which secure all
persons without some distinction, such as citizenship, is a equally
protected law for all persons -- such as laws that might center on
public safety, and certainly criminal justice because the States must
observe the Bill of Rights when it comes to depriving persons of their
life, liberty or property for a violation of law. Bingham confirms
this is the proper construction for the equal protection clause when
he said the following:
[T]he gentleman inquires, what does this mean [equal protection
of the laws]? It ought to have occurred to the gentleman that it
means that no State shall deny to any person within its jurisdiction
the equal protection of the Constitution of the United States, as
that Constitution is the supreme law of the land, and, of course,
that no State should deny to any such person any of the
rights which it guaranties to all men, nor should any State deny to
any such person any right secured to him either by the laws and
treaties of the United States or of such State.
Here Bingham confirms the interpretation of equal protection of the
laws. The rights which are guaranteed to all men are the procedures of
law as found in the Bill of Rights guaranteeing fair treatment in a
court of law before you can be deprived of life, liberty or property
for a violation of law -- so a State cannot, say, deny a public trial
to blacks because that would be a equal protection violation for the
reason a trial is a constitutional guarantee to all men. And of course
Bingham confirms the State is only obligated to equal protection in
regards to its own laws it actually secures to either all persons or
specific groups of persons -- like lawful residents.
And then we have the most influential man in Congress at the time,
Thaddeus Stevens, Chairman of the Committee on Reconstruction,
describing the meaning of equal protection of the laws this way:
"Whatever law punishes a white man for a crime shall
punish the black man precisely in the same way and to the same degree.
Whatever law protects the white man shall afford "equal"
protection to the black man."
Simply stated, due process and equal protection of the laws is
all about one thing and one thing only: Punishment of crimes against
life, liberty or property or, the protection from crimes against life,
liberty or property.
Bingham also had defined privileges and immunities as those rights
belonging to US citizens as expressly enumerated in the first
eight amendments of the Bill of Rights. He defined the word immunity
as a citizens "exemption from unequal burdens."
It is difficult nowadays to have any discussion of the Fourteenth
Amendment and not enter into a discussion of the Theory of
Incorporation. Probably the most misunderstood comment by John Bingham
that has helped fuel the controversy came some four years after the
Fourteenth Amendment had been adopted, when Bingham rhetorically
uttered: "These eight articles [Bill of Rights] I have shown
never were limitations upon the power of the States, until made so by
the Fourteenth Amendment."
But moments later Bingham then says, "that no State
shall abridge the privileges and immunities of citizens of the United
States, which are defined in the eight articles of amendment, and
which were not a limitations on the power of the States before the
fourteenth amendment made them limitations."
And then a few moments later says: "in this discussion
I have been necessarily compelled to speak of the powers of the
national government and of the powers of the States, and have referred
only incidentally to the provisions of the Constitution guarantying
rights, privileges, and immunities to citizens of the United States."
The only conclusion here that makes any sense and conforms with the
actual text of the Amendment is that he is using the phrase Bill of
Rights to broadly illustrate where the privileges or immunities of US
citizens the Fourteenth speaks of can be found defined.
Unfortunately, court justices like Hugo Black, refused to give
neither John Bingham nor the Fourteenth Amendment legislative history
a fair reading by basing entire jurisprudence on selected quotes used
out of context. To justice Black's credit, he did believe correctly
that the privileges and immunities of U.S. citizens were, as John
Bingham states, "chiefly defined in the first eight amendments to
the Constitution of the United States." But erred in assuming
Bingham meant for the Fourteenth Amendment to force the entire Bill of
Rights against the States jot for jot.
Whenever Bingham spoke of the "Bill of Rights," he was
not speaking of the entire provisions of the Bill of Rights to become
a equal limitation upon the States as with Congress, but speaking of
where the privileges or immunities of United States citizens could be
found defined. It is much easier to just refer to the privileges or
immunities as those found in the Bill of Rights rather than having to
recite each pertaining one over and over again.
Consider also what Bingham said on March 9, 1866: "...the
enforcement of the bill of rights, touching the life, liberty, and
property of every citizen..." See there? While he speaks in
general terms of enforcement of the Bill of Rights, he then qualifies
this general statement to specifically mean only those rights that
belong to citizens (touching the life, liberty and property of every
citizen), and not in the sense of the entire Bill of Rights jot for
Bingham, being an accomplished lawyer, would never had written the
Fourteenth Amendment the way he did if it was merely to force the
entire Bill of Rights against each State. Why go through the trouble
by repeating the 5th Amendment "due process" clause if the
entire Bill of Rights were to be a limitation upon the States? What is
the point in having two duplicate "due process" clauses?
Why would such a devoted Christian man, who after the adoption of
the Amendment voted favorably for a bill to promote textbooks of
Christian character in District of Columbia schools, or never to bring
up a discussion of enforcing the "Establishment Clause"
against the States during the entire legislative process? Furthermore,
consider the text of the Fourteenth Amendment as it is found in the
Constitution today -- speaks of privileges or immunities of US
citizens, due process and equal protection -- not Bill of Rights.
The ability to make or establish laws respecting religion is not a
privilege or immunity of a US citizen since US citizens do not
legislate and pass laws individually -- only legislative govt. bodies
whom are elected by US citizens collectively do. Because of this you
cannot make the Establishment Clause a limitation upon the States
through privileges or immunities because it is not a individual
privilege belonging to a US Citizen, which explains why the subject
never came up during the debates.
Chairman Thaddeus Stevens, when introducing Bingham's Amendment on
May, 8, 1866, didn't consider the first section important at all,
saying: "The second section I consider the most important in the
article." Well now, if the first section of the Amendment somehow
was intended to incorporate the Bill of Rights against the States WOULD
had made the first section the most important section of the entire
article (not to mention would had made for a real cat and dog fight to
pass such a thing in both the House and Senate.)
Recall Bingham pronounced over and over that his Amendment impairs
no rights that belonged to the States; you cannot apply the entire
Bill of Rights jot for jot against the States and not disturb some
reserved State right. Not only has this left the theory of
incorporation on life support for too many years -- but had been
declared by Bingham himself to be dead on arrival.
We now come to the enforcement clause, which is Section 5 that
reads: "The Congress shall have power to enforce, by
appropriate legislation, the provisions of this article."
The discussion so far has paved the way for the reader to better
understand how Bingham and the State legislatures who ratified the
Amendment understood how enforcement was intended to be carried out by
"appropriate legislation." We have learned through the text
and its history that the Fourteenth Amendment directly "excerpts
its force" upon the States with no power delegated to Congress to
exert any power over the States. Instead, Congress was delegated only
When it comes to privileges or immunities, the restriction and
enforcement is pretty self-evident and clear: Only when a law is
enacted and enforced would it might trigger review under the
Fourteenth Amendment. Because the Fourteenth Amendment was prohibited
from interfering with reserved State rights, most controversies
arising under the First Amendment is not enough to trigger Fourteenth
Amendment review unless there is a clear attempt to outright deny
speech or prohibit religious exercises, etc., through enacted State
laws for this purpose. Recall the chairman of the Joint Committee on
Reconstruction, which was responsible for the drafting and language of
the Fourteenth Amendment, Thaddeus Stevens, said:
[B]ut the Constitution limits only the actions of Congress, and
is not a limitation on the States. This amendment supplies that
defect, and allows Congress to correct the unjust legislation of the
Bingham follows up two days later to confirm the same thing:
[T]he great want of the citizens and stranger; protection by
national law from unconstitutional State enactment's, is supplied by
the first section of this amendment. That is the extent it hath, no
Here both Stevens and Bingham cut right to the chase and tells us
in clear language what the understanding the Joint Committee had in
regards to the scope of the Amendments enforcement: to
correct unjust State enactment's! What is important to
point out here is the purpose was to allow "Congress to
correct the unjust legislation of the States," conforms
gracefully and without conflict with the textual language of the
Amendment that says "no state shall make or enforce any
The keywords here are "make" and "enforce"
laws. In other words, if a State is not enforcing any laws that has
been made, there can be no Fourteenth Amendment conflict when it comes
to privileges or immunities. Next we come to the prohibition that
...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.
Here the keywords are "deprive" and "due
process." Combined as they are they could only mean one thing at
the time: the taking of life, liberty or property for violation of
law. Recall our earlier discussion on "due process" when
applied to a deprivation of either life, liberty, or property simply
meant the procedures leading to punishment. The requirements of
"due process" would be met by fair procedure, including
notice to the defendant and an open trial before a jury of peers.
Recall also "equal protection of the laws" was understood
to mean that no one was to be deprived of rights secured to them under
either laws, treaties or the Constitution. The only question that
arises under this prohibition is whether a person is being deprived by
State action of some right secured to them. An alien would not have an
equal protection argument if they were denied say; a driver’s
license or a free education since these are generally privileges
secured only to US citizens by the States.
With the above said, lets now turn to who is targeted for
punishment for violations of the provisions of section 1. If you
assume States get punished you would be in for a mild surprise.
Consider the following statements by Bingham:
Quote #1: [Y]ou have the express power to define the
punishment of treason; the express power to punish the
counterfeiting of coin or securities of the United States; the
express power to define and punish piracies and felonies committed
on the high seas, and offenses against the law of nations; exclusive
legislative power within the this District; express powers to govern
all Territories; but where is the express power to define and punish
crimes committed in any State by its official officers
in violation of the rights of citizens and persons as declared in
the Constitution? And from what expressly delegated power in the
Constitution can any such power be implied?
Quote #2: [P]assing the anti-slavery amendment, is there
any one prepared to say that the bill of rights confers express
legislative power on Congress to punish State officers
for a willful and corrupt disregard of their oaths and oppressive
and flagrantly unjust violations of the declared rights of every
citizen and every free man in every free State?
Quote #3: [q]uestion is, simply, whether you will give by
this [fourteenth] amendment to the people of the United States, the
power, by legislative enactment, to punish officials of
States for violation of the oaths enjoined upon them? That
is the question and the whole question.
Quote #4: [S]tate
legislature or State court, or State Executive, has
any right to deny protection to any free citizen of the United
States within their limits in the rights of life, liberty and
It should be apparent that the Fourteenth Amendment targeted only
State officers for enforcement and not private individuals. Consider
also that Bingham believed that the "United States
punishes men, not States, for a violation of its law."
In addressing a civil rights bill at the same time of his proposed
Fourteenth Amendment, Bingham had this to say:
[You] propose to make it a penal offense for the judges of the
States to obey the Constitution and laws of their States, and for
their obedience thereto to punish them by fine and imprisonment as
felons. I deny your power to do this. You cannot make and official
act, done under color of law, and without criminal intent and from
a sense of public duty, a crime.
In another statement highlighting the enforcement provisions of the
Amendment, Bingham says:
They [States] elect their legislatures; they enact their laws for
the punishment of crimes against life, liberty, or property; but in
the event of the adoption of this [fourteenth] amendment, if they
conspire together to enact laws refusing equal protection to life,
liberty, or property, the Congress is thereby vested with power to
hold them to answer before the bar of the national courts for the
violation of their oaths and of the rights of their fellow men.
Bingham spells out again the sole power sought for Congress was to
hold State officers to the bar of the national courts for willful
violation of their oaths against their fellow citizens -- not private
individuals. When he said, "conspire together," he was
referring to southern States coming together to conspire against newly
freed black slaves.
The court has attempted to circumvent the Fourteenth's limitations
by holding the States responsible for private conduct in such areas as
discrimination. This has been feeble at best because the Fourteenth
Amendment language and legislative history extends no such powers,
directly or indirectly over private conduct -- only does it with State
enforcement of enacted laws or from the denial of a right secured to
any person, such as a right to due process of law for the taking of
their life, liberty or property for a violation of law.
The phrase "appropriate legislation" meant to simply
declare through national laws that it was inappropriate for States to
make and enforce laws that could lead to a denial of a guaranteed
right or unequal protection of the laws by State officers in enforcing
such laws. Let's take a look at how Congress enforced the provisions
of Sec. 5 a few years later by the same people who were responsible
for the Amendment's passage. Below is H.R. 320, a proposed 1871 bill
to enforce the Fourteenth Amendment:
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That any person who,
under color of any law, statute, ordinance,
regulation, custom, or usage of any State, shall subject, or cause
to be subjected, any person within the jurisdiction of the United
States to the deprivation of any rights, privileges, or immunities
secured by the Constitution of the United States, shall, any such
law, statute, ordinance, regulation, custom, or usage of the State
to the contrary notwithstanding, be liable to the party injured in
any action at law, suit in equity, or other proper proceeding for
redress; such proceeding to be prosecuted in the several district or
circuit courts of the United States, with and subject to the same
rights of appeal, review upon error, and other remedies provided in
like cases in such courts, under the provisions of the act the ninth
of April, eighteen hundred and sixty-six, entitled "An act to
protect all persons in the United States in their civil rights, and
to furnish the means of their vindication," and the other
remedial laws of the United States which are in their nature
applicable in such cases.
Basically this reaffirms what should already be very apparent to
the reader: The Fourteenth Amendment targeted State actors under the
"color of law" while providing for remedy through
federal courts to any unconstitutional denial by the enforcement of
enacted laws. It is important to note that when addressing H.R. 320,
Bingham made this comment:
Mr. Speaker, this House may safely follow the example of the
makers of the Constitution and the builders of the Republic, by
passing laws for enforcing all the privileges and immunities of
citizens of the United States, as guarantied by the amended
Constitution and expressly enumerated in the Constitution.
Note the phrase "expressly enumerated"
here; if the right is not "expressly enumerated," then it
isn't a Fourteenth Amendment protected provision federal courts are
allowed to review under Section 5. If courts were allowed a free-hand
to find "new hidden" unremunerated rights than the entire
concept of reserved State rights would be rendered meanness and open
to judicial abuse -- perhaps leading to citizens being deprived of
their sacred right to determine for themselves what new protected
rights to accept.
We can summarize the above as follows:
1) The Fourteenth Amendment did not empower Congress to invade
reserved State rights or give Congress legislative power over
private conduct within the States.
2) The Fourteenth Amendment targeted only State officers for
possible punishment for unjust legislation and enforcement, not the
State itself or private parties.
3) Enforcement of the Fourteenth Amendment was limited to
providing remedy through federal courts to "correct unjust
legislation" of the States.
4) States retained all rights as they had enjoyed before the
adoption of the Fourteenth in defining and administering their laws,
no matter how unjust as long as their laws were equally applied to
all persons before a tribunal for either the protection or
punishment of laws against life, liberty or property
5) The words of James Madison as quoted by Bingham that the
"powers reserved to the several States will extend to all
objects which concern the lives, liberties and properties of the
people," was reaffirmed by Bingham.
6) Due process of law was inserted to highlight the principle
that no life, liberty or property should be taken without process of
law before a tribunal for any person.
7) Fourteenth Amendment provided neither direct or implied
jurisdiction over State Establishment issues to federal courts.
Knowing what we know now about the Amendment, it is clear how the
Fourteenth can be applied in every day life. The first question that
should always be whenever a controversy arises under the provisions of
the Fourteenth is whether the State is exercising a reserved State
right? If the answer is yes, and there is no enforcement of some
enacted law than that pretty much ends the discussion.
Next question should be: has there been a law made by a State that
when enforced denies someone some privilege, say, a right to speech?
If there is a enacted law involved, the question than is whether the
State is exercising a retained right to regulate, say speech or, is
the law made to simply deprive a certain class of citizens some
enumerated constitutional guarantee?
Remember that State rights were preserved by the Fourteenth
Amendment. The Fourteenth Amendment does not require that State laws
be fair or just, only that the laws secured to all persons be equally
applied to "all persons" and that punishment or protection
of life, liberty or property also must be equally applied to all
Example: A law that says no persons can walk in the park after
sundown must be enforced against all persons -- not selectively
allowing say, persons with red hair, while enforcing the law against
all other hair colors.
Additionally, a law that says only persons with red hair can be in
the park after sundown can be enforced against anyone except redheads,
and thus, can be enforced without running afoul with the equal
protection clause. The reason should be obvious by now: you cannot
complain of an unequal protection violation under Bingham's
construction for something that has not either been secured to you or,
has nothing to do with punishment or protection of life, liberty or
property. If there is to be a challenge it would have to come under
the States own Constitution or local laws because the Fourteenth
concerns itself with either the "punishment of crimes against
life, liberty, or property" or the protection against crimes of
life, liberty, or property.
Furthermore, a State cannot make a law that leads to unequal
punishment for the taking of life, liberty or property based upon hair
color, skin color, gender, etc. Example: A State cannot make a death
penalty for rape for black persons and only 10 years in jail for white
persons. The procedures of law found in the Bill of Rights is
considered a right belonging to all persons before they can be
deprived of life, liberty or property, and therefore, must be equally
applied to all.
Likewise, a State cannot enact a law that protects only white
persons against murder while ignoring blacks because the protection
against crimes of life, liberty and property must be enforced
"equally." People of a State are free to define what
liberties they choose to grant for their fellow citizens or
non-residents beyond the fundamental ones outlined in the Bill of
Rights and made a limitation upon them by the Fourteenth -- could
easily make it a "liberty" for anyone to be in any park
after sundown, for example. This is bedrock Fourteenth Amendment
Consider also that these basic principles is how visitors or
tourists from other countries are protected by our laws once here
against assault's on their life, the taken of their liberty (slavery)
or the taking of their personal property -- but at the same time
granting them no right under the Fourteenth to claim equal protection
of the laws to obtain a drivers license, vote, right to own firearms,
Medicare, etc. Securing of all person's safety in regards to their
life, liberty or property along with due process of the law for the
punishment of violations of our laws made criminal is what is demanded
under the Fourteenth Amendment's first section.
City ordinances generally do not fall under the Fourteenth
Amendment for a number of important reasons -- mainly because these
laws are not targeted towards individual criminal actions where
individuals stand to be deprived of life, liberty or property made
criminal -- but only targeted towards the safety, welfare or
preservation of the community as a whole. You cannot argue you have a
Fourteenth Amendment liberty to raise 100 hogs in your cul-de-sac
front yard when the framers could not find the liberty to a right to
vote and had to add a separate Amendment to secure this right.
I should also note that illegal alien apprehension has little
Fourteenth Amendment considerations. This is true mainly because the
objective of either local or federal government is the return of
alien's to their country of origin or, failing that, return to the
point were they had entered illegally. Generally speaking, local or
federal government do not look to impose punishment against either the
life, liberty or property of a alien, and the fact a alien has no
secured right under the US Constitution to illegally remain in the
country, the govt. can detain them till they can be removed and not
run afoul with either the due process or equal protection clauses.
On the other hand, if the government attempts to imprison, fine a
alien for being in the country illegally, that is, impose criminal
sanctions against a alien, then the alien would have to be afforded
due process before punishment for the crime of illegal entry is
Most all cases that could trigger Fourteenth Amendment
considerations will mostly deal with defendants before a court of law
since most of the privileges or immunities deals with process of law
before someone can be deprived of life, liberty or property. Due
process describes such a procedure as we have learned. So here, the
really big question that will likely always be raised is
whether the person has been accused of violating some criminal law and
stands to be deprived of life, liberty or property without due process
A presumed right to abortion won't make the burden under the
Fourteenth primarily because it is neither an protected enumerated
guarantee nor is it something that stands to be lost as punishment for
a crime. Since the Supreme Court has no enumerated right under the
Constitution to create new constitutional rights -- the right to
abortion falls squarely under State jurisdiction and its citizens.
Furthermore, if someone claims they are being deprived of equal
protection of the laws, the question than is what right that has been
secured to them by State law, treaty or the US Constitution is being
denied to them? Since the US Constitution was not intended to be the
peoples source for everyday individual rights and liberties, we
must than focus on local law. If it can be determined that a person is
being deprived of some right/law of the State that is intended for the
protection of life, liberty or property does the issue come under the
light of the Fourteenth Amendment.
The sole purpose of the first section of the Fourteenth Amendment
was to protect people against unconstitutional State enactment's while
also leaving the States their retained rights under their
constitutional compact. Because of this, a law or act that merely
appears to run afoul with the First Amendment is not enough. There
would have to be a clear attempt of outright denial targeted to a
specific class of citizens through legislative enactment and
enforcement because other wise a State is merely exercising a
protected reserved right.
And finally, the reader might wonder what about current federal
laws? Congress isn't exactly known to be a body of law when it comes
to exercising its limited constitutional grants of powers with little
oversight from the US Supreme Court. Consider the following opinion
delivered by justice Kennedy in City of Boerne v. P.F. Flores,
Archbishop of San Antonio (521 U.S. 507 (1997)):
Under our Constitution, the Federal Government is one of
enumerated powers. The judicial authority to determine the
constitutionality of laws, in cases and controversies, is based on
the premise that the "powers of the legislature are defined and
limited; and that those limits may not be mistaken, or forgotten,
the constitution is written." Marbury v. Madison, 5 U.S. 137
Unfortunately, the court like with Congress, only adheres to these
supreme principles when they find it convenient. Until the day comes
when we have sitting Supreme Court justices who will be willing to
seriously reconsider years of unconstitutional power expansion -- a
expansion with a $8 trillion (and growing) federal deficit to show for
constitutional abandonment -- can both Congress and the court begin to
say "we are a nation of law" with a straight face.