While the events in the preceding chapter were transpiring, a joint committee on Reconstruction were making an inquiry into the condition of the ex-Confederate States in order to determine whether they or any of them were entitled to immediate representation in Congress. It consisted of Senators Fessenden, Grimes, Harris, Howard, Williams, and Johnson, and Representatives Stevens, Washburne, of Illinois, Morrill, of Vermont, Bingham, Conkling, Boutwell, Blow, Rogers, and Grider. Senator Reverdy Johnson and Representatives Rogers and Grider were Democrats. All the others were Republicans. There was a preponderance of conservatives on the committee. Senator Fessenden was the chairman, and his selection for the place marked him as princeps senatus in the estimation of his colleagues.
While the Civil Rights Bill was pending in the House, we have seen that Bingham, of Ohio, made a speech against it and voted against it, holding it to be unconstitutional. He had supported the Freedmen's Bureau Bill because it applied only to states in the inchoate condition which then existed. It was to be inoperative in any state, when restored to its constitutional relations with the Union. The Civil Rights Bill, on the other hand, was to apply to the whole country, North and South, without limit as to time, and to affect the civil and criminal code of every State Government. He held that there was no constitutional warrant for this, either in the Thirteenth Amendment or elsewhere. In order to cure the supposed defect, Bingham proposed to the Reconstruction Committee a new constitutional amendment in these words:
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 of citizens in the several states, and to all persons in the several states equal protection in the rights of life, liberty, and property.
This was agreed to by the committee, but before it was reported to the House, Stevens presented a series of amendments consisting of five sections which had been prepared by Robert Dale Owen, a distinguished publicist, who was not a member of the Congress. This series had met Stevens's approval, and after some delay and some changes it was adopted by the committee. Bingham then withdrew his own proposed amendment and offered the following in place of it, which was adopted as section one:
No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.
The difference between this provision and the first one proposed by Bingham was the whole difference between giving Congress power to pass laws for the administration of justice in the states and merely prohibiting the states from making discriminations between citizens. There was no definition of citizenship in the amendment as reported by the joint committee. Apparently they relied upon the Civil Rights Act, which had been passed over the President's veto, to supply that definition, but shortly before the final vote was taken in the Senate, Howard, who had charge of the measure in the temporary illness of Fessenden, proposed the following words to be placed at the beginning of the first section.
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.
The reason for adopting this clause was to validate the corresponding part of the Civil Rights Act and put it beyond repeal, in the event that the Republicans should at some future time lose control of Congress.
In addition to the first section, as shown above, the amendment provided that Representatives should be apportioned among the several states according to population, but that when the right to vote was denied in any state to any of the male inhabitants who were twenty-one years of age and citizens of the United States, except for rebellion or other crime, the representation of such state in Congress and the Electoral College should be proportionately reduced. Also that no person should hold any office under the United States or any state who, having previously taken an oath to support the Constitution of the United States, had engaged in insurrection or rebellion against the same, but that Congress might, by a two-thirds vote, remove such disability. Also that the validity of the public debt of the United States should not be questioned, but that no debt incurred in aid of insurrection or rebellion should ever be paid by the United States or any state. The concluding section provided that Congress should have power to enforce by appropriate legislation the provisions of the article.