protection. Edmunds replied that his proposal was simply a specification of one aspect of the House provision to make it clearer.'

166

165

Next, a Delaware Democrat asserted that Klan crimes in the South were being exaggerated to help Republicans carry the 1872 elections, and added that Congress had no power to enforce the Equal Protection Clause except against discriminatory state laws." Senate Pool of North Carolina, in rebuttal, reviewed the evidence of Klan-inspired violence in his state, and noted that not only had no klansman been indicted for it, but that a Democratic legislature had impeached the Republican governor for attempting to suppress these disorders with military force." Pool, who had authored the sixth section of the Enforcement Act of 1870,168 pointed out:

167

"When any State denies the protection of the laws to persons within its jurisdiction, it is competent for the Government of the United States to intervene and to afford to its citizens that protection. In the first place, it is the duty of the States to afford the protection of the laws to the citizens of the United States within their borders, and the United States Government can properly intervene only when that protection is refused."109

99 170

Pool added that states had the primary duty of protecting constitutional rights, reserving "the exercise of the national authority for those cases in which a State shall fail in such protection." He analyzed the three prohibitions in the first section of the Fourteenth Amendment, observing that the Privileges and Immunities Clause was a limitation against positive action only, and did not refer at all to failure to act. In his view the Due Process Clause was also a limitation only on positive judicial action. But the Equal Protection Clause was addressed to the executive branch of state governments and in his mind covered a failure to execute the laws protecting citizens.1

172

The next day Thurman, one of the ablest Democratic lawyers, addressed the Senate in opposition to the bill. He admitted that the first section, which gave persons deprived of constitutional rights under color of state law an original action in federal court,1 was constitutional, but opposed transferring such cases as impolitic. He pointed out that federal courts were few and far between, expensive to get to, and would probably differ among themselves because the language used was vague. He also objected that under the section suits would be permitted against state officials, including legislators and judges.13

Thurman next attacked the portion of the House bill dealing with private conspiracies to deny equal protection of the laws as vague. He said that federal district attorneys, grand juries, and district judges would find it incomprehensible. He added that insofar as it referred to state law it was beyond Congress' power to enact since the Fourteenth Amendment "gives us no authority at all to punish crimes against a State. If two or more individuals shall combine to prevent another individual from enjoying the equal protection of the laws, that is their individual act, that is no denial by the State of the equal protection of the laws."

99 174

Thurman asserted that the portion of the second section punishing conspiracies to prevent state authorities from granting equal protection was in excess of

105 Id. at 580.

166 Id. at 599-604 (Sen. Eli Saulsbury, Del.). See also id. at app. 239-247 (Sen. Thomas F. Bayard, D.-Del.).

167 Id. at 605-9.

168 16 Stat. 140 (1870).

180 42 (1) Globe 604 (1871).

170 Id. at 607.

171 Id. at 608. He pointed out:

"The protection of the laws can hardly be denied except by failure to execute them. While the laws are executed their protection is necessarily afforded. . . . The right to personal liberty or personal security can be protected only by the execution of the laws upon those who violate such rights. A failure to punish the offender is not only to deny to the person injured the protection of the laws, but to deprive him, in effect, of the rights themselves.

the right to the protection of the laws... is the most valuable of all rights. without which all others are worthless and all rights and all liberty but an empty name. To deny this greatest of all rights is expressly prohibited to the States as a breach of that primary duty imposed upon them by the national Constitution. Where any State, by commission or omission, denies this right to the protection of the laws, Congress may, by appropriate legislation, enforce and maintain it. But Congress must deal with individuals, not States. It must punish the offender against the rights of the citizen; for in no other way can protection of the laws be secured and its denial prevented." 17 This is now 42 U.S.C. Sec. 1983.

173 42 (1) Globe app. 216-7 (1871). See also id. at app. 220, where he inquired why federal judges would be more efficient at punishing crime than Republican state judges. 174 Id. at app. 218.

175

Congress' constitutional power because the amendment was a limitation on states alone, and did not allow Congress to punish offenses against state law. He made the same observation about conspiracies to obstruct justice of the state courts." He said that the Equal Protection Clause was similar to the negative limitations in Article One, Section Ten, which were to be enforced by a declaration by the federal judiciary that the state law in violation thereof was void.176

Senator Garrett Davis, a Kentucky Democrat, endorsed Thurman's argument, and attacked the bill as unconstitutional, despotic, and politically motivated. He said that Congress could only enforce the first section of the Fourteenth Amendment by passing laws in validating unconstitutional state statutes.'

180

177

181

Senator Arthur I. Boreman, a West Virginia Republican, once again recapitulated the evidence of Klan-sponsored crimes.178 He asserted that since the states were not protecting the constitutional rights of citizens, under the doctrine of Prigg v. Pennsylvania 179 Congress had a right to do so." A Florida Republican urged the bill to stop the assassination of prominent Republicans in his state, and a Nevada Republican read evidence of political crimes in North Carolina." In rebuttal, Blair brought up the many murders in Nevada, but the senators from that state drew a distinction on the grounds that they were not politically moivated. 183

182

Senator George Vickers, a Maryland Democratic lawyer, said that the bill usurped state powers to punish crime. He added that it was the exclusive right and duty of a state to protect its citizens, and that it would be absurd to assume that a state was in complicity with criminals to defeat its own laws. He declared that the first section of the Fourteenth Amendment only referred to state legislation. Vickers concluded by reading testimony that the South was quiet and orderly.18

Blair followed with a speech reiterating the argument that the Fourteenth Amendment only invalidated discriminatory state laws. He quoted from the 1866 debates to demonstrate this point, and adverted to the rejection of the first Bingham draft, previously discussed in the House by Farnsworth and Garfield. Turning to the fifth section, Blair reasoned:

"It cannot be supposed the enforcement section could apply to this [Equal Protection] clause without assuming that the State authorities were to be subjected to Congress. It is an injunction upon the States expressly, and its observance is required of the State authorities as officers of the State government; and if the fifth section applies to it, Congress would have the power to compel the State officials to do equal justice, as prescribed by Congress, and to punish them for failing to do so. . . . But it is not pretended that this power was given. to require anything whatever of the State officials . . . it is well known, has been decided to be unconstitutional in the case of Prigg v. Pennsylvania." 185

Blair then dealt with Boreman's argument that although Congress could not control state officials, under the doctrine of Prigg v. Pennsylvania if a state neglected to protect citizens Congress could do this itself through its own officers. Blair said that because of the difference in phraseology between the Fugitive Slave Clause and the Fourteenth Amendment, that case would not apply, probably the only completely sound portion of his argument."

186

The following morning Senator Carl Schurz, the prominent liberal Republican from Missouri, said that he credited the reports of Klan political crimes, and

175 Id. at app. 218-9.

176 Id. at app. 221.

177 Id. at 645-9.

178 Id. at app. 224-7. See also id. at 650 (Sen. Charles Sumner, R-Mass.).

179 41 U.S. (16 Pet.) 539 (1842).

180 42(1) Globe app. 229 (1871).

181 Id. at 653-5 (Sen. Thomas W. Osborn). See also id. at 655-6 (Sen. Frederick A. Sawyer, R.-N.C.); id. at 666 (Sen. George E. Spencer, R.-Ala.).

182 Id. at 656 (Sen. James W. Nye).

183 Id. at 657-660.

184 Id. at 660-3.

185 Id. at app. 231.

188 Ibid. Blair said:

"The construction put on the second clause at the second section of the fourth article, in reference to fugitive slaves, is relied on to sustain this view, But there is no analogy whatever between that clause and that under consideration. That clause enjoined no duty whatever upon State officials, and the Supreme Court held, in Prigg vs. Pennsylvania. 16 Peters. 539, that the legislation required by it was required exclusively of Congress. Here the duty enjoined by the clause in question is exclusively upon the State and the State officials, and it cannot be supposed either that these officials were subordinated to Congress or that these duties might be devolved upon United States officials without violating the fundamental principles on which our system of government proceeds."

attributed them to southern anti-reconstruction sentiment, which made state officials ignore them. He added that he opposed the bill both because he deemed parts of it unconstitutional and dangerous to liberty, and because he thought that more laws would not cure the problem. He counseled a conciliatory policy towards the South.15

187

Edmunds made the closing speech for the bill. He commenced by urging that the federal government owed a duty to protect people in the South to "the uttermost bound. I mean of course of its constitutional power. . . ." 189 He cited Cohens v. Virginia 189 and Prigg v. Pennsylvania 100 for the proposition that the federal government could enforce the Constitution directly on individuals even when it was dealing with a negative limitation on state power. As an example, he gave a state which in violation of the Constitution entered into a treaty with a foreign government. In such a case, the only way the federal government could enforce the negative prohibition was by having the federal courts issue process against state officers acting under the invalid treaty, in his view. Edmunds also said that if one man reenslaved another under authority of a state law which violated the Thirteenth Amendment, Congress would not have to make war on the state, but could punish the man under its authority to enforce the amendment.19

192

181

Edmunds continued by pointing out that the Privileges and Immunities Clause not only forbids the making of an unconstitutional law, but also its enforcement, and that since only the executive and judiciary can enforce laws, the provision must be addressed to them as well as the legislature. He likewise reasoned that the other clauses of the first section of the Fourteenth Amendment applied to all departments of government. Turning to the Equal Protection Clause, he observed that "protection of law" could only be afforded by punishing criminals who violate the law. The word "deny" he construed as being "negative in form, [but] it is affirmative in its nature and character." Edmunds asserted that it was a requirement that states afford such protection, and when they failed to do so, as he deemed that they were doing, Congress could intervene to afford the protection.10 He concluded by observing that crimes in the South were not like ordinary crimes, born of malice or greed, but were part of a systematic plan to kill or drive out white Republicans, and drive Negro Republicans from the polls.194 Then, after the committee amendments were agreed to,185 the bill was passed, with the large majority of Republicans voting for it, the ocratic minority voting against it, and a handful of Republicans, including Trumbull, also voting against it.196

4. THE SHERMAN AMENDMENT

Dem

A. Senate Debate

At the very close of the debate, right before the voting, Senator John Sherman, the pragmatic Ohio Republican lawyer, introduced an amendment which he said was "copied from the law of England that has been in force six hundred years," and was still in force. The amendment provided that if any person was killed

187 Id. at 686-690.

188 Id. at 691.

197

189 19 U.S. (6 Wheat.) 264 (1821).

100 41 U.S. (16 Pet.) 539 (1842).

191 42 (1) Globe 692 (1871). Edmunds said: "Whenever the Constitution imposes a duty or a prohibition, and it becomes necessary to make it effectual, the Government always has, and it always must, short of warfare, go directly to the thing itself. take hold of the citizen." He added: this Constitution has always been a Constitution of the people and has in a thousand ways provided for the protection of the people, prohibiting action to States, and so it has, been applied to the people directly to effect its purposes and to defend its powers, and wherever and whenever that occasion has arisen it has always been done precisely upon the principles that this bill contains, that of dealing with the people, that of enacting laws, and never that of either advice or protest, warfare or proclamation, dealing with the States." Id. at 693-4. See also id. at

695.

102 Id. at 696.

193 Id. at 696-7. Edmunds said: "When criminals go unpunished by the score, by the hundred, and by the thousand, when justice sits silent in her temple in the States, or is driven from it altogether.. the Government of the whole people, through their laws and tribunals, takes in its hand this ancient monument and guarantee of justice now found in its Constitution and applies it as it always has been applied." Id. at 697.

194 Id. at 702.

195 Id. at 702-5.

190 Id. at 709.

197 Id. at 705.

or injured, or any property was damaged, by a riot designed to deprive anyone of his constitutional rights, or deter him from exercising such rights, the person damnified, or his legal representative if dead, could recover compensation in federal court against the county, city, or parish in which the riot occurred, and levy execution on the property of the local government, and that government could in turn recover what they paid against the rioters.19 198 The amendment was agreed to by a vote of 39 Republicans to 25 Democrats and Republicans. Among the eleven Republicans voting nay were Senators Frelinghuysen, Morrill of Maine, and Trumbull."

200

199

When the Senate bill reached the House, Shellabarger asked it to non-concur in the Sherman amendment, and to concur in all of the other Senate amendments except one. By virtually a party-line vote, the House concurred in the amendment making obstruction of justice in state courts with intent to deny equal protection a federal offense." Most of the other Senate amendments were likewise agreed to, but the Sherman amendment was voted down by the lopsided margin of 45 to 132.202

201

The conference committee to which the Sherman amendment was sent reported it back with a somewhat altered remedy, which provided that the ordinary remedies against municipalities must be used. It also required that the party injured first attempt to collect from the rioters, and only if they could not be found, or damages could not be collected from them, the municipality would pay as a guarantor." Edmunds explained the legal basis of this section as follows:

203

"It is said that the United States cannot proceed against a municipality, either a county, town, or city, because they are the creation of State law; and therefore we cannot act upon them in their organized capacity at all. I will merely say in reply to that, what seems to me to be a perfectly conclusive answer, aside from the answers that would exist at common law, that the Constitution declares that it shall be the duty of the State to give to everybody the equal and complete protection of its laws; and where, therefore, there is a State organism, as a county, which is intrusted with the local administration of justice, which is intrusted with the local preservation of peace, as every city, county, and parish in the country is in our autonomy . . . then this clause in the Constitution which speaks of the protection which the States must afford to their inhabitants equally under the law, to preserve them against riots and tumults, does speak, . . . to the municipal authorities existing under the State law directly; and when, therefore, they fail to perform the duty of protection, which the theory of this law implies that they are bound to perform, against tumult and riot, then the Constitution has declared that Congress, by appropriate legislation, may apply to them the duty of making reimbursement."

19 204

Edmunds reasoned that if a local government refused protection they ought to pay the damages occasioned by their unconstitutional denial. He added that where the municipality had a duty to suppress the riot and did not do so, it ought to compensate the victim for its denial of protection out of its treasury, or raise taxes for this purpose. Senator Roscoe Conkling, a New York Republican lawyer, interrupted to inquire whether Edmunds meant that Congress could, under the Fourteenth Amendment, deal with counties and cities directly, obligating them to afford equal protection and enforce the amendment, and could thus "short cut" dealing with states, and Edmunds replied affirmatively."

206

203

Trumbull then opposed the Sherman amendment, first on the ground that one of the clauses referred to Fifteenth Amendment rights in an ambiguous fashion, and generally, because the federal government had no constitutional authority to impose liability on local units of government." Sherman defended it on the ground that it was the only way to interest local inhabitants in preserving law and order. Adverting to the fact that grand jurors would not indict nor would petit jurors convict for political crimes in the South, he cited medieval and more modern English statutes, and English and New York cases, to show that impos

198 Id. at 704.

199 Id. at 705. 200 Id. at 723.

2m Id. at 724.

202 Id. at 724-5.

203 Id. at 751, 755-6.

204 Id. at 756.

205 Id. at 757.

208 Id. at 758-9.

ing damages on the municipality is an incentive to law enforcement. He added that the section was constitutional because the federal government had "the same power of legislation to punish riots, where those riots seek to deprive a man of a right conferred by the Constitution of the United States, that any state can have." Sherman said that Congress had express power to pass appropriate legislation to do this, and since a state could make a county liable in damages to secure law enforcement, Congress could also do so. He concluded that hardly one riot in a hundred would come within the section, but "if the riot is aimed at . . . the power of the United States to protect its citizens," Congress could interfere.207 Sherman concluded that mulcting the property owners of the South for Klan-inspired violence would induce them to enforce the laws.2

208

209

Several Democrats attacked the Sherman provision as imposing liability on municipalities without fault, and as risking the bankruptcy and consequent stoppage of local government." Thurman added that the action of a municipality or county was not state action, and there would be more constitutional justification in requiring the state treasury to pay damages than in imposing liability on local government."

211

210

Morton's reply was to sneer at Democratic constitutional qualms on the grounds that the Democrats had always attacked every reconstruction measure as unconstitutional. Frelinghuysen said that he was against the Sherman amendment for the reasons given by Thurman, but that he would vote for the bill anway 21 Frelinghuysen noted that the Judiciary Committee had been equally divided on the amendment. He added that the Fourteenth Amendment did not give Congress the power to tax or lay obligations on municipalities, which remained exclusively under state control. He declared:

"But I doubt the constitutionality of the amendment. This General Government, as I understand it, deals with States and with citizens. It does not know such things as towns, parishes, and counties. They are the integral parts of States; they are entirely under the government of the States as political corporations, and the Constitution of the United States recognizes no relation between the Federal Government and these subordinate political corporations." Senator Garrett Davis, a Kentucky Democrat, also asserted that the federal government had no power to make it a federal crime to conspire to violate state laws. After another peroration against the unconstitutional military despotism which Davis said the bill would create, the Senate approved the conference report by a vote of 32 to 16. Only a handful of Republicans opposed it, including Senator William Sprague, a Rhode Island Republican who had voted for the Fourteenth Amendment. Trumbell was also paired against it."

214

217

B. House Objections

215

Shellabarger opened discussion in the House by reporting the insistence of the Senate on the Sherman Amendment.210 He cited the case of Darlington v. New York, decided by the New York Court of Appeals, for the legality of imposing liabilities on cities in cases of riot. He noted that the New York statute was similar in principle to the Sherman Amendment, so that the only question was whether Congress could directly impose such liability. Shellabarger

207 Id. at 760. He added that Congress could suppress a mob which was rioting to prevent a person from exercising a constitutional right. Id. at 761.

208 Ibid.

200 Id. at 762-5, 770-2, 776 (Sen. Stevenson, Casserly, Davis. Thurman, and Bayard). 210 Id. at 772.

211 Id. at 773-4.

212 Id. at 776-7.

213 Id. at 777. He added:

"We deal with States; we deal with the citizens; but I do not see in that [Fourteenth] amendment anything which authorizes the Congress of the United States to regulate the police regulations of the cities and counties of New York and New Jersey. We must remember that we are legislating for this whole nation, that we are legislating for all time, and we must touch with care the framework of our Government."

214 Ibid.

215 Id. at 779.

216 Id. at 751, where he informed the House:

"The Senate I need not say was exceedingly earnest and positive in insisting there should be something of the character retained in the bill. and it was impracticable to procure the yielding of the Senate from that in some shape."

217 31 N.Y. 164 (1865).