Legal historians commonly refer to the historical “silence” surrounding the adoption of the Fourteenth Amendment’s Privileges or Immunities Clause. By this they mean the relatively few references to the clause in the state ratifying assemblies. In fact, there was a robust conversation about the proposal to nationalize American privileges and immunities. Scholars have just been looking in the wrong place. The discussion occurred out on the campaign trail as Republicans and Democrats struggled to prevail in the congressional elections of 1866.
Both Democrats and Republicans made the Fourteenth Amendment the central focus of their campaigns that summer and fall. Republicans insisted that states be forced to protect the rights of national citizenship, and Democrats insisted that the amendment was neither necessary nor wise. In the middle of this grand debate, an event occurred in the city of New Orleans which not only decisively turned the country in favor of adopting the Fourteenth Amendment, but also significantly illuminates the original public understanding of the Privileges or Immunities Clause.
Understanding the political impact of the New Orleans riot requires some background on the issue that so riveted the country that year: the proposed Fourteenth Amendment to the U.S. Constitution. In the early months of 1866, the “rump” members of the 39th Congress (members who remained in the Union during the Civil War) framed an amendment that, among other things, required the states to protect “the privileges or immunities of citizens of the United States.” The man who drafted this clause, John Bingham, repeatedly reminded his colleagues that his efforts were directed at forcing the states to respect the Bill of Rights; an omission in the original Constitution which Bingham termed “the want of the Republic.” In the Senate, Jacob Howard explained that the proposed Privileges or Immunities Clause would protect constitutionally enumerated rights such as those guarded by the Comity Clause and listed in the first eight amendments (the Bill of Rights).
Proposing the amendment was one thing, getting it ratified was another. At almost the same moment Congress announced its proposal, President Andrew Johnson announced his opposition. Johnson insisted that the rump Congress had no legitimate authority to submit a proposed amendment, and that such important matters must wait until the readmission of the formerly rebellious southern States. Democrats quickly echoed Johnson’s opposition and called on the electorate to repudiate the Republicans and their Fourteenth Amendment at the polls. According to Johnson and the Democrats, not only was the proposal illegitimate, it was unnecessary: the states were both willing and able to protect the rights listed in the first eight amendments.
The Democrats’ argument exploded that July in a bloody riot in New Orleans. Louisiana freedmen had assembled in a convention to discuss amending the state constitution. In response, local officials organized an attack on the convention that left 40 freedmen dead, with hundreds more wounded. Instead of condemning the attacks, Johnson encouraged local officials to suppress any further “illegal assemblies,” and blamed the Republicans for encouraging the freedmen to engage in an inflammatory assembly.
Johnson’s response was a huge political blunder. Newspapers around the country reported the massacre and detailed the violent suppression of free speech and political assembly by Louisiana officials. Republicans mocked the Democrats’ assertion that state officials could be trusted to protect constitutional liberties, and they repeatedly cited the riot of New Orleans as illustrating the need for an amendment protecting the rights of speech and assembly against recalcitrant southern state officials. That fall, Republicans won a landslide victory and secured the political capital necessary to push through the ratification of the Fourteenth Amendment.
In 1866, there was anything but “silence” regarding the meaning and necessity of protecting the rights of national citizenship. American newspapers in every state in the union generated a constant stream of reports on the political debate over the need to protect American privileges and immunities. No one disputed that the amendment would apply the Bill of Rights against the states; the question was whether it was proper to apply the bill against the states. For example, as conservative commentator S.S. Nicholas ruefully wrote not long after Congress adopted the proposed Fourteenth Amendment:
The bill of rights, or what are termed the guaranties of liberty, contained in the Federal Constitution, have none of them any sort of application to or bearing upon the State governments, but are solely prohibitions or restrictions upon the Federal Government. The recent attempt in Congress to treat them as guaranties against the State governments, with an accompanying incidental power to enforce the guaranties, is a surprising evidence of stolid ignorance of Constitutional law, or of a shameless effort to impose upon the ignorant.
Ignorant or not, the Republicans prevailed, due in large part to a tragic riot in New Orleans and its real-life example of why states must be bound to protect the rights of national citizenship. As The New York Times reported soon after the Republican victory:
The elections are now over. The country has decided between the policy of the President and Congress. . . . The one great issue really settled is, that the people will not lose the fruits of the victory won in the suppression of the rebellion. They demand and will have protection for every citizen of the United States, everywhere within the national jurisdiction—full and complete protection in the enjoyment of life, liberty and property, the pursuit of happiness, the right to speak and write his sentiments, regardless of localities; to keep and bear arms in his own defence, to be tried and sustained in every way as an equal, without the distinction to race, condition or color. These are the demands; these the securities required.
It would take some time and additional legislation (see the first and second Reconstruction Acts) before the Fourteenth Amendment formally became part of our fundamental law. The public response to the New Orleans riot and the Republican victory at the polls, however, made the final outcome inevitable.
I explore the political debates of 1866 and the impact of the New Orleans riot in chapter four of my new book, “The Fourteenth Amendment and the Privileges and Immunities of American Citizenship.”
Next: Does the Fourteenth Amendment protect unenumerated rights?