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                            Maryland Law Review
The Transformation of the Fourteenth Amendment: Reflections from the Admission of Maryland's First Black Lawyers
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Page 1

Maryland Law Review

Volume 44 | Issue 4 Article 3

The Transformation of the Fourteenth
Amendment: Reflections from the Admission of
Maryland's First Black Lawyers
David S. Bogen

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Recommended Citation
David S. Bogen, The Transformation of the Fourteenth Amendment: Reflections from the Admission of Maryland's First Black Lawyers, 44
Md. L. Rev. 939 (1985)
Available at:
mailto:[email protected]

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Maryland Law Review

© Copyright Maryland Law Review, Inc. 1985







"They are not included, and were not intended to be included, under
the word 'citizens' in the Constitution .... "
A. The Significance of Citizenship in Dred Scott: An Overview
B. Early Concepts of the Rights of Citizens
C. Privileges and Immunities-Initial Interpretation
D. Dred Scott

"qualified in all respects to be admitted to the Bar in Maryland, if
he was a free white citizen"

Professor of Law, University of Maryland School of Law. B.A., 1962, LL.B.,
1965, Harvard University; LL.M., 1967, New York University. The author would like to
express his appreciation for the research assistance of Beverly Carter, J.D. 1983, Univer-
sity of Maryland, and to Elaine Solomon, class of 1986 and Bernard Justis, class of 1987
of the University of Maryland School of Law. Ralph Clayton and Eva Slezak of the
Enoch Pratt Library were also helpful in compiling materials on early black lawyers in
Maryland. Archivist Kenneth C. Cramer of Dartmouth College and Barbara Krieger
provided material on Edward Draper's experience at that school. Finally, my colleagues
William Reynolds, Garrett Power, Gordon Young, and, especially, Marley Weiss, have
contributed helpful criticism. They deserve at least some of the credit and none of the
blame for this article.


Page 54


the civil rights of citizens. In Trumbull's view, the prewar restric-
tions on free blacks did not prove that discrimination was separate
from slavery; instead, the restrictions on free blacks were part of the
heritage of slavery. Thus, Trumbull argued that the thirteenth
amendment abolished racial discrimination in all laws involving the
protection of life, liberty and property.

1 55

Most Republicans argued that section two of the thirteenth
amendment was a source of power for legislation against racial dis-
crimination in civil rights. Representative Burton Cook of Illinois
argued that without the second section of the thirteenth

no court could hold that any man in any State had a right to
hold another as his slave in the sense in which slaves had
been held before; but it is apparent that under other names
and in other forms a system of involuntary servitude might
be perpetuated over this unfortunate race. They might be
denied the right of freemen unless there was vested a
power in the Congress of the United States to enforce by
appropriate legislation their right to freedom.

... The first section would have prohibited forever the
mere fact of chattel slavery as it existed. When Congress
was clothed with power to enforce that provision by appro-
priate legislation, it meant two things. It meant, first, that
Congress shall have power to secure the rights of freemen
to those men who had been slaves. It meant, secondly, that
Congress should be the judge of what is necessary for the
purposes of securing to them those rights.' 56

Even Republicans who agreed with Trumbull on the scope of sec-
tion one recognized the likelihood that others, including state
courts, might read that section narrowly to do no more than forbid
the existence of slavery. They also placed their reliance on section
two of the amendment. For example, Representative James Wilson
of Iowa said, "A man who enjoys the civil rights mentioned in this
bill cannot be reduced to slavery. Anything which protects him in

153. 39 GLOBE, supra note 149, at 474 (citing Campbell v. Morris, 3 H. & McH. 535
(Md. 1797)).

154. 39 GLOBE, supra note 149, at 474 (citing Coriield v. Coryell, 6 F. Cas 546
(C.C.E.D. Pa. 1823) (No. 3230)).

155. 39 GLOBE, supra note 149, at 474; see aLto id. at 600-0 1 (remarks of Sen. Guthrie)
(taking an ambivalent position on the effect of amendment, but objecting to the civil
rights bill).

156. Id. at 1124.

Page 55


the possession of these rights insures him against reduction to slav-
ery. This settles the appropriateness of this measure, and that set-
tles its constitutionality."' 57

The defects of the thirteenth amendment as a vehicle for deal-
ing with racial discrimination were apparent. Its authority as the ba-
sis for the abolition of the black codes was uncertain. Although
there were good arguments in favor of its application to any racial
discrimination in civil rights, many had doubts about the reception
such arguments would receive in the courts.' 58 Even if the courts
were willing to defer to congressional power under section two of
the amendment, civil rights legislation could be repealed by a later
Congress. I'' Thus, Congress recognized the need for a new
amendment to the Constitution that would place the constitutional-
ity of federal legislative efforts to abolish racial discrimination be-
yond question and would secure those rights in the Constitution
itself. The proposed new amendment and the Civil Rights Act of
1866 were debated concurrently, and they must be viewed together
to understand what the framers of the fourteenth amendment be-
lieved they were doing.

B. The Rejected First Proposal for the Fourteenth Amendment

In February of 1866 ajoint committee of the House and Senate
proposed a new constitutional amendment:

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 protec-
tion in the rights of life, liberty, and property. "'

Congressman John Bingham of Ohio, in proposing this bill, said
that its language came from article IV, section 2 and from the fifth

The proposition pending before the House is simply a

157. Id. at 1118.
158. A few Republican congressmen, like Henry Raymond of New York and John

Bingham of Ohio, believed that the thirteenth amendment was an inadequate constitu-
tional basis for prohibitions of racial discrimination. They voted against the Civil Rights
Act of 1866, but supported the fourteenth amendment to accomplish a similar result. Id.
at 2502 (remarks of Rep. Raymond); id. at 1291-92 (remarks of Rep. Bingham).

159. Id. at 1095 (remarks of' Rep. Hotchkiss).
160. Id. at 1034 (proposal of SelectJoint Committee on Reconstruction).

992 [VOL. 44:939

Page 108


sweep of the privileges and immunities clause was never sufficiently
defined to force proponents of the amendment to consider its im-
pact on segregative practices. The article IV heritage of the clause
contained some support for reasoning that equality in privileges or
immunities did not in all cases require an identity of rights. But the
specific privileges on which the framers had focused were those
spelled out by the Civil Rights Act of 1866, and separate but equal
made no sense with respect to those rights of contract, property,
and legal process. During the debates, school segregation was gen-
erally thought to be acceptable under the fourteenth amendment.
But public education was in its infancy and many congressmen
probably did not consider it to be a privilege or immunity of citizen-
ship. The Slaughterhouse Cases had cut short development of the con-
cept of privileges and immunities. When Strauder returned the
Court to a path requiring equality in state laws, there was no fully
adequate definition of the equality envisioned. Ultimately, that vi-
sion focused on upholding the patterns of life that had achieved
general acceptance in the community. The acceptance of separate
facilities under federal common law led to its acceptance under the
Constitution as well.

Waring's admission to the bar reflected the expanded meaning
of the "protection" of the laws. This expansion was the court's re-
sponse to the problem of maintaining the intended broad coverage
of the fourteenth amendment while preserving the federal structure
threatened by the arguments based on privileges and immunities.
But Waring's subsequent legal career foreshadowed the contraction
of the notion of "equality" which would take place in McGuinn and
Plessy. Not only would segregation continue, but segregation with
plainly unequal facilities would be permitted. Mere admission to
the bar did not open the way for the representation by black attor-
neys of all members of society, when social prejudice confined them
to a predominantly black clientele whose resources were limited. 7 "
Thus, early black lawyers like Waring were forced to pursue other
activities to strengthen their own economic position and that of the

370. Judge Bond stated in a letter concerning the creation of a law school at Morgan
College that the few black lawyers were not supported by blacks and "they can hardly be
called successful practitioners." Baltimore Am., Dec. 16, 1890, at 8, col. 1. Waring re-
sponded that the five black lawyers were all "supported by the colored people" and
made a good living. Harry Cummings said essentially the same thing. R. A. McGuinn,
however, agreed with Bond "that the colored people do not support their legal repre-
sentatives as they ought," and also noted that whites did not support black lawyers. Id.,
Dec. 17, 1890, at 6, cols. 1-2.

Page 109


black community.3 7' Most of those early efforts ended in failure. 72

But these failures, like the failure of those before Waring who
sought to become lawyers, were only the first steps of a struggle that
ultimately changed society. Black lawyers from Maryland played a
crucial role in stopping efforts in the state to disenfranchise
blacks, 73 in blocking residential segregation laws,374 in opening the
graduate schools to blacks,3 75 and, finally, in striking down segrega-
tion. 376 When the sad reality of the inequality of "separate but
equal" was finally acknowledged by the Court in 1954, the ex-
panded notion of "protection," which had opened the bar to black
lawyers, was available to extend the new understanding of equality
to every activity of the state.

371. B. THOMAS, THE BALTIMORE BLACK COMMUNITY 1865-1910, at 231, 283 (1974)
(unpublished Ph.D. thesis, George Wasington University).

372. W. PAUL, supra note 306, at 369-80; E. FREEMAN, supra note 334, at 75-89 (dis-
cussing the failure of the Lexington Savings Bank, which Waring headed, his trial for
embezzlement, his vindication by a not guilty verdict and his subsequent move to

373. Harry Cummings, a graduate of the University of Maryland School of Law, who
became the first black elected official in the state in 1890 when he was elected to the
Baltimore City Council, was one of the leaders of the Maryland Suffrage League. M.
CALLCOTr, supra note 320, at 122.

374. W. Ashbie Hawkins, excluded from the University of Marvland School of Law at
the end of his first year because the school decided to end its policy of integration,
graduated from Howard Law School and successfully represented black plaintiffs chal-
lenging residential segregation. See State v. Gurry, 121 Md. 534, 88 A. 546 (1913);Jack-
son v. Maryland, 132 Md. 311, 103 A. 910 (1918). See also Power, Apartheid Baltimore Style:
The Residential Segregation Ordinances of 1910-1913, 42 MD. L. REv. 289 (1983).

375. Thurgood Marshall, a graduate of Howard Law School who had been prevented
from attending the University of Maryland School of Law by its policy of discrimination,
acted as local counsel in the successful suit to end discrimination there. Marvland v.
Murray, 169 Md. 478, 182 A. 590 (1936). See R. KLUGER, SIMPLEJUSTICE 186-94 (1976).

376. Marshall led the group of attorneys in the litigation that culminated in Brown v.
Board of Education, 347 U.S. 483 (1954). See R. KLUGER, supra note 375.

1046 [VOL. 44:939

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