fourteenth amendment background and joint committee on reconstruction

The Joint Committee therefore set to work in January 1866. While gathering testimony from witnesses about the plight of the Freedmen, the Committee also developed language for the 14th Amendment. High on their list of priorities was to deflect criticism that had arisen from the 13th Amendment and the early versions of the Civil Rights Act of 1866 (CRA) which were then being considered in the Senate Judiciary Committee. That criticism, as I have previously mentioned, was whether Congress would be overstepping its authority under Sec. 2 of the 13th Amendment by passing the CRA. The Joint Committee wanted to use the instrumentality of the 14th Amendment to remove all such doubts. Therefore there had to be language about equal rights or equal justice or something like that in the Amendment, along with a section authorizing Congress to pass legislation to realize that end.

We need to understand one other reality before diving into the various proposals that emerged for the 14th Amendment. Even though the Amendment in its approved form has five tidy sections, it was not so introduced. Except for the very first drafts of Secs. 1 and 2, various sections were considered independently of each other, and the language of Secs. 3 and 4, for example, wasn't even in the Committee's mind until March 1866. The first big issues were Southern representation when they were readmitted to the Union and the notion of equality.

Representation

At first the Committee focused on the burning issue of Southern representation when the states were readmitted to the Union. As Eric Foner points out in Reconstruction (pp. 252ff.), at first the Committee favored a proposal that would base representation on the number of qualified voters (males only, instead of total number of citizens), which would leave voting requirements with the states but indirectly promote black suffrage. But this proposal was rejected when it was pointed out that by it New England and the Eastern states would lose out to the relatively less populated West because the West had relatively few women (ratio was 3 men for every 1 woman in CA and OR, for example), and the East had more women than men. This then was the basis for the Committee's second proposal, which was then submitted to the full House and Senate: that representation should be based on federal census numbers but that if a state denied representation to any citizen because of race, all members of that race would be excluded from enumeration. Hence this was a "carrot" method to get Southern states to allow the franchise to Blacks. This amendment passed the House on January 31, 1866.

This proposal ran into the buzz saw of Charles Sumner in the Senate. Possibly rankled that he had been excluded from the Committee in December, Sumner used the debate in the Senate on the representation issue to launch a two-day, five-hour speech that takes up more than 60 pages in his collected works. Entitling his speeh "Equal Rights for All," Sumner proceeded to attack the proposal because it gave the Southern states an "out" if they didn't want to enfranchise Blacks. The Northerners would, in effect, be saying to the South: 'As long as you don't mind that we control the Congress, you can continue to treat Blacks shabbily, by denying them the franchise.' So, for five hours, Sumner railed, giving a history of the concept of representative government, quoting everything (as he told a friend) "from Plato to the last French pamphlet." The next day Fessenden chided Sumner for his "very violent--I had almost said virulent attack" on the Amendment, and other Republicans roundly criticized him. Nevertheless, Sumner managed to assemble a few other Radical Republicans who, when combined with Democrats, gave less than a 2/3 majority to the proposal--thus killing it. The irony, as many scholars have noted, is that when a revised proposal emerged from the Committee, in language looking very similar to the rejected one, Sumner didn't raise an objection.

And, so, what now is Sec. 2 is somewhat different from the late January proposal, but it bears a family resemblance to it. Representation would be based on the federal census, not male voters, but if voting rights were "in any way abridged," representation would be reduced "in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State." This language actually is not very clear but, because of the passage of the 15th Amendment and the subsequent end of Reconstruction, this portion of the 14th Amendment was never enforced.

Equality

More important for the long term was what eventually became Sec. 1 of the Amendment, the section on equality. Most scholars attribute the language of the four clauses in the section to John A. Bingham, a Republican from OH. One might glean his approach to equal rights from a number of sources, but easily accessible is his attack on the admission of Oregon to the Union in 1859 because Oregon's Constitution had a provision not allowing free Blacks to reside in the State. (Congressional Globe, 35th Cong., 2nd Sess, vol 1, 1858ff.). The evolution of "equality" language in the Joint Committee rewards careful consideration. The remainder of this essay will only introduce a few such statements, with the next essay showing how the equality language finally emerged from the Committee.

The two Committee members most concerned with introducing equality-type language were Thaddeus Stevens and Bingham. I take these statements from ten Broek's Equal Under Law, pp 205f.

(1) From Dec. 5, 1865 (Stevens): "All national and state laws shall be equally applicable to every citizen, and no discrimination shall be made on account of race and color."

(2) From Dec. 6, 1865 (Bingham): Congress shall be empowered "to pass all necessary and proper laws to secure to all persons in every State in the Union equal protection in their rights, life, liberty and property."

Before the Committee even had a chance to meet, then, these two proposals were "on the table." We see the "big" words: discrimination, equal protection, life, liberty and property, and thus we see that the debate is going to be about "lofty" terms, even as the proposals are refined.

The next essay continues this story.

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