Primary Source: Jacob Howard, Speech Introducing the Fourteenth Amendment to the Senate (1866)

Michigan Senator Jacob Howard was a leading Republican in the Reconstruction Congress. He helped draft and pass the 13th Amendment, abolishing slavery. He also served on the Joint Committee on Reconstruction and supported the Civil Rights Act of 1866—our nation’s first major civil right law. Most importantly, when Senator William Pitt Fessenden, Chair of the Joint Committee on Reconstruction, fell ill, Howard took over as the chief spokesperson for the 14th Amendment in the Senate. In this new role, Howard introduced this transformational amendment before a packed Senate gallery on May 23, 1866. His speech was published on the front pages of various newspapers, including The New York Times and The New York Herald.

In his speech, he offered a powerful vision of nationally protected rights—drawing on Justice Bushrod Washington’s influential circuit court opinion in Corfield v. Coryell (1823) and exploring the “privileges or immunities” of U.S. citizenship that the new amendment would protect against abuses by the states. As Howard argued, these “privileges or immunities” of U.S. citizenship included key liberties enshrined in the Bill of Rights. While the original Bill of Rights only applied to abuses by the national government, Howard explained that the 14th Amendment would extend those protections to cover state abuses.

[The Fourteenth Amendment’s Privileges or Immunities Clause] is a general prohibition upon all the States, as such, from abridging the privileges and immunities of the citizens of the United States. That is its first clause, and I regard it as very important. It also prohibits each one of the States from depriving any person of life, liberty, or property without due process of law, or denying to any person within the jurisdiction of State the equal protection of its laws. . . .

[The Privileges or Immunities Clause protects] the personal rights guaranteed and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances; a right appertaining to each and all of the people; the right to keep and to bear arms; the right to be exempted from the quartering of soldiers in a house without consent of the owner; the right to be exempt from unreasonable searches and seizures, and from any search or seizure except by virtue of a warrant issued upon a formal oath or affidavit; the right of an accused person to be informed of the nature of the accusation against him, and his right to be tried by an impartial jury of the vicinage; and also the right to be secure against excessive bail and against cruel and unusual punishments. . . .

Now, sir, there is no power given in the Constitution to enforce and to carry out any of these guarantees. They are not powers granted by the Constitution to Congress, and of course do not come within the sweeping clause of the Constitution authorizing Congress to pass all laws necessary and proper for carrying out the foregoing or granted powers, but they stand simply as a bill of rights in the Constitution, without power on the part of Congress to give them full effect; while at the same time the States are not restrained from violating the principles embraced in them except by their own local constitutions, which may be altered year to year.

The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees. How will it be done under the present amendment? As I have remarked, they are not powers granted to Congress, and therefore it is necessary, if they are to be effectuated and enforced, as they assuredly ought to be, that additional power should be given to Congress to that end. This is done by the fifth section of this amendment, which declares that “the Congress shall have power to enforce by appropriate legislation the provisions of this article.” Here is a direct affirmative delegation of power to Congress to carry out all the principles of all these guarantees, a power not found in the Constitution.