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Introduction

Boyer and Samuel J.

Online Library of Liberty

All they needed to do was to keep it alive and exploit it in every way. Several broad constructions cannot, however, quickly be dismissed as calculated partisanship. Given the stated purposes of the Bill, the association of contracts with other property rights, authority to contract could be read as a license for intermarriage only by a strained construction. I am sure that the Senator is not prepared to go to that extent. It would be straining at a gnat to deduce from the omission to make such an exclusion that the Bill contemplated the abolition of miscegenation laws.

1 Introduction

That it leaves to the States to be determined each for itself. The positive explanations that the bill had restricted objectives are fortified by the fact that sweeping proposals to abolish all discriminatory classifications 28 repeatedly fell by the wayside, confirming that Congress with open eyes rejected a comprehensive ban against all discriminations. In the teeth of this history, to import into the Civil Rights Act views of abolitionists and opponents 36 that so plainly had been rejected, is to thwart, not to effectuate, the intention of its framers.

Subsequently, four defectors in the Senate could have defeated the Amendment. That amendment. Even the abolitionists shrank from complete equality. Indeed, the anguish most abolitionists experienced as to whether slaves should be granted social equality as well as political freedom is well documented. It is the object of this and the succeeding chapter to show that the framers chose words which aptly expressed, and throughout were wedded to, their limited purposes; that there is virtually no evidence that the framers meant by resort to those words to open goals beyond those specified in the Civil Rights Act and constitutionalized in the Amendment.

Analysis will be facilitated by a breakdown into subsidiary questions: What privileges were to be protected?

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Was the protection to be absolute, that is, to guarantee certain rights to all, or comparative, only to secure freedom from discrimination if those rights were granted? Do the words confer upon Congress a general power to legislate for the States or merely a power to correct State violations?

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The materials that bear upon these questions are so intermingled that it is not easy to disentangle them for separate discussion. Some repetition is therefore unavoidable, but an effort to isolate the several issues is well worth the cost. It would be little exaggerated to say that they were all but unprotected. Declared free by the Thirteenth Amendment, they continued to be treated like slaves, 14 so it was essential to insure that the laws which protected whites would also protect blacks from oppression.

In the words of Senator James W. It secures. The evidence points the other way.

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IV, Sec. Whatever law punishes a white man for a crime shall punish the black man precisely in the same way. Whatever law protects the white man shall afford equal protection to the black man. Whatever means of redress is afforded to one shall be afforded to all. Whatever law allows the white man to testify in court shall allow the man of color to do the same. These are great advantages over their present [Black] codes. I need not enumerate these partial and oppressive laws.


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Your civil rights bill secures the same thing. But it would not be wise to entangle the present proposition with that one. The one might drag down the other.

This bright dream has vanished. Senator Howard, a far less acute and careful lawyer than Stevens, delivered himself of a looser statement, but even he went on to qualify the general by his enumeration of particulars:. The last two clauses of the first section of the amendment disable a State from depriving. This abolishes all class legislation in the States and does away with the injustice of subjecting one caste of person 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. 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 different measure is to be meted out to the member of another caste. Bingham himself contributed a telling bit of evidence against an interpretation of equal protection in unlimited terms. Similar remarks were made by Wilson and Moulton.

Nothing in the debates indicates such a purpose. The framers sought only to secure to blacks the same specified rights as were enjoyed by whites; if whites did not have them there was no State duty to supply them to anyone, still less a congressional power to fill the gap.

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The heart of his argument is:. Even on the level of verbal analysis the argument is vulnerable. Their objectives were narrower. Again and again the framers stated that their purpose was to prevent one law for blacks, another for whites. In the beginning the Civil Rights Bill had provided:. There shall be no discrimination in civil rights or immunities.

A colored citizen shall not, because he is colored, be subjected to obligations, duties, pains and penalties from which other citizens are exempted. One race shall not be favored in this respect more than another. This is the spirit and scope Edition: current; Page: [ ] of the bill, and it does not go one step beyond.

Whatever law punishes a white man for a crime shall punish the black man precisely in the same way and to the same degree. Bingham, on whom tenBroek so often relies, is, we have seen, a confused, imprecise, and vacillating witness. How can one refute an axiom? Chief Justices. There is no inkling that in the intervening 75 years the North had become dissatisfied with the protection they were given by the States.

On the contrary, they reaffirmed their attachment to State sovereignty in the 39th Congress. The present generation would read back into the Amendment views that the framers clearly perceived the North would not accept. The power for that purpose was originally placed there, and it has never been surrendered to the United States.

The distinction between a prohibition of action and a grant of power was well understood by the 39th Congress. On the contrary, they are all restrictions of power. Textual analysis is richly confirmed by the legislative history. Its whole effect is not to confer or regulate rights, but to require that whatever of these enumerated rights and obligations are imposed by State laws shall.

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That is the extent it hath; no more. Powerful confirmation of such expressions is furnished by the jettisoning of the Bingham amendment H. The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities. Hotchkiss, added:. I desire to secure every privilege and every right to every citizen in the United States that. As I understand it, his object.

If this amendment secured that, I should vote for it very cheerfully today. I understand the amendment. I am unwilling that Congress shall have any such power. That Hale and Hotchkiss voiced the pervasive distrust of a general grant of power to Congress to legislate in the premises may also be gathered from the statement by James F.

The argument grasps at straws. It is a Edition: current; Page: [ ] singular approach to legislative history, shared by other proponents of the tenBroek view, to exalt the opposition and all but ignore the statement of objectives by the Republican leadership who carried the day. Section 5 would thus authorize nothing more than a corrective removal of prohibited state acts. Does not this interpretation render section 5 altogether nugatory?

TenBroek proves too much; on his reasoning a court equally could proceed without waiting for a general as distinguished from a corrective congressional law. James A.