In late December 2020, I concluded a fifty-page book chapter on the drafting of Section 3 of the Fourteenth Amendment that began by declaring “Section 3 is the most forgotten provision of the forgotten Fourteenth Amendment.” Less prophetic words were never spoken.
My present book project, The Forgotten Fourteenth Amendment, explores what Republican members of the Thirty-Ninth Congress were doing when they drafted the Fourteenth Amendment. The project diverges from the numerous published works on the Fourteenth Amendment in two important respects. First, the manuscript maintains that, Representative John Bingham of Ohio aside, the Republicans who drafted the Fourteenth Amendment were far, far more concerned with changing the basis of representation (Section 2), limiting the political participation of former confederates (Section 3), and making certain financial guarantees (Section 4) than with providing additional constitutional protections for individual rights (Section 1). Second, the manuscript focuses on how Republicans thought the Fourteenth Amendment would work rather than exclusively on what they thought the text meant. My concern is with what Republicans perceived to be the central problems requiring constitutional amendment in the wake of the Civil War and the conceptual apparatus they employed to resolve those problems. My work does not ask, as much contemporary originalism does, how Republicans would have resolved the problems we have today if Republicans had access to our conceptual apparatus. This approach to the Fourteenth Amendment, which might be called historical originalism as opposed to legal originalism, sheds some light on what Republicans in 1866 might say about contemporary problems, but also highlights the difficulties inherent in translating efforts to solve problems created by the aftermath of the Civil War into efforts to solve problems created by the aftermath of the Trump presidency.
Some History
The record made by the Thirty-Ninth Congress reveals far less about Section 3 than any other provision in the Fourteenth Amendment. Republicans when setting out the conditions for restoring former confederate states to the Union demanded, in rough order of priority, a constitutional change in the basis of apportionment (Section 2), constitutional provisions respecting the state and federal debt (Section 4), constitutional or statutory provisions limiting confederate participation in politics (Section 3), constitutional or statutory provisions protecting the rights of former slaves and white Unionists (Section 1), and a constitutional ban on secession that did not become part of the final Fourteenth Amendment. Before considering the omnibus Fourteenth Amendment, Congress debated stand-alone versions of Section 1, Section 2 and Section 4. These debates provide some perspective on Republican thinking on the meaning and implementation of the rights, apportionment and financial provisions in the final Fourteenth Amendment. Congress did not, however, consider a stand-alone version of Section 3. What Republicans thought that provision meant and how they planned to implement that provision must be determined primarily from the debates over the omnibus Fourteenth Amendment. At least two problems exist with making any confident inferences on both meaning and implementation.
The first version of Section 3 was born in chaos. On Wednesday, April 25, 1866, the Joint Committee on Reconstruction reached agreement on an omnibus Fourteenth Amendment. The centerpiece of that text was the provision mandating black suffrage by 1876. The Republicans on that committee immediately learned from their peers that this provision would not fly. Desperate to produce an amendment by Monday, April 30 the Joint Committee hastily cobbled together a new omnibus draft on Saturday, April 28. The centerpiece of that text was Section 2, which the Republican members of the committee thought would induce former confederate states to accept black suffrage by reducing state representation in the House of Representatives and Electoral College in proportion to disenfranchised males over 21. Section 2 of the new omnibus text could not be implemented until after the next census. To ensure loyal control of state governments until that time, the Joint Committee added Section 3, which disenfranchised until July 4, 1870 all persons who gave “aid and comfort” to the rebellion.
The second version of Section 3 was reared in secret. The Joint Committee’s Section 3 engendered substantial debate among Republicans in Congress. Republicans disputed how that provision would be implemented and whether that provision would be effective. In mid-May Republican Senators held a three-day caucus to resolve disputes over Section 3 (and Section 2). We know the subjects of that caucus (largely Section 3), but not the details of what was said. No one leaked then or later in memoirs. When that caucus ended, Senator Jacob Howard of Michigan proposed, with a few tweaks, the Section 3 we have today. That Section 3 replaced temporary disenfranchisement with a permanent officeholding ban (both federal and state) while limiting the subjects of the ban to persons who, holding certain offices, had previously taken an oath to support the Constitution. Republicans fell in line immediately. Party members responded to Democratic criticisms, but did not discuss the meaning of the Republican Senate Caucus’s Section 3 or how to best implement that provision.
No comments:
Post a Comment