14th amendment: "mini-constitution"
14th amendment: “mini-constitution”

As important as the constitutional event, the Thirteenth Amendment’s abolition of slavery initially did less than its supporters had hoped, largely due to the resistance of President Lincoln’s successor Andrew Johnson to Congressional Reconstruction, as well as the adamant resistance of the Southern establishment. The Congressional response to these obstacles led to Fourteenth Amendment. With three sections more than the Thirteenth Amendment and more NINE once a word, the fourteenth is the longestmajority difficultand most disputed changing our constitution.

“Scene in the house during the passage of a proposal to amend the Constitution, January 31, 1865.” (Harper’s Weekly: New York, NY, February 18, 1865). Internet Archive.

Many of the original proponents of the Thirteenth Amendment considered its key provision (“neither slavery nor involuntary servitude … shall exist in the United States”) sufficient expression of principle to guide Reconstruction. They recognized slavery as the root of disunity, so the proclamation of the Thirteenth Amendment seemed to be a fundamental platform to address both philosophical and institutional issues—to transform, in the words of Representative Thaddeus Stevens, “the entire fabric of Southern society.” Because slavery permeated that fabric, condemning it could redefine constitutional questions. powersfrom rights, and from compound in southern society. But the southern establishment stubbornly resisted any significant changes, intending to preserve the status quo as much as possible. Even before the amendment was ratified, southern state governments began to introduce black codes that legally subjugated African Americans and often denied them the protections enshrined in the federal Bill of Rights. Scattered application of the Bill of Rights was constitutional in an 1833 Supreme Court case. Barron vs. Baltimore, which determined that the Bill of Rights applied only to federal law and not to state or local government action. In addition, the black codes often used the Thirteenth Amendment exemption (under which the “punishment of crime” allowed governments to impose forced labor) as a loophole for criminalize acts protected by the Bill of Rights when committed by blacks (eg, public gathering beyond certain numerical thresholds, carrying weapons, public speaking or preaching without permission, etc.). The practice angered congressional Republicans, who pledged to work out a legally binding response.

14th amendment
John A. Bingham. TM Johnston (Boston: CH Brainard, 1860) Library of Congress LC-DIG-pga-07173

Enter Representative John Bingham of Ohio, now known as the “Father of the Fourteenth Amendment”. Bingham served eight years in Congress, fighting against the expansion of “slave power” in the South, before losing his seat in the reorganized district after the 1862 election. During a recess in Congress at the height of the Civil War, Bingham’s friendship with fellow Whig-turned-Republican Abraham Lincoln led to him taking various legal positions in the administration—a job that ideally placed him back in the Republican wave. accompanying Lincoln’s re-election in 1864. Even before the outrages of the black codes, Bingham was convinced that Reconstruction would require “(constitutional) restraints of the States in favor of the personal liberty of all citizens of the Republic”. This conviction made him a logical supporter of the new Reconstruction Amendment.

In February 1866, Bingham proposed his new amendment stating that “Congress shall have power to make all laws necessary and proper to secure to the citizens of every state all the privileges and immunities of citizens in several states, and to all persons in several states shall be afforded equal protection of life, freedom and property. However, Bingham’s Republican colleagues hesitated, fearing harsh language and not convinced that they had enough of a majority to pass and ratify it. However, convinced of the dire need to counter the Southern backlash, they turned to an intermediate remedy that could protect freedmen by upholding their rights and role in a post-emancipated society: the Civil Rights Act of 1866. This volley against black codes came close to Bingham’s vision. , establishing a national definition of citizenship and asserting “full and equal” legal protection that supersedes “any law, statute, ordinance, ordinance or custom to the contrary”. By this act, they hoped to ensure that neither hostile laws nor norms will hinder the necessary course of civic equality.

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Detail from Nast, Thomas, Artist. Reconstruction by Andrew Johnson and how it works / T. Nast. , 1866. September 1. Library of Congress, LC-DIG-ppmsca-13467.

The motivation to return to a more permanent amendment process came faster than expected and from an unexpected place: President Johnson in March 1866. veto US Congress Civil Rights Act. Calling the bill “fraught with evil,” Johnson chided its expansion of citizenship and insisted that it interferes with market forces that reshape the civil order more naturally. Although Republicans in Congress knew that Johnson did not share the boldest parts of their vision for Reconstruction (which they outlawed), they were surprised by his rebuff. Encouraged, they rallied a supermajority to override Johnson’s veto—the first major override of a veto in the history of the federal Congress—and quickly returned to discussing the amendments.

By early May 1866, Congress had the Fourteenth Amendment up for debate in near-final form. Congressional records show that then, as now, the greatest energy was focused on the first section:

Section 1. All persons born or naturalized in the United States and subject to its jurisdiction are citizens of the United States and the state in which they reside. No State shall make or enforce any law which infringes upon the privileges or immunities of the citizens of the United States; no state shall deprive anyone of life, liberty, or property without due process of law; and not deny to any person within its jurisdiction the equal protection of the law.

This section would have enshrined the principles of the Civil Rights Act in the Constitution—in the words of then Representative (and future President) James Garfield, “lifting (the Civil Rights Act) beyond the reach of political strife, beyond … the conspiracies and machinations of any party.” Senator Jacob Howard from Michigan repeated Bingham’s insistence that Title 1 nationalize the “personal rights guaranteed and enforced by the first eight amendments” of the Bill of Rights—a process we now call registration. In addition, Section 1’s establishment of birthright citizenship overturned the infamous 1857 Supreme Court ruling Dred Scott a decision that found blacks ineligible for citizenship and therefore protected by federal law.

The remainder of the Fourteenth Amendment became the vessel for dealing with the various complications of Reconstruction. Section 2 introduced a new representation formula that eliminated the obsolete three-fifths clause of the original Constitution and punished states for denying any male citizens the right to vote by proportionally reducing their representation in Congress (alas, this clause was ignored in practice after Reconstruction). overthrown, and Jim Crow caught up with the South). Section 3 placed restrictions on former rebels who held political office before the war. Section 4 dealt with financial matters, prohibiting the payment of the Confederate debt, guaranteeing the payment of the Union debt, and denying any future compensation to former slave owners. Finally, Section 5 repeats the language that closes the Thirteenth Amendment, reaffirming the enforcement powers of Congress.

Opposition to the amendment during the debate focused largely on threats to states’ rights as well as white rule. Representative Andrew Rogers (D-NJ), the most quoted opponent of Congress, criticized the amendment as “a disengagement program … most dangerous to freedom … (which) destroys the elemental principles of the states” and America’s status as “a government for white men and white women” . Senator (and future Vice President) Thomas Hendricks (D-IN) found new threats to federalism in the Fourteenth Amendment enforcement article that he somehow didn’t see in the same Thirteenth Amendment words: “When these words were used in (the Thirteenth ) amendment they (seemed) harmless; but (now) they required such force and scope … that Congress could … crown the federal government with absolute and despotic power. But such complaints were a marked minority. The Republicans drafted the amendment on the basis of compromises between their radical and moderate factions, and the urgency to counter political and social resistance was pressing. The Fourteenth Amendment was passed by both houses of Congress by a clear supermajority: the Senate on June 8, 1866, by a vote of 33 to 11, and the House of Representatives on June 13, 1866, by a vote of 120 to 32.

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More than any amendment before or since, the US Constitution has become a different document since the Fourteenth Amendment. His various positions have been reinterpreted over time, his role in American life has changed along with the power and influence of interpreters. The amendment’s scope was not limited to empowering freedmen and deterring Confederates at short notice: the first major Supreme Court decision on the Fourteenth Amendment was actually about a white butchers’ association in New Orleans. Cases in the slaughterhouse (1873). Just over a decade later, after the Court announced its rejection of Reconstruction, it extended the protections of the Fourteenth Amendment. corporations as legal “persons” is a key source of legal protection and controversy to this day. During the Civil Rights Movement, activists and legal strategists demanded that the federal government exercise the Fourteenth Amendment’s enforcement powers and reconsider the amendment’s roots based on equal citizenship—both emphases that had lain dormant since the end of Reconstruction. These demands helped set the legal conditions for the wider rights revolution of the 1960s.

The Fourteenth Amendment permeates current political events, manifesting itself in predictable and unpredictable ways, in mainstream and marginal arguments, across the political spectrum, in discussions about debt limit, vote suppression, positive action, citizenship by birth, January 6, 2021 Capitol riot, and more. It is not surprising that, given the many issues it raises, many Fourteenth Amendment supporters consider it (as legal scholar John Witt puts it) to be “mini constitution” itself, embedded in the original. The historical context and contemporary applications of the Fourteenth Amendment show that addressing the challenges and realizing the opportunities for reconstruction required a rethinking of the federal constitution, a process that continues to this day.

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Malik Ali, a James Madison Scholar and a 2017 graduate of the Master of Arts in American History and Government, is a Distinguished Teacher of Tucman History at the Branson School in Ross, California.