Race Distinctions in American LawStephenson, Gilbert Thomas
History
Race Distinctions in American Law
Stephenson, Gilbert Thomas
African Americans -- Politics and government; Law -- United States -- History; United States -- Race relations
The Civil Rights Bill of 1866 was practically superseded by the first
section of the Fourteenth Amendment, ratified by thirty-six States and
declared operative July 28, 1868. This section reads as follows: “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, or deny to any person within its
jurisdiction the equal protection of the laws.”
Mr. Flack[221] says that the purpose in the adoption of this Amendment
was (1) to make the Bill of Rights (the first eight Amendments) binding
upon the States as well as upon the Nation; (2) to give validity to the
Civil Rights Bill of 1866; and (3) to declare who were citizens of the
United States. As he shows by an analysis of the debates in Congress,
the constitutionality of the Civil Rights Bill of 1866 was doubted by
many of its able advocates, and it was natural that they should desire
to make their tenets secure by incorporating them into the Constitution
itself. It is worth remarking that on May 1, 1870, the Civil Rights Bill
of 1866 was practically re-enacted.[222]
The words “Negro,” “race,” or “color” do not appear in the first section
of the Fourteenth Amendment; but a study of the speeches before the
House and Senate would show that the legislators had the Negro primarily
in mind, and so the court understood. In the Slaughter-House Cases[223]
of 1872, cases not having to do with the Negro in the slightest degree,
Mr. Justice Miller gave an interpretation of the Fourteenth Amendment
which has stood as a landmark. He said: “... on the most casual
examination of the language of these Amendments [Thirteenth, Fourteenth,
and Fifteenth], no one can fail to be impressed with the one pervading
purpose found in them all, laying at the foundation of each, and without
which none of them would have been even suggested; we mean the freedom
of the slave race, the security and firm establishment of that freedom,
and the protection of the newly-made freeman and citizen from the
oppressions of those who had formerly exercised unlimited dominion over
him. It is true that only the Fifteenth Amendment, in terms, mentions
the Negro by speaking of his color and his slavery. But it is just as
true that each of the other articles were addressed to the grievances of
that race, and designed to remedy them as the Fifteenth. We do not say
that no one else but the Negro can share in their protection.... But we
do say ... that in any fair and just construction of any section or
phrase of these Amendments, it is necessary to look to the purpose which
we have said was the pervading spirit of them all, the evil which they
were designed to remedy, and the process of continued addition to the
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