THE FOURTEENTH AMENDMENT

While the events in the preceding chapter were transpiring, a joint committee on Reconstruction were making an inquiry into the condition of the ex-Confederate States in order to determine whether they or any of them were entitled to immediate representation in Congress. It consisted of Senators Fessenden, Grimes, Harris, Howard, Williams, and Johnson, and Representatives Stevens, Washburne, of Illinois, Morrill, of Vermont, Bingham, Conkling, Boutwell, Blow, Rogers, and Grider. Senator Reverdy Johnson and Representatives Rogers and Grider were Democrats. All the others were Republicans. There was a preponderance of conservatives on the committee. Senator Fessenden was the chairman, and his selection for the place marked him as princeps senatus in the estimation of his colleagues.

While the Civil Rights Bill was pending in the House, we have seen that Bingham, of Ohio, made a speech against it and voted against it, holding it to be unconstitutional. He had supported the Freedmen's Bureau Bill because it applied only to states in the inchoate condition which then existed. It was to be inoperative in any state, when restored to its constitutional relations with the Union. The Civil Rights Bill, on the other hand, was to apply to the whole country, North and South, without limit as to time, and to affect the civil and criminal code of every State Government. He held that there was no constitutional warrant for this, either in the Thirteenth Amendment or elsewhere. In order to cure the supposed defect, Bingham proposed to the Reconstruction Committee a new constitutional amendment in these words:

The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each state all privileges and immunities of citizens in the several states, and to all persons in the several states equal protection in the rights of life, liberty, and property.

This was agreed to by the committee, but before it was reported to the House, Stevens presented a series of amendments consisting of five sections which had been prepared by Robert Dale Owen, a distinguished publicist, who was not a member of the Congress. This series had met Stevens's approval, and after some delay and some changes it was adopted by the committee. Bingham then withdrew his own proposed amendment and offered the following in place of it, which was adopted as section one:

No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.

The difference between this provision and the first one proposed by Bingham was the whole difference between giving Congress power to pass laws for the administration of justice in the states and merely prohibiting the states from making discriminations between citizens. There was no definition of citizenship in the amendment as reported by the joint committee. Apparently they relied upon the Civil Rights Act, which had been passed over the President's veto, to supply that definition, but shortly before the final vote was taken in the Senate, Howard, who had charge of the measure in the temporary illness of Fessenden, proposed the following words to be placed at the beginning of the first section.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.

The reason for adopting this clause was to validate the corresponding part of the Civil Rights Act and put it beyond repeal, in the event that the Republicans should at some future time lose control of Congress.

In addition to the first section, as shown above, the amendment provided that Representatives should be apportioned among the several states according to population, but that when the right to vote was denied in any state to any of the male inhabitants who were twenty-one years of age and citizens of the United States, except for rebellion or other crime, the representation of such state in Congress and the Electoral College should be proportionately reduced. Also that no person should hold any office under the United States or any state who, having previously taken an oath to support the Constitution of the United States, had engaged in insurrection or rebellion against the same, but that Congress might, by a two-thirds vote, remove such disability. Also that the validity of the public debt of the United States should not be questioned, but that no debt incurred in aid of insurrection or rebellion should ever be paid by the United States or any state. The concluding section provided that Congress should have power to enforce by appropriate legislation the provisions of the article.

The Fourteenth Amendment passed the Senate June 8, by 33 to 11, and the House June 13, by 138 to 36. Sumner had opposed it bitterly in debate because it dodged, as he said, the question of negro suffrage; but when the vote was taken he recorded himself in the affirmative.

The report of the committee giving the reasons for their action was submitted on the 18th of June. It held that the seceding states, having withdrawn from Congress and levied war against the United States, could be restored to their former places only by permission of the constitutional power against which they had rebelled acting through all the coÖrdinate branches of the Government and not by the executive department alone.

If the President [it said] may, at his will and under his own authority, whether as military commander, or chief executive, qualify persons to appoint Senators and elect Representatives, and empower others to elect and appoint them, he thereby practically controls the organization of the legislative department. The constitutional form of government is thereby practically destroyed, and its powers absorbed by the Executive. And while your committee do not for a moment impute to the President any such design, but cheerfully concede to him the most patriotic motives, they cannot but look with alarm upon a precedent so fraught with danger to the Republic.

This conclusion was logical but misleading. The danger to the Republic lay not in the absorption of powers by the Executive, but in the prolongation of chaos, in dethroning intelligence, and arming ignorance in the desolated districts of the South.[96]

Stevens also reported a bill "to provide for restoring the states lately in insurrection to their full political rights." It recited that whenever the Fourteenth Amendment should become a part of the Constitution, and any state lately in insurrection should have ratified it and conformed itself thereto, its duly elected Senators and Representatives would be admissible to seats in Congress. This bill was not acted on, but lay on the table of each house awaiting the action of the Southern States on the proposed amendment.

On July 23, the two houses adopted a preamble and joint resolution admitting Tennessee to her former relations to the Union. The preamble recited that that state had ratified the Thirteenth and Fourteenth Amendments to the Constitution. There were only four negative votes on the Tennessee bill: Brown and Sumner, Republicans, and Buckalew and McDougall, Democrats. The President signed the bill, but he added a brief message explaining that his reason for doing so was that he desired to remove every cause of further delay, whether real or imaginary, to the admission of the Representatives of Tennessee, but he affirmed that Congress could not rightfully make the passage of such a law a condition precedent to such admission in the case of Tennessee, or of any other state.

The next event of importance in the controversy over Reconstruction was the National Union Convention held in Philadelphia on the 14th of August. It was composed of delegates from all the states and territories, North and South, who sustained the President's policy and acquiesced in the results of the war, including the abolition of slavery. This came to be known as the "Arm-in-Arm Convention" as the procession leading to the platform was headed by two delegates, one from Massachusetts and one from South Carolina, walking together with their arms joined. The signers of the call embraced the names of A. W. Randall, ex-governor of Wisconsin, Senators Cowan, Doolittle, Fowler, Norton, Dixon, Nesmith, and Hendricks, and ex-senator Browning, then Secretary of the Interior. The convention itself was eminently respectable in point of numbers and character. It was presided over by Senator Doolittle, and the chairman of its Committee on Resolutions was Senator Cowan. The resolutions adopted were ten in number and were faultless in principle and in expression. They were conveyed to the President by a committee of seventy-two persons. The effect of this dignified movement was offset and neutralized in large part by one paragraph of the President's reply to the presentation speech, namely:

We have witnessed in one department of the Government every endeavor to prevent the restoration of peace, harmony, and union. We have seen hanging upon the verge of the Government, as it were, a body called, or which assumed to be, the Congress of the United States, while in fact it is a Congress of only a part of the states. We have seen this Congress pretend to be for the Union when its every step and act tended to perpetuate disunion and make the disruption of the states inevitable. Instead of promoting reconciliation and harmony its legislation has partaken of the character of penalties, retaliation, and revenge. This has been the course and policy of your Government.

This impeachment of the legality of Congress was followed by a battle in the political field, which raged with increasing fury during the whole remainder of Johnson's term of office and projected itself into the two terms of President Grant and the beginning of that of President Hayes, embracing the episodes of the impeachment trial and the Liberal Republican movement of 1872. All of this turmoil, and the suffering which it brought upon the South, would, probably, have been avoided if Lincoln, with his strong hold upon the loyal sentiment of the country and his readiness to conciliate opponents, without surrendering principle, had not been assassinated. They became possible if not inevitable when the presidential chair was taken, in a time of crisis, by a man of combative temper, without prestige in the North, and devoid of tact although of good intentions and undoubted patriotism.

The Southern States refused to agree to the Fourteenth Amendment. To them the insuperable objection was the clause excluding from the office-holding class those who had taken an oath to support the Constitution of the United States and had afterwards engaged in insurrection against the same. The common people refused to accept better terms than were accorded to their leaders. This was true chivalry and is not to be condemned, but the consequence was an increase of the power of the radicals in the North. It disabled conservatives like Fessenden, Trumbull, and Grimes in Congress, John A. Andrew, Henry Ward Beecher, and William C. Bryant, influential in other walks in life, from making effective resistance to the measures of Sumner and Stevens. If the Fourteenth Amendment had been ratified by any of the other ex-Confederate States, such states would have been admitted at once as Tennessee was. Both Wade and Howard, hot radicals as they were, refused to go with Sumner when he insisted that further conditions should be exacted. When he offered an amendment looking to negro suffrage, Howard said that the Joint Committee on Reconstruction had maturely considered that question and had carefully abstained from interfering with "that very sacred right"—the right of each state to regulate the suffrage within its own limits. He argued that it was inexpedient in a party point of view to do so, and predicted that if the rebel states were coerced to adopt negro suffrage by an act of Congress, or by constitutional amendment, they would rid themselves of it after gaining admission.[97]