Feeding the Hungry

This post submitted by an IBRL member.

Two weeks ago we talked about the doctrine of incorporation. One snippet of the complex history leading up to the Fourteenth Amendment, which includes one of my most favorite quotes, is tangentially relevant to current events.

In 1854 full scale political war broke out over the admission of Kansas and Nebraska to the Union pursuant to the Kansas-Nebraska Act, which admitted the two states “with or without slavery as their constitutions may provide.” Opponents of the Act formed the new Republican Party, which would later go on to control Congress during reconstruction and pass, among other things, the Fourteenth Amendemnt, on the platform and the slogan of “Free Kansas.” The new party’s platform declared it “both the right and the duty of Congress to prohibit in the Territories those twin relics of barbarism, polygamy and slavery.” In a demonstration of a natural rights concept of “privileges and immunities,” the Republican party further resolved “that Kansas should be immediately admitted as a State of the Union with her present free constitution, as at once the most effectual way of securing to her citizens the enjoyment of the right and privileges to which they are entitled.”

Outright violence commenced. Massive contingents of pro and anti slavery forces immigrated to Kansas in an attempt to overwhelm the other side in the vote on the state’s constitutional disposition toward slavery. When the pro-slavery forces won the election, dispelled anti-slavery forces, and entrenched their position in the laws of the new state, the anti-slavery faction set up an opposition government led by “Free-Soil” forces, another radical political party dedicated to the slavery issue. The shots fired in this exchange were the first of what we now call the Civil War.

Among others, the new Kansas legislature passed laws restricting the freedoms of speech and the press, and which were “identical to [those] passed by a number of [other] states,” and which made it a felony “to assert that persons have not the right to hold slaves in said Territories” or to “circulate any writing containing any sentiments calculated to induce slaves to escape from the service of their masters.”

On March 7th, 1856, John Bingham, widely considered the most important figure in the formation of the Fourteenth Amendment, attacked the constitutionality of these laws. His speech was extraordinarly compelling, and by no means uncharacteristic for its time. Remember, John Bingham gave this speech TEN YEARS BEFORE the Fourteenth Amendment was proposed :

"[I]t is as plain as any fact in nature that this legislation is void by whomsoever enacted. And why? Simply because it contravenes the Constitution of the United States, and by which Constitution, by the express terms of the organic act, restricts the legislative power of the Legislative Assembly of Kansas to such rightful subjects of legislation as are consistent with the Constitution.
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Any territorial enactment which makes it a felony for a citizen of the United States within the territory of the United States “to know, to argue, and to utter freely according to conscience,” is absolutely void, because it is not consistent with that provision which declares that Congress of the United States shall not pass any law abridging the freedom of speech or of the press. It has conferred the power of legislation on that Territory; but at the same time of conferring that power, it said, in terms plain and clear to the comprehension of any man, that such legislation should only extend to such rightful subjects of legislation as were consistent with the Constitution. Congress has the power to restrain and prevent any such legislation. By permitting it to stand, Congress approves it, and, in fact, enacts it. What Congress does by another, it does itself, in effect
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[According to these laws from Kansas, it would be] a felony to shelter the houseless, to cloth the naked, to feed the hungry, and help him that is ready to perish; a felony to give to the famishing a cup of water in the name of our Master. Oh, sir, before you hold this enactment binding upon an American Congress, tear down that banner of freedom which floats above us, for stirring reminiscences linger in its folds, and the stars upon its field of azure have gleamed above the fields of “poised battle,” where the earthquake and the fire led the charge, and where American virtue and American valor maintained the unequal conflict against the mighty power of British tyranny and oppression. Before you hold this enactment to be law, burn our immortal Declaration and our free written Constitution, fetter our free press, and finally penetrate the human soul and put out the light of that understanding which the breath of the Almighty hath kindled.
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This pretended legislation of Kansas violates the Constitution in this – that it abridges the freedom of speech and of the press, and deprives persons of liberty without due process of law, or any process but that of brute force, while the Constitution provides that Congress shall make no law abridging the freedom of speech or of the press; and it expressly prescribes that “no person shall be deprived of life, liberty, or property without due process of law."

When I read this speech, I still get chills.

For more, I recommend Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (Durham: Duke University Press, 1986) and Raoul Berger, The Fourteenth Amendment and the Bill of Rights (Norman: University of Oklahoma Press, 1989)