John O. Frank provides great information bringing specification that PAG’s need to know in enforcing Equal Protection rights and enjoying Equal Benefits of all laws and proceedings. In his work the Original Understanding of Equal Protection Laws he demonstrates in my opinion as to why the thirteenth Amendment prohibition against Badges, Incidents and Vestiges of Slavery must be invokved in conjunction with the Fourteenth Amendment Equal Protection Clause followed by the Civil Rights Acts legislating Equal Benefits of all laws and proceedings. It is clear beyond reasonable doubt that the Fourteenth Amendment was meant to enable Congress to legislate affirmatively in behalf of a racial group which a state might, because it was a racial group, choose not to protect from action of private persons. The major discussion of Congressional power under all of the new Amendments came in 1870 and 1871 with the enactment of the First and Second Enforcement Acts, and the Third Enforcement Act, usually known as the Ku Klux Act. Frank contends and I dare not challenge that The Thirteenth, Fourteenth, and Fifteenth Amendments were the new constitution which emerged from the second American Revolution.
Edmunds approached the problem more directly by pointing out that legislation must be aimed not merely at discriminatory law enforcement, but at discriminations for a reason forbidden by the clause. Congress, he explained, could not penalize interferences with the equal administration of justice if it were merely the result of, for example, a private feud, but only if it were because a man was “a Democrat, if you please, or because he was a Catholic, or because he was a Methodist, or because he was a Vermonter.”172 The answer which Hoar’s and Edmund’s contemporaries probably would have given to the question emerges from their observations. Congress could legislate to correct state failures to enforce their own laws where the failure was of considerable magnitude and where the reason for the failure was racial, religious, or perhaps political bias. Section one of the Fourteenth Amendment as it was thus passed contains the equal protection clause. Before the original meaning of it is discussed, we shall consider the source of the phrase; what men were associated with it; and why this particular language came into the Constitution at all. II. THE. GENESIS OF AN IDEA AND A PHRASE – “All men are created equal” and “equal protection of the Laws” are phrases which, though closely related, have had distinct histories and have served very different purposes in the course of slavery and freedom. Because of the first phrase, the Declaration of Independence became the rallying cry and the greatest verbal symbol of the abolitionists. With cheer- , ful disregard of the fact that it had been penned by slaveholders, the abolitionists pre-empted the “created equal” slogan so successfully that their adversaries were finally forced into head-on attack on the slogan itself and even on the Declaration.22 Like most great slogans, “created equal” provided no solution for concrete cases once slavery itself was abolished. For these cases, e.g., whether a freedman had a right to ride a street car, the abolitionists needed an instrument more precise than their historic broadside.
Recognizing the difference between a slogan and a proposition of law, Sumner said: Of Equality I shall speak, not as a sentiment, but as a principle. • . . Thus it is with all moral and political ideas. First appearing as a sentiment, they awake a noble impulse, filling the soul with generous sympathy, and encouraging to congenial effort. Slowly recognized, they finally pass into a formula, to be acted upon, to be applied, to be defended in the concerns of life, as principles.26 For the purpose of creating the “formula, to be acted upon, to be applied,” Sumner made the first known use in English of the phrase “equality before the law.”27 He discussed the origins of equality the sentiment, finding its traces in Herodotus, Seneca, and Milton,28 and then toqk up the ttansition into formula through the French Revolution and its predecessor philosophers. Diderot and Rousseau, he explained, had acclimated the French to the sentiment, and the Revolutionary Constitution in 1791 took a new step. Its first article declared, “Men are born and continue free and equal· in their rights,” thus marking the first occasion in which equality of rights was made a legal consequence of “created equal”. Sumner traced th.e rest of the French experience: the Constitution of February 1793, which ha4 declared “The law ought to be equal for all;” the Constitution of June 1793, providing “All men are equal by nature and before the law;” and finally. the memorable crisp phrase in the Charter of Louis Phillipe, “Frenchmen are equal before the law.” This principle of equality of rights, Sumner declared, was the real meaning of the Massachusetts Constitutional provision which gave equ~l rights to every human being.29 No distinctions whatsoever could validly be made because of race….
“He may be poor, weak, humble, or black-he may be of Caucasian, Jewish, Indian, or Ethiopian race-he may be of French, Gen;ta_n, ~nglis~, or Irish ex~ction; but before the Constitution of Massachusetts all these distinctions disappear. He IS not poor, weak humble, or black; nor is he Caucasian, Jew, Indian, or Ethiopian; nor is he French, Germ’an, English, or Irish; he is a MAN, the equal of all his fellow-men.” 2 SuMNEB, op. cit. supra note 3, at 341-42.
Two proposals were the direct parents of the equal protection clause. ·On December 6th, 1865, Representative Bingham of Ohio proposed an Amendnient authorizing Congress “to secure to all persons in every State of the Union equal protection in their rights, life, liberty, and property.”84 It is, so far as we know, the first use of the phrase “equal protectio1;1” in a proposed constitutional Amendment.
A. Eqttality in Cottrts and Commerce Under the pre-rebellion black codes, the free Negro’s position differed little from that of the slave, except that a freedman had the right to the fruits of his own labor, usually the right to hold personal property, and in a few states the right to hold real property.58 Also, he ranked a step above the slave in the law courts. The slave, of course, could not sue in the courts, since any rights of action arising out of transactions in which he was involved were the property of his master.59 The free Negro could own rights of action, but like a minor, could frequently enforce them only by a suit through a guardian or next friend, a white man; and he could be a witness only in actions where only Negroes were involved.60
In criminal law, the status of the free Negro was about on a par with that of the slave. Frequently statutes imposing liability on one imposed it on the other as well. Arson, burglary, mayhem (against a white person), rape or attempted rape (against a white person) were typical capital crimes both for slave and for free Negro.See LA. BLACK CoDE, CRIMINAL OFFENSES § 7 (1806) ; CoBB, op. cit. supra note 58, at 987Preaching the gospel, using insulting language to white’ persons, assembling together to learn to read and write: these ‘\vere typical misdemeanors for the Negro, slave or free.62 Except in capital cases, the Negro, slave or free, was tried by a jury of slaveholders, who could convict by a majority vote The black codes after the War perpetuated or created many discriminations in the criminal law by applying unequal penalties to Negroes for recognized offenses and by specifying offenses for Negroes only. 64 Laws which prohibited Negroes from keeping weapons or from selling liquor were typical of the latter. Examples of discriminatory penalties were the laws which made it a capital offense for a Negro to rape a white woman, or to assault a white woman with intent to rape, or the ingenious bit of foresight by which the South Carolina legislature made it a felony without benefit of clergy “for a person of color to have sexual intercourse with a white woman by personating ·her husband.”65 In addition to the discriminations of the criminal laws, post-war Black Codes hedged in the Negroes with a series of restraints on their business dealings of even the simplest form.
Though in many states the Negro could acquire property, Mississippi put sharp limitations on that right.60 But most restrictive were the provisions concerning contracts for personal service. Many statutes called for specific enforcement of labor contracts against freedmen, with provisions to facilitate capture should a freedman try to escape. Vagrancy laws made it a misdemeanor for a Negro to be without a long-term contract of employment; conviction was followed by a fine, payable by a white man who could then set the criminal to work for him until the benefactor had been completely re-imbursed for his generosity. Minors were remembered in compulsory apprenticeship laws which arranged for long-term instruction in the arts of hoeing and cotton-picking. Not infrequently there were provisions that the former owner should have first call upon the labor of an ex-slave.67 Congress of necessity had given considerable thought to the problems facing the Southern States. As arbiter of procedure for Federal Courts and as legislator for the District of Columbia, Congress had faced essentially the same problems in converting from a slave system to a free one. In 1862 Congressional action applieable to the District abolished slavery,68 repealed the Black Codes,69 and prohibited exclusion of witnesses on account of color.70 On July 2, 1864, there was passed Senator Sumner’s amendment to the Civil Appropriation Bill which provided that witnesses could no longer be excluded on account of color in the Federal courts.71 Congress began the uprooting of these codes outside the District of Columbia with the Civil Rights Act of 1866. It provided: … citizens, of every race and color … shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and pro_ceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwitbstanding.72
As can be seen, that Act dealt explicitly with the inequalities of the Black Codes in criminal and commercial law, and its principles passed into the equal protection clause. Indeed, Stevens occasionally defined Negro equality in terms of these obvious discriminations: ” … the same law which punishes one man shall punish any other for the same offense; .- .. the law which gives a verdict to one man shall render the same verdict to another, whether he is Dutch, Irish, or N egro.”73 He assured Congress when he presented the Fourteenth Amendment that Negroes would be subject·to equal punishments, and would receive equal “means of redress” and equal right to testify.74 The Act and the Amendment obliterated the commercial discriminations by giving Negroes equal rights to contract and to be subject to no vagrancy laws which did not apply to whites. Considerable doubt exists as to whether the equal protection clause was meant to confer equality in jury service. The Civil Rights Act of 1866, which was quite explicit in its language, said nothing of jury service; “equal benefit of all laws and proceedings for the security of person and property” was the only language under which jury service could conceivably come.
Representative Wilson, ‘floor leader for the bill, stated in debate that the Act would not affect ‘jury service.75 During the passage of the Fourteenth Amendment itself, no discussion of this point was had. Congress first acted to adrriit Negroes to juries in the District of Columbia in 1867,70 labelling its bill an “eqtial rights” measure, although it had enacted five years earlier a provision requiring colored persons there to be subject to the same laws as free whites.77 The Civil Rights Act of 1875 contained the first explicit provision fo~ non-discrimination by states in jury service, indicating a subsequent judgment by 1he authors of the Amendment that jury service was included.78 The Supreme Court promptly upheld the Act as within the equal protection clause.79 It seems ·f~r to conclude that, while Congress did not have jury service in mind in 1866 as a civil right, the language of the Amendment was broad enough to cover jury service in the apparent absence of any intent to the contrary.
Cases speedily came to lower courts testing the meaning of the Act, anti it was interpreted as expected. A Delaware court held that Negroes could not testify regardless of the Act,80 but Justice Swayne in a federal circuit court held to the contrary.81 George Ruby, a freedman beaten up by a New Orieans mob for teaching school, made history in Louisiana by being allowed to testify in the resultant assault case.82 The Attorney General of Tennessee declared that he would resist the Civil Rights Act by keeping Negroes out of the tippling·house and billiard trade; but the Memphis criminal court speedily overruled him with the pronouncement that “Negroes of Memphis may now ·open as many billiard saloons as they want.”S3 In its criminal law aspect, the clause was the broadest possible generalization. To some it was the American equivalent of the pledge of Magna ·Carta: “We will sell to no man, we will deny to no man, we will delay to no man right or justice.”84