A. Creation of National Gov’t and Separation of Power 7

The 14th Amendment Reconstruction

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The 14^th Amendment

Reconstruction
1. History of the 14^th amendment
  1. 13^th amendment
    1. 38^th Congress ratified 13^th amendment in 1865 before close of Civil War. North made ratification conditioned upon rejoining Union. (what did it mean to welcome states back if Lincoln said they had never left?)
    2. Black Codes adopted by South States threatened to reestablish slavery – applied unequal penalties to blacks, prohibited them from keeping weapons or selling booze. Restricted right to acquire property and restrict rights to contract for personal service – provisions of capture and indentured servitude contracts.
    3. Civil Rights Act of 1865 – all citizens of every race and color shall have right to make and enforce contracts, sue and be sued, give evidence, inherit, convey real property....
  2. 14^th amendment text
    1. Congress Rejected versions that would have explicitly mandated color-blindness “no discrimination shall be made on account of race and color.” -- how does that bear on modern-day interpretation or was it not a clear rejection?
    2. Worked fundamental transformation in balance of power between fed and state gov’t – gave vast new powers to feds to enforce against the states
  3. 14^th amendment procedural history
    1. Article V requirements
      1. Proposed by 2/3 of each House
      2. ¾ of states needed to ratify or proposed by Convention called by Congress upon petition of 2/3 of states)
    2. Republican majority exercised Article I Sec. 5 power to judge “Qualifications of its own members” to exclude Congressmen from former Confederacy b/c they couldn’t get anything amended – Dems could block.
      1. South states would have lots of new polit members w/ addition of slaves
      2. Southern exclusion was a necessary political condition for Repubs to get 2/3 for proposed amendment
    3. Congressional phase of Reconstruction
      1. Congress passed First and Second Reconstruction Acts in 1867 – dissolved the old state gov’ts of the south and put it under authority of military commanders. Federal military and civilian auths supervised creation of new state gov’ts which were required to accept black suffrage.
      2. Military oversaw registration of black and white voters
      3. Reps of new gov’ts allowed to be members to House and Senate only if the State ratified the 14^th amendment, and only after amendment gained support of ¾ of states.
    4. Johnson attempted to fire Sec. of War, but House started impeachment proceedings and Johnson agree to stop interfering.
2. Legitimacy of the 14^th amendment
  1. Arguments for the legality of the adoption of the 14^th amendment
    1. Southern States left and forfeited right to representation in Congress until they were brought back in.
      1. Doesn’t explain consent to 13^th amendment or Lincoln’s assertion that they had no right in the first place to leave the Union
    2. South gov’ts no longer republican b/c majority of free males was denied right to participate in state constitutional conventions. Congress had no duty to respect nonrepublican gov’ts...
    3. Southern states were in grasp of war until they accepted North’s demands and therefore victor got the spoils. It could count them for 13^th amendment purposes and then change mind to gain whatever political advantage it wanted. 14^th is act of political and military power.
    4. 14^th amendment is so central to Nation’s sense of itself and it guarantees of justice, civil rights and liberties that it must be accepted as legitimate.
    5. By end of 1870s, so many people accepted 14^th amendment that no further explanation of legitimacy is needed.
  2. Illegitimacy
    1. Would ERA have been an Article V amendment if Congress had threatened to withhold federal funding?
    2. What about Article V – No State, without its consent, shall be deprived of its equal Suffrage in the Senate.
  3. Whether history means that we can have a narrower or broader reading of 14^th amendment – what role should history play?
    1. Not let the South interfere with getting some measure of equality in deal which would keep the peace.
    2. Don’t worry so much about consent of the defeated when you’re dealing with a revolution.
    3. Distinguish from original framing of Constitution where everyone was at the table (but it was adopted in violation of the Articles of Confederation), whereas in this case, some were deliberately excluded and the process was circumvented – the States were forced to ratify it in order to get their Representatives back in Congress.
    4. Was the Fourteenth Amendment a huge change in terms of shifting the balance of power to the States?
    5. Was Southern exclusion a necessary political condition for the Republicans to gain two-thirds vote required by Article Five for constitutional amendment.
  4. Political Question evasion
    1. Court dropped juris of Georgia v. Stanton (for destruction of original state gov’t during Congressional Reconstruction), but Supreme Court said it was a “political question” and that they didn’t have juris.
      1. Ct. said case involved rights of sovereignty, political jurisdiction, of gov’t, of corporate existence as a state, with all constitutional powers and privilege.
      2. Ct. said private rights or private property were not main question, even though property of state was at issue.
    2. Ex Part McCardle – individual rights affected by Reconstruction Acts
      1. Congress removed Ct’s juris.
3. Add in Reconstruction and Post-Reconstruction history from Foner ***
4. Civil Rights Act and its aftermath
  1. Enactment of the 14^th amendment (1866)
    1. Congress had questions about what power it had under 13^th to legislate, so it added 14^th amendment.
    2. The questions relate to power to control contracts and property, since those had traditionally been governed under state common law – how well Congress could control labor contracts to completely eliminate servitude.
  2. 1873 – Slaughter House cases and economic rights under the 14^th amendment
    1. Four years after the 14^th amendment and three years after Southern states gov’ts returned, but before the Democrats regain control of the House.
    2. Right after the major waves of Klan violence and legislation to control the Klan.
  3. 1883 – Both houses of Congress controlled by Democrats.
    1. The Compromise of 1877 was Rutherford Hayes (Republican) running against Tilden (Democrat) after the disastrous administration of Grant (corruption and fraud) , but there were contested votes in the electoral college.
    2. Congress set up a special electoral commission with equal Democrats and Republicans to decide the vote challenges, and declared Hayes the winner by one electoral vote.
    3. The commission reported to the Congress, but the Democrats threatened to filibuster the report results, so a deal had to be struck to prevent the Dems from filibustering.
    4. The deal was the withdrawal of federal troops from the South, the appointment of one Southerner to Hayes’ cabinet, and some economic aid for the South. The withdrawal of troops meant the end of Reconstruction.
  4. Civil Rights cases were effort to strike down Civil Rights Act of 1875 (“That all persons within the juris of the US shall be entitled to the full and equal enjoyment of the accommodations....of inns, public conveyances on land...”)
    1. This was the last gasp of radical Republicanism, prior to the Compromise.
    2. Civil Rights Act was concerned more with social rights rather than political rights.
    3. Inns - Restriction of Freedom of movement impedes your ability to earn a living – bringing agricultural products to markets – capacity to earn a living and own your own labor is the core of the 13^th amendment.
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A. Creation of National Gov’t and Separation of Power 7

The 14th Amendment Reconstruction

The 14th Amendment

Reconstruction

History of the 14th amendment

13th amendment

38th Congress ratified 13th amendment in 1865 before close of Civil War. North made ratification conditioned upon rejoining Union. (what did it mean to welcome states back if Lincoln said they had never left?)

Civil Rights Act of 1865 – all citizens of every race and color shall have right to make and enforce contracts, sue and be sued, give evidence, inherit, convey real property....

14th amendment text

Congress Rejected versions that would have explicitly mandated color-blindness “no discrimination shall be made on account of race and color.” -- how does that bear on modern-day interpretation or was it not a clear rejection?

Worked fundamental transformation in balance of power between fed and state gov’t – gave vast new powers to feds to enforce against the states

14th amendment procedural history

Article V requirements

Proposed by 2/3 of each House

¾ of states needed to ratify or proposed by Convention called by Congress upon petition of 2/3 of states)

Republican majority exercised Article I Sec. 5 power to judge “Qualifications of its own members” to exclude Congressmen from former Confederacy b/c they couldn’t get anything amended – Dems could block.

South states would have lots of new polit members w/ addition of slaves

Southern exclusion was a necessary political condition for Repubs to get 2/3 for proposed amendment

Congressional phase of Reconstruction

Congress passed First and Second Reconstruction Acts in 1867 – dissolved the old state gov’ts of the south and put it under authority of military commanders. Federal military and civilian auths supervised creation of new state gov’ts which were required to accept black suffrage.

Military oversaw registration of black and white voters

Reps of new gov’ts allowed to be members to House and Senate only if the State ratified the 14th amendment, and only after amendment gained support of ¾ of states.

Johnson attempted to fire Sec. of War, but House started impeachment proceedings and Johnson agree to stop interfering.

Legitimacy of the 14th amendment

Arguments for the legality of the adoption of the 14th amendment

Southern States left and forfeited right to representation in Congress until they were brought back in.

Doesn’t explain consent to 13th amendment or Lincoln’s assertion that they had no right in the first place to leave the Union

South gov’ts no longer republican b/c majority of free males was denied right to participate in state constitutional conventions. Congress had no duty to respect nonrepublican gov’ts...

Southern states were in grasp of war until they accepted North’s demands and therefore victor got the spoils. It could count them for 13th amendment purposes and then change mind to gain whatever political advantage it wanted. 14th is act of political and military power.

14th amendment is so central to Nation’s sense of itself and it guarantees of justice, civil rights and liberties that it must be accepted as legitimate.

By end of 1870s, so many people accepted 14th amendment that no further explanation of legitimacy is needed.

Illegitimacy

Would ERA have been an Article V amendment if Congress had threatened to withhold federal funding?

What about Article V – No State, without its consent, shall be deprived of its equal Suffrage in the Senate.

Whether history means that we can have a narrower or broader reading of 14th amendment – what role should history play?

Not let the South interfere with getting some measure of equality in deal which would keep the peace.

Don’t worry so much about consent of the defeated when you’re dealing with a revolution.

Was the Fourteenth Amendment a huge change in terms of shifting the balance of power to the States?

Was Southern exclusion a necessary political condition for the Republicans to gain two-thirds vote required by Article Five for constitutional amendment.

Political Question evasion

Court dropped juris of Georgia v. Stanton (for destruction of original state gov’t during Congressional Reconstruction), but Supreme Court said it was a “political question” and that they didn’t have juris.

Ct. said case involved rights of sovereignty, political jurisdiction, of gov’t, of corporate existence as a state, with all constitutional powers and privilege.

Ct. said private rights or private property were not main question, even though property of state was at issue.

Ex Part McCardle – individual rights affected by Reconstruction Acts

Congress removed Ct’s juris.

Add in Reconstruction and Post-Reconstruction history from Foner ***

Civil Rights Act and its aftermath

Enactment of the 14th amendment (1866)

Congress had questions about what power it had under 13th to legislate, so it added 14th amendment.

The questions relate to power to control contracts and property, since those had traditionally been governed under state common law – how well Congress could control labor contracts to completely eliminate servitude.

1873 – Slaughter House cases and economic rights under the 14th amendment

Four years after the 14th amendment and three years after Southern states gov’ts returned, but before the Democrats regain control of the House.

Right after the major waves of Klan violence and legislation to control the Klan.

1883 – Both houses of Congress controlled by Democrats.

The Compromise of 1877 was Rutherford Hayes (Republican) running against Tilden (Democrat) after the disastrous administration of Grant (corruption and fraud) , but there were contested votes in the electoral college.

Congress set up a special electoral commission with equal Democrats and Republicans to decide the vote challenges, and declared Hayes the winner by one electoral vote.

The commission reported to the Congress, but the Democrats threatened to filibuster the report results, so a deal had to be struck to prevent the Dems from filibustering.

The deal was the withdrawal of federal troops from the South, the appointment of one Southerner to Hayes’ cabinet, and some economic aid for the South. The withdrawal of troops meant the end of Reconstruction.

Civil Rights cases were effort to strike down Civil Rights Act of 1875 (“That all persons within the juris of the US shall be entitled to the full and equal enjoyment of the accommodations....of inns, public conveyances on land...”)

This was the last gasp of radical Republicanism, prior to the Compromise.

Civil Rights Act was concerned more with social rights rather than political rights.

Inns - Restriction of Freedom of movement impedes your ability to earn a living – bringing agricultural products to markets – capacity to earn a living and own your own labor is the core of the 13th amendment.

The 14^th Amendment

History of the 14^th amendment

13^th amendment

38^th Congress ratified 13^th amendment in 1865 before close of Civil War. North made ratification conditioned upon rejoining Union. (what did it mean to welcome states back if Lincoln said they had never left?)

14^th amendment text

14^th amendment procedural history

Reps of new gov’ts allowed to be members to House and Senate only if the State ratified the 14^th amendment, and only after amendment gained support of ¾ of states.

Legitimacy of the 14^th amendment

Arguments for the legality of the adoption of the 14^th amendment

Doesn’t explain consent to 13^th amendment or Lincoln’s assertion that they had no right in the first place to leave the Union

Southern states were in grasp of war until they accepted North’s demands and therefore victor got the spoils. It could count them for 13^th amendment purposes and then change mind to gain whatever political advantage it wanted. 14^th is act of political and military power.

14^th amendment is so central to Nation’s sense of itself and it guarantees of justice, civil rights and liberties that it must be accepted as legitimate.

By end of 1870s, so many people accepted 14^th amendment that no further explanation of legitimacy is needed.

Whether history means that we can have a narrower or broader reading of 14^th amendment – what role should history play?

Enactment of the 14^th amendment (1866)

Congress had questions about what power it had under 13^th to legislate, so it added 14^th amendment.

1873 – Slaughter House cases and economic rights under the 14^th amendment

Four years after the 14^th amendment and three years after Southern states gov’ts returned, but before the Democrats regain control of the House.

Inns - Restriction of Freedom of movement impedes your ability to earn a living – bringing agricultural products to markets – capacity to earn a living and own your own labor is the core of the 13^th amendment.