The Right to Hold Public Office and the Fourteenth and Fifteenth Amendments: The Original Understanding
![handle is hein.journals/ukalr15 and id is 335 raw text is: 1967]
THE RIGHT TO HOLD PUBLIC OFFICE AND THE
FOURTEENTH AND FIFTEENTH AMENDMENTS:
THE ORIGINAL UNDERSTANDING
Alfred Avins*
The recent case of Julian Bond, a young Negro pacifist barred from the
Georgia Legislature,' has made contemporary the question whether there is a
federally protected constitutional right to be admitted to public office.' Several
years ago this author came to the conclusion based on examination of Supreme
Court and other federal cases, that if the Court were faced squarely with the
problem, and adhered to its recent opinions, it would decide that the fourteenth
amendment did inhibit, to at least some extent, state discrimination in selection
or eligibility for public office.' In that brief article the author did not have oc-
casion to consider the original understanding and intent of the framers of the
fourteenth and fifteenth amendments. Work on a current case involving the
scope of the fourteenth amendment with respect to political rights' has led the
author to re-examine the question whether the Constitution protects the right
to hold public offices of a state or municipal character. This inquiry has raised
the question whether the conclusion that the fourteenth amendment protected
the right not to be discriminated against in seeking public office was in error.
The purpose of this article, arising out of the conviction that constitutional in-
terpretation should not depend wholly upon decisional law, is to examine the
original intent of the framers with respect to this question.
PASSAGE OF THE FOURTEENTH AMENDMENT
The dichotomy in the mind of Representative John A. Bingham of Ohio,
the Radical-Republican lawyer who drafted the first section of the fourteenth
amendment, between natural rights or what later would be called civil
rights, and political rights including the right to hold public office, pre-dated
the Civil War. In his lengthy speech in 1859 against the admission of Oregon,
he attacked the Oregon Constitution for denying Negroes the right to sue and
hold property, but disclaimed any intention of allowing them to hold public
office.' During the Civil War, the question of racial discrimination in public
* Professor of Law, Memphis State University. B.A. 1954, Hunter College; LL.B. 1956, Columbia;
LL.M. 1957, New York University; M.L. 1961, J.S.D. 1962, University of Chicago; Ph.D. 1965, Univer-
sity of Cambridge.
' Bond v. Floyd, 87 Sup. Ct. 339 (1966). The Court held that the exclusion of Bond from the Georgia
Legislature because of his statements concerning the draft and the war in Vietnam was unconstitutional
because it violated the free speech provisions of the first amendment.
2See N.Y. Times, Jan. 10, 1966, p. 10, col. 2; id., Jan. 11, 1966, p. 8, col. 3; id., Jan. 12, 1966, p. 18,
col. 1-4; id., Jan. 14, 1966, p. 26, col. 1; id., Jan. 15, 1966, p. 1, col. 4; id., Jan. 21, 1966, p. 27, col. 5;
id., Jan. 25, 1966, p. 34, col. 6; id., Jan. 29, 1966, p. 1, col. 8; id., Feb. 11, 1966, p. 18, col. 1.
Avins, Weapons Against Discimination in Public Office, 14 SYRACUSE L. REv. 24 (1962).
Morgan v. Katzenbach, 247 F. Supp. 196 (D.D.C. 1965), prob. juris. noted, 86 Sup. Ct. 621 (1966).
'CONG. GLOBE, 35th Cong., 2nd Sess. 985 (1859) (hereinafter Congressional Globes will be cited by
Congress, session, page, and year as follows: 35(2) GLOBE 985 (1859)).](ViewImageLocal?handle=hein.journals/ukalr15&div=29&collection=&method=preview&ext=.png&size=3)
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The Right to Hold Public Office and the Fourteenth and Fifteenth Amendments: The Original Understanding
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