House Report No. 22 Summarizing 14th & 15th Amendments

Report of the Committee on the Judiciary of the House of Representatives

1871, January 30—Mr. BINGHAM, from the Committee on the Judiciary, to which was referred the memorial of Victoria C. Woodhull, made the following report; which was recommitted and ordered printed:

The memorialist asks the enactment of a law by Congress which shall secure to citizens of the United States in the several States the right to vote “without regard to sex.” Since the adoption of the fourteenth amendment of the Constitution there is no longer any reason to doubt that 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; for that is the express declaration of the amendment.

The clause of the fourteenth amendment, “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” does not, in the opinion of the committee, refer to privileges and immunities of citizens of the United States other than those privileges and immunities embraced in the original text of the Constitution, article four, section two. The fourteenth, it is believed, did not add to the privileges or immunities before mentioned, but was deemed necessary for their enforcement as an express limitation upon the powers of the States. It had been judicially determined that the first eight articles of amendment of the Constitution were not limitations on the power of the States, and it was apprehended that the same might be held of the provision of the second section, fourth article.

To remedy this defect of the Constitution, the express limitations upon the States contained in the first section of the fourteenth amendment, together with the grant of power in Congress to enforce them by legislation, were incorporated in the Constitution. The words “citizens of the United States,” and “citizens of the States,” as employed in the fourteenth amendment, did not change or modify the relations of citizens of the State and nation as they existed under the original Constitution.

Attorney General Bates gave the opinion that the Constitution uses the word “citizen” only to express the political quality of the individual in his relation to the nation; to declare that he is a member of the body-politic, and bound to it by the reciprocal obligation of allegiance on the one side and protection on the other. The phrase “a citizen of the United States,” without addition or qualification, means neither more nor less than a member of the nation. (Opinion of Attorney General Bates on citizenship.)

The Supreme Court of the Unites States has ruled that, according to the express words and clear meaning of the second section, fourth article of the Constitution, no privileges are secured by it except those which belong to citizenship. (Conner et al. vs. Elliott et al., 18 Howard, 593.) In Corfield vs. Coryell, (4 Washington Circuit Court Reports, 380) the court say:

The inquiry is, what are the privileges and immunities of citizens in the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are in their nature fundamental; which belong of right to the citizens of all free Governments, and which have at all times been enjoyed by the citizens of the several States which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are would perhaps be more tedious than difficult to enumerate.

They may, however, be all comprehended under the following general heads: protection by the Government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the Government may justly prescribe for the general good of the whole; the right of a citizen of one State to pass through or to reside in any other State for the purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the State; to take, hold, and dispose of property either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the State may be mentioned as some of the particular privileges and immunities of citizens which are clearly embraced by the general description of privileges deemed to be fundamental; to which may be added the elective franchise as regulated and established by the laws or constitution of the State in which it is to be exercised.

But we cannot accede to the proposition which was insisted on by the counsel, that under this provision of the Constitution (section two, article four) the citizens of the several States are permitted to participate in all the rights which belong exclusively to the citizens of any other particular State.

The learned Justice Story declared that the intention of the clause (“the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States”) was to confer on the citizens of each State a general citizenship, and communicated all the privileges and immunities which a citizen of the same State would be entitled to under the same circumstances. (Story on the Constitution, volume two, page 605.)

In the case of the Bank of the United States vs. Primrose, in the Supreme Court of the United States, Mr. Webster said:

That this article in the Constitution (article four, section two) does not confer on the citizens of each State political rights in every other State, is admitted. A citizen of Pennsylvania cannot go into Virginia and vote at any election in that state, though when he has acquired a residence in Virginia, and is otherwise qualified as is required by the constitution (of Virginia) he becomes, without formal adoption as a citizen of Virginia, a citizen of that State politically. (Webster’s Works, volume six, page 112.)

It must be obvious that Mr. Webster was of opinion that the privileges and immunities of citizens, guarantied to them in the several States, did not include the privilege of the elective franchise otherwise than as secured by the State constitution. For, after making the statement above quoted, that a citizen of Pennsylvania cannot go into Virginia and vote, Mr. Webster adds, “but for the purposes of trade, commerce, buying and selling, it is evidently not in the power of any State to impose any hindrance or embarrassment, &c., upon citizens of other States, or to place them, going there, upon a different footing from her own citizens.” (Ibid.)

The proposition is clear that no citizen of the United States can rightfully vote in any State of this Union who has not the qualifications required by the constitution of the State in which the right is claimed to be exercised, except as to such conditions in the constitution of such States as deny the right to vote to citizens resident therein “on account of race, color, or previous condition of servitude.”

The adoption of the fifteenth amendment of the Constitution, imposing these three limitations upon the power of the several States, was, by necessary implication, a declaration that the States had the power to regulate by a uniform rule the conditions upon which the elective franchise should be exercised by citizens of the United States resident therein. The limitations specified in the fifteenth amendment exclude the conclusion that a State of this Union, having a government republican in form, may not prescribe conditions upon which alone citizens may vote other than those prohibited. It can hardly be said that a State law which excludes from voting woman citizens, minor citizens, and non-resident citizens of the United States, on account of sex, minority, or domicile, is a denial of the right to vote on account of race, color, or previous condition of servitude.

It may be further added that the second section of the fourteenth amendment, by the provision that “when the right to vote at any election for the choice of electors of President and Vice President of the United States, Representatives in Congress, or executive and judicial officers of the State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, a citizen of the United States, or in any way abridged, except for participation in rebellion or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State,” implies that the several States may restrict the elective franchise as to other than male citizens. In disposing of this question effect must be given, if possible, to every provision of the Constitution. Article one, section two, of the Constitution provides:

That the House of Representatives shall be composed of members chosen every second year by the people of the several States, and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature.

This provision has always been construed to vest in the several States the exclusive right to prescribe the qualifications of electors for the most numerous branch of the State Legislature, and therefore for members of Congress. And this interpretation is supported by section four, article one, of the Constitution, which provides- “That the time, places, and manner of holding elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof; but the Congress may at anytime by law make or alter such regulations except as to the place of choosing Senators.”

Now, it is submitted, if it had been intended that Congress should prescribe the qualification of electors, that the grant would have read: the Congress may at anytime by law make or alter such regulations, and also prescribe the qualification of electors, &c. The power, on the contrary, is limited exclusively to the time, place, and manner and does not extend to the qualification of the electors. This power to prescribe the qualification of electors in the several States has always been exercised, and is to-day, by the several States of the Union; and we apprehend, until the Constitution shall be changed, will continue to be so exercised, subject only to the express limitations imposed by the Constitution upon the several States, before noticed.

We are of opinion, therefore, that it is not competent for the Congress of the United Slates to establish by law the right to vote without regard to sex in the several States of this Union without the consent of the people of such States and against their constitutions and laws; and that such legislation would be, in our judgment, a violation of the Constitution of the United States, and of the rights reserved to the States respectively by the Constitution. It is undoubtedly the right of the people of the several States so to reform their constitutions and laws as to secure the equal exercise of the right of suffrage at all elections held therein, under the Constitution of the United States, to all citizens, without regard to sex; and as public opinion creates constitutions and governments in the several States, it is not to be doubted that whenever, in any State, the people are of opinion that such a reform is advisable, it will be made.

If, however, as is claimed in the memorial referred to, the right to vote “is vested by the Constitution in the citizens of the United States without regard to sex,” that right can be established in the courts without further legislation.

The suggestion is made that Congress by a mere declaratory act shall say that the construction claimed in the memorial is the true construction of the Constitution, or, in other words, that by the Constitution of the United States the right to vote is vested in citizens of the United States “without regard to sex,” anything in the constitution and laws of any State to the contrary notwithstanding. In the opinion of the committee such declaratory act is not authorized by the Constitution nor within the legislative power of Congress. We therefore recommend the adoption of the following resolution:

Resolved, That the prayer of the petitioner be not granted; that the memorial be laid on the table, and that the Committee on the Judiciary be discharged from the further consideration of the subject.

John A. Bingham
Burton C. Cook
Charles A. Eldridge
Giles W. Hotchkiss
Stephen W. Kellogg
Michael C. Kerr
Ulysses Mercur
John A. Peters

Cite: Cong. Globe, 41st, 3rd Sess., H.R. Report 22 (1871)

Notes:

On February 6, 1871, Rep. George W. Julian sought to open the House to two woman speakers to argue for the House to reconsider Bingham’s report but was rejected by a House vote of 150 nays to 41 yeas. If there was widespread disagreement with Bingham’s conclusions therein this would had been an ideal time to draw attention to any perceived errors.

Years later writing in an essay (Humanitarian, November 1892 Pg. 81), Woodhull would characterize this report as personally authored by Bingham himself, which isn’t surprising since it has Bingham’s fingerprints all over it in style, structure and quotations used.