Civil War Amendments – Guest Essayist: James Legee

 

For nearly the first century of her existence, America had left a promise unfulfilled to both the souls that resided within her borders, as well as humanity at large.  That promise, largely taken for granted today, cost the blood of nearly five thousand in the American Revolution and hundreds of thousands in the Civil War, is the revolutionary idea expressed in the Declaration of Independence that every person is born equal.  The Civil War and Reconstruction fundamentally altered the Union, and most certainly for the better.  The Civil War Amendments, the 13th, 14th, and 15th, sought to fulfill the promise of equality for those enslaved.

In the Thirteenth Amendment, which abolished slavery in the United States, Lincoln and the Republican Congress sought to enshrine the Emancipation Proclamation in what they saw to be a more republican and enduring manner.  Specifically, Lincoln wanted passage in the branch of the Federal government closest to the people, and then in the state assemblies, rather than relying on an executive order.  The intent was to eliminate possible future challenges to the end of slavery in the Union.

Prior to the thirteenth amendment, some of the Border States sought to abolish slavery in their own constitutions.  There is debate, though, as to whether this was a truly representative effort.  Many of the Border States required loyalty oaths; thus, supporters of the Confederacy were disenfranchised.  Missouri, for example, only passed a state constitution abolishing slavery on January 11, 1865, by a mere 1,862, and this was in large part due to the votes of Union soldiers.

Furthermore, the states in rebellion did not get a say in the drafting of the Amendment, nor did their representatives ever vote on it in Congress.  Rather, adoption of the Thirteenth Amendment was a condition of restoration to the Union.  Regardless, in a tense vote in the House on January 31, 1865, sixteen Democrats broke party lines to join Republicans in passing the 13th Amendment 119 to 56.  Within three months, nearly every state still in the Union had ratified it.

Lincoln, regrettably, did not live to see the Fourteenth Amendment, which came with greater controversy and difficulty.  President Johnson lacked Lincoln’s deft hand in dealing with Congress, and was furthermore opposed to the Fourteenth Amendment.  Elements of the Republican Party were concerned with the disenfranchisement of former slaves in southern states and feared that they would be relegated to effective slave status.  Johnson, on the other hand, was sympathetic to southern concerns over states’ rights, and was dubious of the social equality of blacks.  His sympathetic views were largely rejected in the midterm elections of 1866, and Congress was able to effectively take control of reconstruction.

In 1867 the Military Reconstruction Act was passed, over a presidential veto, dismissing state governments approved of by the Johnson administration and replaced them with military commanders.  In a further effort to limit Johnson, the Congress passed the Tenure of Office Act, which prevented him from removing anyone that had been confirmed by the Senate.  This left Johnson irate and unable to prevent nearly any aspect of Republicans’ reconstruction plan.  In 1868, Congress sought to protect the rights of former slaves and passed the 14th Amendment, which ensured birthright citizenship, due process, and “equal protection of the laws.”  States that had previously been in rebellion were also denied say on the 14th Amendment; full return to the Union and representation in Congress was not granted until they accepted the Amendment.

Of all the Reconstruction Amendments, the 14th is perhaps the most significant to jurisprudence today, and the most hotly contested.  It paved the way for the Slaughterhouse cases of the 1870s and later the doctrine of “separate but equal” in Plessy v. Ferguson in 1896.  A narrow reading of the Amendment protected only certain rights pertaining to citizenship, voting, jury duty, etc., and fails to ensure any sort of equal treatment socially, hence the rise of Jim Crowe legislation around the United States.  Understood more broadly, which would take Brown v. Board, it is a guarantor of Federal protection of civil rights by the Federal government, at not only the federal level, but empowers the Federal Government to protect citizens from state governments infringing on the Bill of Rights.

The final Reconstruction Amendment is the 15th, ratified February 3, 1870.  The 15th Amendment reads about as straightforward as the 13th, and like the previous two amendments, entailed a bitter ratification fight, particularly in the South.  It enshrined the right to vote for all persons, regardless of “race, color, or previous condition of servitude.”  It also empowered congress to enforce this via “appropriate legislation,” later echoed in the Voting Rights Act of 1965.  Republicans, not altogether altruistically, viewed the vote of Africans Americans as necessary to their electoral future, but also a fundamental right.  However, a narrow reading of the 14th Amendment, combined with a narrow reading of the 15th Amendment, led to poll taxes, literacy tests, and litany of other attempts by state governments to suppress the vote of nonwhites throughout the South.

Notably, the passage of each amendment and its enactment is done in ways that are inherently undemocratic – particularly to today’s citizens and politicians.  All of the Amendments are drafted by what are considered radicals in the period’s political rhetoric.  The South was barely allotted a say in their acceptance of such laws, to say nothing of a voice in their formation.  A military governor, laws written without vote by the citizenry, and a hostile military presence could easily describe 1776.  Today’s rhetoric enshrines the majoritarian principle; the president has a mandate from the people to enact his agenda (with or without congress), a majority party in the Senate should ignore a presidential appointment until the people have spoken in the next election, and legislation is just if 50+1% of a body politic pass it, leaving 49% of the public ambivalent or on the wrong side of history.  Given the adoration of democracy today, how can we exalt the Reconstruction Amendments?

The dissonance of the voting public, intelligentsia, and talking heads aside, how can we understand the 13th, 14th and 15th Amendments, given the undemocratic nature of their passage?  Is it that the ends simply justify the means?  Jefferson, in a September 20, 1810 letter to John B. Colvin (editor of The Republican Advocate) contended, “The laws of necessity, of self-preservation, of saving our country when in danger, are of a higher obligation.  To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property, and all those who are enjoying them with us; thus absurdly sacrificing the end to the means.”  It is logical to extend this to the letter of the Constitution in the Amendment process, to a strict adherence to democracy.  Democracy is not the end, rather it is a process, just as America, as a state, is not the end, rather, it is the preservation of the rights of man as expressed in the Declaration.  The law, democracy, and America as a state are Jefferson’s means, and are the means here.

While Jefferson helps us understand this was not merely an instance where the ends were used to justify the means, Lincoln aids us in understanding the principles at stake.  Years before his Presidency in his October 16, 1854 speech at Peoria, he articulates that slavery was an institution that undermined democracy not merely as a political process, but the very foundation of self-government and natural right.  “…if the negro is a man, is it not to that extent a total destruction of self-government, to say that he too shall not govern himself?  When the white man governs himself that is self-government; but when he governs another man that is … despotism.  If the negro is a man then my ancient faith teaches me that ‘all men are created equal’; and that there can be no moral right in connection with one man’s taking a slave of another.”

The Reconstruction Amendments, though seemingly undemocratic in their enactment, and a long time coming in a broad reading of rights, were steps towards protecting the natural right not just of African Americans, but ensuring the preservation of rights of all Americans.

James Legee; Program Director at the Freedoms Foundation at Valley Forge (www.freedomsfoundation.org)

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5 Responses to “Civil War Amendments – Guest Essayist: James Legee”

  1. Ron says:

    Mr. Legee, which confederate states were readmitted to Congress in time for the 14th and 15th Amendments? Were those readmitted allowed to vote for the 14th and 15th, or were only the non-confederate states allowed to vote on those amendments?

    • Ralph T. Howarth, Jr. says:

      Ron, the 14th Amendment did not have enough votes among the Union states to be ratified, so the dubious condition was set upon the confederate states of rebellion that they had to pass the 14th amendment in order to be seated in Congress. It was dubious because the constitution requires states admitted into the union to ratify amendments while the condition of ratifying an amendment was being put first before being admitted back into the states. This also goes against the Lincoln Administration’s stance that the states in rebellion never left the Union. To recognize the states as having left the Union would have given recognition to a secession.

  2. James Legee says:

    Hi Ron!
    Thanks for your question and interest. In response, the Confederate states did NOT get a say in the passage of the 14th Amendment in Congress. It was not until after each state had a state constitutional convention and passed a new constitution, did they regain representation in Congress.

    Congress passed the 14th Amendment June of 1866, and the first Confederate state to pass a new constitution was Tennessee in July of 1866. Further, Congress required that all confederate states accept the 14th Amendment as a condition of admittance back to the Union. Thus, no Confederate State was able to engage in the shaping of the Amendment.

    The fifteenth was not passed by the Senate until Feb 26 of 1869. At this point Virginia, Mississippi, Texas and Georgia had not had state Constitutions, and did not have any representation in the 40th Congress (which would pass the 15th Amendment.) The other Confederate states did regain representation over the course of the 40th Congress.

    The state legislatures did vote on the Amendments, but as stated, the 14th was required to rejoin the Union, and enough states ratified the 15th for it to become the law of the land regardless of former confederate states (and some Northern states) failure to pass it.

    I hope this clarified any questions.

    Best,

    James

  3. Ron says:

    Thanks for the clarification James! Ron

  4. Publiuis Senex Dassault says:

    Awesome essay that walked us through the amendments, their passage, and the constitutional issues and nuances.

    “Specifically, Lincoln wanted passage in the branch of the Federal government closest to the people, and then in the state assemblies, rather than relying on an executive order.” Sweet.

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