Passage of the Fourteenth Amendment


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A Tale of Unconscionable and Unconstitutional Political Manipulation

By Leonard M. Scruggs-

Following the great tragedy of the “Civil War” and the assassination of President Lincoln in April of 1865, national leadership was largely in the hands of a Congress dominated by the Radical Republicans. They undermined the new President, Andrew Johnson, at every opportunity, and had little regard for the Supreme Court. They considered the Constitution to be an inconvenience and the Supreme Court to be an annoyance to the will of the people accomplished by Congress. States Rights, having been defeated by the coercion of bayonets, was no longer an effective check on federal power.

President Johnson planned to follow Lincoln’s relatively benign plan for establishing loyal civil governments in the South and restoring them to the national family. Pursuant to this on May 29, 1865, he declared an amnesty for most Confederate veterans. By the middle of July many Southern state governments under the control of Union loyalists were functioning. But the Radical Republicans were bent on exacting vengeance and remaking the South. Johnson was uncomfortable with coercing the States into enfranchising former slaves, but the Radical Republicans, most of whom had been radical abolitionists, were insistent. Their motives in this were by no means pure. Their motives included political justice for blacks, but also exacting a humiliating vengeance on the South, and most importantly remaking the South into an unassailable bastion of Radical Republican political support. That support would be used to guarantee the permanent political dominance of the Radical Republican faction over the nation and thereby guarantee ongoing success of their economic and political agendas.

The Radical Republican hard core in Congress numbered only about thirty of some 230 Northern Senators and Representatives, but their influence was very powerful, and they had strong and widespread support in the Northern press. Of these thirty, five exercised dominant leadership: Thaddeus Stevens, Representative from Pennsylvania; Benjamin Butler, Representative from Massachusetts; Charles Sumner, Senator from Massachusetts; Benjamin Wade, Senator from Ohio; and Secretary of War, Edwin Stanton.

In December 1865 the Thirteenth Amendment abolished slavery. Included in the three-quarters of the states necessary for ratification were seven Southern States whose governments had been appointed and reconstituted by President Johnson. This, however, did not guarantee many civil rights for the ex-slaves, and as the Southern legislatures began to consist more of elected Democrats, they trended back to more traditional Southern thinking and far away from Radical Republican thinking. The Radical Republicans believed more amendments were needed to insure civil rights, but also to advance their agenda for the South and the nation. Thus the 14th Amendment, which was really a combination of several amendments, was born in concept. Passing the 14th Amendment became a high priority for the Radical Republicans. In passing the 14th Amendment, the Radical Republicans would ruthlessly violate the Constitution, engage in blatantly dishonest and despotic legislative manipulation, and impose a mean-spirited tyranny on the South that would poison race relations and regional trust for generations. Several aspects of the 14th Amendment would essentially turn the Constitution on its head and open the door for widespread Judicial and Congressional abuse and tyranny. The shameful coercion, blatant dishonesty, and numerous legislative and constitutional irregularities involved in passing the 14th Amendment place its legitimacy in extreme doubt.

The Amendment consists of five sections. The first section defines who is a citizen and overturns the Dred Scott v. Sanford Supreme Court decision that denied citizenship to blacks. It also prevented states from abridging the rights of citizens and denying any person due process and equal protection of the laws.

One reason for this section was to prevent Southern states from implementing “Black Codes” limiting the rights of former slaves. Some Mississippi legislation in particular was raising concern that the emancipation of slaves by the 13th Amendment was being circumvented.

At this very time, however, many Northern states had Black Codes more severe than any emerging in the South. Indiana law codes would not allow blacks and mulattos to come into the state. Illinois, the land of Lincoln, and Oregon were almost as restrictive of black immigration. Numerous other Northern states including Kansas, Michigan, Missouri, Connecticut, Minnesota, and Wisconsin had rejected Negro suffrage and with it other rights and privileges of full citizenship.

Section 2 eliminated the three-fifths rule for slaves in apportioning legislative representation. Each person was to be counted as a whole person. This section allowed for reducing representation as a penalty for its violation, and left the door open to abridging the rights of those who had participated in “rebellion.” Section 3 was the most objectionable to the South. It denied public office to any that had supported the Confederacy during the war. This essentially limited civic leadership at any level to the planned constituents of the Radical Republicans. It was not only humiliating and debilitating to the South, but designed to guarantee Republican political hegemony in the South without significant opposition. Section 4 repudiated all Confederate debt, and legitimized the obligation of all citizens to pay for U. S. debt incurred during and after the war. Section 5 gave Congress the power to enforce the other four sections by legislation. This was thought by many to be an open door to increasing federal power over the states, which turned out to be quite true.

The 39th Congress convened in December of 1865 just as the states, including seven Southern states, were finalizing ratification of the 13th Amendment abolishing slavery. The Radical Republicans knew that they could not depend on elected Southern Congressmen to achieve the two-thirds super majorities in the U. S. Senate and House to pass the 14th amendment. Consequently, they mustered a majority in both Houses of Congress that voted not to seat the 22 Senators and 58 representatives from the eleven formerly Confederate, Southern states. This was accomplished in part by “waving the bloody shirt” of Union losses during the war, impugning the patriotism of those willing to welcome the Southern states back into the Union fold, and appealing to partisan greed and lust for power.

However, in the U. S. Senate they could count only 33 of 50 votes, just one short, of that necessary for the two-thirds majority to pass a Constitutional Amendment. To overcome this they devised a plan to retroactively unseat John P. Stockton of New Jersey, an outspoken opponent of the 14th Amendment. It would have required a two-thirds vote to expel Senator Stockton for cause, but they could not muster the votes. After several days of high pressure political maneuvering using the usual accusations and unseemly tactics, the Radical Republicans were able on March 27 to retroactively unseat Stockton. The excuse was that the New Jersey Legislature had elected him by a plurality rather than a majority vote, but this was legal in New Jersey, as well as several other states. Such a retroactive unseating for transparently political objectives was highly irregular, but the 14th Amendment was counted as having passed the Senate on June 13, 1866. A few days earlier the Amendment had passed the U. S. House with 120 votes, easily more than two-thirds of the 152 that voted, but there were 30 abstentions.

The Amendment was then required to go to President Johnson before going to the States for approval. Johnson, an opponent of the Amendment, was somehow bypassed. The Amendment then went to the 37 States. A constitutional amendment requires ratification by three-quarters of the States, or in this case 28.

A rejection or failure to ratify by ten States would have killed the amendment.

Tennessee was the first to ratify the amendment, but without a proper quorum of its legislature. Nevertheless, despite this irregularity, Tennessee was counted for ratification. By February 6, 1867, all ten of the remaining Southern states and three border states had rejected the amendment. California refused to consider it and later rejected it. In addition, Ohio in January of 1868, and New Jersey in March of 1868, reacting to Radical Republican despotism and public displeasure thereof, rescinded their earlier ratifications. Oregon had ratified in September of 1866, but after settling a controversy over a few legislative seats, formerly rescinded in October 15, 1868. The Oregon rescission was too late, however to effect the eventual outcome.

The Radical Republicans, however, had a radical plan to reverse Southern rejections of the 14th Amendment that fit their longer range agenda very well. Under their leadership on March 2, 1867, a Reconstruction Act was passed over the veto of President Johnson that revoked the legal status of the ten Southern states that had rejected the 14th Amendment, and placed them under a military government administered through five U. S. Army districts.

The inconsistency or rather appalling capriciousness and hypocrisy of the Radical Republican position should be noted here. If the Southern States were legal enough to have just ratified the 13th Amendment, how could Thaddeus Stevens now say that these same states were “without any legal authority?” It demonstrated once again the arbitrary and tyrannical mindset of the Radical Republicans, which would become increasingly evident during the years of Reconstruction. It was also certainly evident in their contrived attempt to impeach President Andrew Johnson for trying to dismiss his Secretary of War Edwin Stanton. But as previously indicated, the Radical Republicans had little regard for the Constitution, legal precedent, any concept of fairness, or honest parliamentary procedure.

And what of the declared Union objectives of the War? Reunification of the states now became secondary to the vengeful and totalitarian will of a few men who proclaimed themselves to be the will of the people. The Radical Republican vision for the South can be clearly seen here. In effect, after a long and bloody war “to hold the Union together,” Radical Republicans now kicked the South out of the Union for their own selfish, political purposes. Southern states were to be subjugated tools of Radical Republican ambitions. Every vestige of their culture, heritage, and political sovereignty would be subjected to a campaign of deliberate debasement and attempted eradication. It revealed that a strong underlying Northern motivation for the War was keeping the South under their economic and political control as subjugated territories stripped of their political rights. The purpose of the Reconstruction was to further subjugate and exploit the South, and this was done with a spirit of malice. Re-admission depended upon their declared acceptance of the 14th Amendment

One of the provisions of the Reconstruction Act was to enfranchise black males and disenfranchise all Confederate veterans and former Confederate officials. Hence almost the entire white male population of the South except recent Northern immigrants and proven Union loyalists were without vote or voice in state, local, or federal government. Enflaming the hatred of former slaves against their former masters was to be an important Radical Republican tool for political dominance. Other sections of the act were designed to subdue Southern spirit and provide for continued economic exploitation of the South. This was to establish a permanent Republican dominance in the South and thereby the nation. The war had been ruinous, but military and “carpetbagger” governments would see to it that the ruin was increased and recovery was slow. Reconstruction was to be continued war by ruthless and unsavory political means.

Kentucky had not only rejected the amendment in January 1867, but by overwhelming majorities in a May 1867 election, sent a solid slate of nine Democrats to Congress. On July 3, the Radical Republican Congress voted not to seat them. On July 5, Senator Sumner of Massachusetts threatened to place Kentucky and Maryland under military government. No action was taken on this, however, as Republicans began losing off year elections to Democrats in Northern states.

It was now demanded of the ten Southern States under military government that statehood would not be regained unless they ratified the 14th Amendment. Six Southern states complied with the reconstructive coercion, and with the ratifications of South Carolina and Louisiana on July 9, 1868, Congress declared the 14th Amendment ratified, ignoring the rescissions of Ohio, and New Jersey, and the impending rescission of Oregon. By law, however, the official recognition of ratification of a constitutional amendment, rested with the Secretary of State, William H. Seward. Seward proclaimed ratification of the 14th Amendment on July 20, but in his written and oral proclamation he referred to the questionable status of the Ohio and New Jersey ratifications in view of their later rescissions. Congress was unhappy with this. The next day, assuming the function of the Secretary of State, Congress proclaimed by joint resolution that the 14th Amendment was officially ratified. On July 28, Seward bowed to the Congressional resolution of the 21st and proclaimed the Amendment ratified. With all the irregularities, frauds, and coercions involved, however, what fair minded person would recognize the 14th Amendment as constitutional? Yet it is accepted as such, and there are now many precedents in law based on the 14th Amendment.

The 14th Amendment in many senses turned the original Constitution and the first Ten Amendments on their head. With the 14th Amendment the nation has progressed from a philosophy of decentralized, limited government to a government increasingly characterized by highly centralized power. States Rights, once an essential check against excessive executive, judicial, and congressional power has been reduced to a meek whisper. Before the “Civil War” and the 14th Amendment no federal judge would even contemplate removing the Ten Commandments from the Alabama Supreme Court building or striking down state legislation on abortion, much less making laws that forced young children to be bussed across a county to achieve an ideal racial balance, or prohibiting bibles in schools and prayer at high school athletic events. Congress now passes sweeping legislation that is clearly beyond the bounds of their enumerated powers in the Articles of the Constitution and in violation of the Bill of Rights, especially the 10th Amendment.

The 14th Amendment has some positives. More attention is paid to individual civil rights and perhaps due process, but it has come at a price of considerable loss of freedom and liberties to individuals, businesses, churches, civic, educational, and social organizations, and various spheres of local and state government. It also made us a coercive rather than a voluntary society. Every year under the penumbra of the 14th Amendment, we progress further toward totalitarian government with little accountability or responsiveness to the governed or any concern for constitutional limits of power.

The history of the passage of the 14th Amendment unveils a remarkable corruption of the spirit of liberty and flagrant despotism that has been covered with decades of politically correct whitewash. Such demonstrations of human depravity and course tyranny though shameful should not be covered up by a misguided sense of American patriotism. Few things are as necessary to a just society as truth. Hence a sine qua non of all genuine patriotism is a high regard for truth. Truth is always the high ground.

“Whoever conceals his transgressions will not prosper, but he who confesses and forsakes them will obtain mercy.” Proverbs 28: 13, ESV.

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