BIRTHRIGHT CITIZENSHIP: Does the 14th Amendment Really Recognize It for Illegal Aliens?

ILLEGAL IMMIGRATION - Birthright Citizenship

by Diane Rufino, November 16, 2018

The term “birthright citizenship” refers to the idea that you can become a citizen of a country simply by being born there. The fancy legal term is jus soli, “right of the soil” (as opposed to the policy termed jus sangunis (“right of blood”) by which nationality or citizenship is not determined by place of birth, but by having an ancestor who is a national or citizen of the state.

In this country, citizenship is defined not in the Constitution per se, but in the first section of the 14th Amendment. It is referred to as the Citizenship Clause” and reads: “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…… “

It is currently the object of great contention right now after President Trump announced he was planning on eliminating “birthright citizenship” as it pertains to those entering our country illegally.

The purpose of this article is to explain why the “Citizenship Clause” cannot be understood, or should be interpreted, to include birthright citizenship to babies born to illegal aliens.

The 14th Amendment is one of the three post-Civil War Reconstruction era amendments to the Constitution – the 13th (abolishing slavery and indentured servitude), 14th (giving freed blacks citizenship and civil rights), and 15th (giving blacks the right to vote). It passed in the US House, after several proposals were considered, in May 1866 (House Resolution 127, 39th Congress), sent to the Senate where amendments were added, and sent back to the House which eventually agreed to the Senate amendments on June 18, 1868. On June 18, a concurrent resolution requesting the President to transmit the proposal to the executives of the several states was passed by both houses of Congress.

It’s general intent, at least that of the first section, was to vest newly-freed slaves, and other African-Americans with the rights of citizenship in light of the 13th Amendment which had abolished slavery and in light of the Dred Scott decision of 1857 which held that any person descended from Africa (Africans), whether slave or free, is not a citizen of the United States, according to the US Constitution.

I. HISTORY:

In 1857, the US Supreme Court handed down arguably the most offensive opinion issued by the high court, or any court – the Dred Scott v. Sandford opinion (commonly just referred to as the Dred Scott opinion).

The case had been in the court system for more than a decade. Scott had been born into slavery in 1795. In subsequent years, he lived in two parts of the United States that didn’t allow slavery, Illinois and Wisconsin, along with his master. When his current master died in 1846, Scott filed suit on behalf of himself and his wife, also a slave, to gain their freedom. The case was heard by three other courts as it made its way to Washington.
The Court ruled, in a 7-2 opinion, against Scott. Judge Roger Taney wrote the opinion of the Court, which highlighted, include the following:

4. A free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a “citizen” within the meaning of the Constitution of the United States. The words “people of the United States” and “citizens” are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty and who hold the power and conduct the Government through their representatives. They are what we familiarly call the “sovereign people,” and every citizen is one of this people, and a constituent member of this sovereignty. The question before us is whether the class of persons described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word “citizens” in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.

5. When the Constitution was adopted, they were not regarded in any of the States as members of the community which constituted the State, and were not numbered among its “people or citizens.” Consequently, the special rights and immunities guaranteed to citizens do not apply to them. And not being “citizens” within the meaning of the Constitution, they are not entitled to sue in that character in a court of the United States, and the Circuit Court has not jurisdiction in such a suit.

6. The only two clauses in the Constitution which point to this race treat them as persons whom it was morally lawfully to deal in as articles of property and to hold as slaves.

7. Since the adoption of the Constitution of the United States, no State can by any subsequent law make a foreigner or any other description of persons citizens of the United States, nor entitle them to the rights and privileges secured to citizens by that instrument.

8. A State, by its laws passed since the adoption of the Constitution, may put a foreigner or any other description of persons upon a footing with its own citizens as to all the rights and privileges enjoyed by them within its dominion and by its laws. But that will not make him a citizen of the United States, nor entitle him to sue in its courts, nor to any of the privileges and immunities of a citizen in another State.

9. The change in public opinion and feeling in relation to the African race which has taken place since the adoption of the Constitution cannot change its construction and meaning, and it must be construed and administered now according to its true meaning and intention when it was formed and adopted.

[Taken from the Opinion – Dred Scott v. Sandford, 60 U.S. 393. Go to the Appendix for more information on the case]

In a poor exercise of reasoning, Judge Taney argued: “There are two clauses in the Constitution which point directly and specifically to the negro race as a separate class of persons, and show clearly that they were not regarded as a portion of the people or citizens of the Government then formed.”

The Dred Scott decision (“opinion’) came just two days after President James Buchanan took office, and it set the tone for his controversial term that led to the Civil War. The decision was celebrated in the South but the Abolitionists in the North were outraged. The court also declared the Missouri Compromise of 1820 to be unconstitutional. And it said that Congress did not have the authority to prohibit slavery in the territories, which would seem to prohibit Lincoln from his campaign promise to prohibit the spread of slavery into the western territories.

With the Dred Scott decision and its voiding of the Missouri Compromise, thus making slavery legal in all U.S. territories, and the promise by candidate Abraham Lincoln that he would enforce the Morrill tariff (the highest tariff yet, up to 47% by 1863) passed by Congress in May 1860 and signed by President Buchanan), the election of 1860 was a completely sectional election – pitting the North against the South.

In November 6, 1860, Lincoln was elected the 16th president of the United States, without an actual majority (less than 40%) and without a single vote from any of the Southern states that would later form the Confederacy (except Virginia, where he got 1%). On December 20, the South Carolina state legislature voted to secede from the Union (issuing its “Declaration of the Immediate Causes which Induce and Justify the Secession of South Carolina” on December 24). Six other states followed suit before Lincoln was even inaugurated: Mississippi (on January 9, 1861), Florida (on January 10), Alabama (on January 11), Georgia (on January 19), Louisiana (on January 26), and Texas (on February 1). On February 8, the seceded states met and held a convention in Montgomery, Alabama and agreed to form a Union – the Confederate States of America. They adopted a constitution at that convention, which by many accounts was superior to the US Constitution.

Lincoln was inaugurated on March 4, 1861 and on April 12, shots were fired by South Carolina on Fort Sumter (held by Union Major Anderson), giving him the pretext to invade the South and begin the Civil War. Rejecting the natural right of secession, he characterized the actions of the Southern states as “rebellion,” and used the armed forces of the United States to “force them back into the Union” (which was confusing since Lincoln claimed they never left the Union since they didn’t have the right to do so).
Lincoln called the question about whether the Southern states were in or out of the Union a “pernicious abstraction.” “Obviously,” he explained, they were not “in their proper practical relation with the Union.

After General Robert E. Lee’s surrender at Appomattox on April 9, 1865 and Lincoln’s assassination on April 14 (he died the following morning), the country entered into a decade-long period, or process, known as “Reconstruction” – the “reconstructing” of the Union. Through this process of Reconstruction, the Northern-dominated federal government attempted to resolve the political and constitutional issues that led to the Civil War and in effect, through punishment of the South (those responsible for seceding and those in support of the Confederacy) and by changing the body politic of the former Confederate states. The priorities were: to guarantee that Confederate nationalism and slavery were ended, to ratify and enforce the 13th Amendment which outlawed slavery; the 14th Amendment which guaranteed dual U.S. and state citizenship to all native-born residents, regardless of race; and the 15th Amendment, which made it illegal to deny the right to vote because of race.

The US House passed the 13th Amendment in January of 1865, without any representation from the Southern states (their representatives were not allowed to be seated), and then sent to the states for ratification. As for the former Confederate states, the amendment was submitted to “reconstruction governments,” devoid of anyone that had “supported the Confederacy.” The question as to whether these were in fact legitimate legislatures is a valid one. Nevertheless, the 13th Amendment was ratified by 3/4 of the states, and hence certified as valid, on December 18, 1865.

Next would come the 14th Amendment.

It would play an important role in Reconstruction (in the North’s reconstruction of the South back into the Union).

When it looked as if the North would defeat the South, even before Sherman’s march, Republicans had began to make plans for the reconstruction of the war-torn and still greatly divided country. Their most important concerns were for the formal adoption of the 14th Amendment (which they intended would elevate newly-freed slaves and free black persons to full citizenship), elimination from power anyone who supported the Confederacy, and the adoption of black male suffrage provisions (to dilute the South Democrats) as conditions for re-admission.

The 14th Amendment was intended to memorialize the guarantees of the 1965 Civil Rights Act in the US Constitution. In 1865, Congress passed what would become the Civil Rights Act of 1866, guaranteeing citizenship without regard to race, color, or previous condition of slavery or involuntary servitude. The bill also guaranteed equal benefits and access to the law, a direct assault on the Black Codes passed by many post-war states. The Black Codes attempted to return ex-slaves to something like their former condition by, among other things, restricting their movement, forcing them to enter into year-long labor contracts, prohibiting them from owning firearms, and preventing them from suing or testifying in court.

Although strongly urged by moderates in Congress to sign the bill, President Andrew Johnson vetoed it on March 27, 1866. In his veto message, he objected to the measure because it conferred citizenship on the freedmen at a time when 11 out of 36 states were unrepresented in the Congress, and that it discriminated in favor of African-Americans and against whites. Three weeks later, Johnson’s veto was overridden and on April 9, the measure became law. Despite this victory, even some Republicans who had supported the goals of the Civil Rights Act began to doubt that Congress really possessed constitutional power to turn those goals into laws. The experience also encouraged both radical and moderate Republicans to seek Constitutional guarantees for black rights, rather than relying on temporary political majorities.

While the Civil Rights Act of 1866 addressed many of Congress’s concerns about citizenship and civil rights, several members of Congress worried about the Act’s constitutionality and permanence. Two months after the Act became law, Congress would approve H.R. Res. 127, which when ratified by the states would become the 14th Amendment. Addressing citizenship in words almost identical to those of the 14th Amendment, the Civil Rights Act declared: “That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States . . . .”

The Act then addressed certain specified civil rights by saying:

“Such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.”

In late 1865, Rep. John A. Bingham of Ohio, who was a member of the Joint Committee of Fifteen on Reconstruction, proposed a constitutional amendment which would enable Congress to safeguard “equal protection of life, liberty, and property” of all citizens; this proposal failed to pass the House. In April 1866, the Joint Committee forwarded a third proposal to Congress, a carefully negotiated compromise that combined elements of the first and second proposals as well as addressing the issues of Confederate debt and voting by ex-Confederates. The House of Representatives (39th Congress) passed House Resolution 127 several weeks later and sent to the Senate for action. The resolution was debated and several amendments to it were proposed. Amendments to Sections 2, 3, and 4 were adopted on June 8, 1866, and the modified resolution passed by a 33 to 11 vote (5 absent, not voting). The House agreed to the Senate amendments on June 13 by a 138–36 vote (10 not voting). The “Citizenship Clause” was added by Senator Jacob Howard of Michigan.

That is the very simplified history of the 14th Amendment.

As most of you know, either through your reading, your learning of Supreme Court or other federal court opinions regarding civil rights or discrimination (the 14th Amendment being the #1 basis for lawsuits), your history courses, your study of law, or even just listening to the heated debates by legal experts and pundits on TV, the absolute meaning of the 14th Amendment is not known; it means different things to different people. It meant one thing to the Supreme Court at the end of the 20th century (Slaughterhouse cases, 1873) and early 21st century, but meant something else in later cases.

So I think it’s important to take a closer look at the proposal of the amendment and its adoption by the US House and Senate.

Congress had two important concerns about civil rights in 1866. One was that the Bill of Rights by itself did not limit the actions of state governments and the other was the Congress lacked any express power to enforce the Bill of Rights against the states. Congress ultimately addressed these concerns in Sections 1 and 5 of the 14th Amendment. But before Congress approved H.R. Res. 127, the House considered another provision, H.R. Res. 63, which had similar objectives. H.R. Res. 63 arose in the Joint Committee. On January 12, the Joint Committee formed a subcommittee on the powers of Congress.209 On January 27, 1866, Representative Bingham reported to the full committee that the subcommittee had approved a proposed amendment. The subcommittee’s proposal said:

“Congress shall have power to make laws which shall be necessary and proper to secure to all persons in every state full protection in the enjoyment of life, liberty and property; and to all citizens of the United States in any State the same immunities and equal political rights and privileges.”

Although the Journal of the Joint Committee does not report the debates of the full committee, it does show that the full committee made minor amendments to the proposal on both January 27 and February 3. On February 10, the Committee then voted to send the proposed amendment to both Houses of Congress as a proposed constitutional amendment.

On February 26, Representative Bingham introduced the proposed constitutional amendment to the House as a joint resolution, H.R. Res. 63. The proposal, as it had been revised by the full committee, said:

“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 (Art. 4, Sec. 2), and to all persons in the several States equal protection in the rights of life, liberty, and property (5th Amendment).”

After quoting the Privileges and Immunities Clause in Article V and the last clause of the Fifth Amendment, Representative Bingham said:

“Sir, it has been the want of the Republic that there was not an express grant of power in the Constitution to enable the whole people of every State, by congressional enactment, to enforce obedience to these requirements of the Constitution. Nothing can be plainer to thoughtful men than that if the grant of power had been originally conferred upon the Congress of the nation, and legislation had been upon your statute-books to enforce these requirements of the Constitution in every State, that rebellion, which has scarred and blasted the land, would have been an impossibility.”

Representative Bingham explained that the proposed amendment would solve these problems. He said: “The proposition pending before the House is simply a proposition to arm the Congress of the United States, by the consent of the people of the United States, with the power to enforce the bill of rights as it stands in the Constitution today.”‘

The House of Representatives debated H.R. Res. 63 on February 26-28. Despite Representative Bingham’s arguments, opponents of the proposal strongly objected that it went too far. The Supreme Court summarized the opposition to H.R. Res. 63 in City of Boerne v. Flores (1997):

“Some argued that the] proposed Amendment gave Congress too much legislative power at the expense of the existing constitutional structure. Democrats and conservative Republicans argued that the proposed Amendment would give Congress a power to intrude into traditional areas of state responsibility, a power inconsistent with the federal design central to the Constitution. Typifying these views, Republican Representative Robert Hale of New York labeled the Amendment “an utter departure from every principle ever dreamed of by the men who framed our Constitution,” and warned that under it “all State legislation, in its codes of civil and criminal jurisprudence and procedure . . . may be overridden, may be repealed or abolished, and the law of Congress established instead.” Senator William Stewart of Nevada likewise stated the Amendment would permit “Congress to legislate fully upon all subjects affecting life, liberty, and property,” such that “there would not be much left for the State Legislatures,” and would thereby “work an entire change in our form of government.” Some radicals, like their brethren “unwilling that Congress shall have any such power . . . to establish uniform laws throughout the United States upon . . . the protection of life, liberty, and property,” also objected that giving Congress primary responsibility for enforcing legal equality would place power in the hands of changing congressional majorities.”

On February 28, 1866, when it appeared that the proposal would not gain approval, the House voted to postpone consideration until “the second Tuesday in April” (i.e., April 10, 1866).

After these unsuccessful initial attempts to approve the previously discussed joint resolutions proposing amendments to the Constitution, Congress finally succeeded with H.R. Res. 127, the provision that became the 14th Amendment. H.R. Res. 127 was broader in scope than the prior proposals. It addressed all of the subjects of H.R. Res. 9, H.R. Res. 51, and H.R. Res. 63. It also included a provision on the eligibility of former Confederate officials to hold government office.

On April 21, 1866, Representative Stevens introduced into the Joint Committee “a plan of reconstruction, one not of his own framing, but [one] which he should support.” This proposal contained five sections. Section 1 of the April 21 proposal in the Committee said: “No discrimination shall be made by any state, nor by the United States, as to the civil rights of persons because of race, color, or previous condition of servitude.”‘ The Committee revised this sentence substantially before submitting it to Congress. As introduced in Congress, the proposal said:

“No State shall make or enforce any law which shall abridge the privileges or 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.”

Two features of the revision in the Committee deserve mention. First, as the text shows, the Committee decided to drop all mention of race. The revised version sounds very much like H.R. Res. 63, but does not say anything about the powers of Congress.

Section 2 of the April 21 proposal would have banned racial discrimination with respect to the right to vote. The proposal said: “From and after the fourth day of July, in the year one thousand eight hundred and seventy-six, no discrimination shall be made by any state, nor by the United States, as to the enjoyment by classes of persons of the right of suffrage, because of race, color, or previous condition of servitude.”

The Committee, however, deleted the original Section 2. Because the Journal does not record committee discussions, the reasons for deleting this provision are lost to history. Voting discrimination became a subject that ultimately would be addressed by the 15th Amendment (ratified in 1870).

The Joint Committee debated the proposal of April 21 and, as explained above, made various revisions before approving it for submission to Congress on April 28, 1866. Representative Stevens introduced the proposal into the House on April 30, 1866, as H.R. Res. 127, but the House voted to postpone discussing the proposal until May 8.

On May 8, Representative Stevens gave a long speech in which he explained the meaning and purpose of each section. The House debated H.R. Res. 127 on May 8, 9, and 10. On May 10, the House voted to approve H.R. Res. 127, without amendment, by a two-thirds majority (128 yeas, 37 nays, and 19 not voting). [NOTE: The House never reopened H.R. Res. 63. On June 6, 1866, Representative Bingham moved that it “be indefinitely postponed, for reason that the constitutional amendment [H.R. Res. 127] already passed by the House covers the whole subject matter.” The House approved the motion. The Senate never considered H.R. Res. 63].

H.R. Res. 127 was introduced into the Senate on May 10, but no discussion occurred on that day.” On May 23, Senator Howard initiated the Senate’s consideration of H.R. Res. 127 by analyzing each of its five sections. The Senate discussed H.R. Res. 127 as a committee of the whole on May 23, 24, and 29, and during at time, the made various amendments to it. Discussions continued in both committee and in regular sessions until June 8. [Regular sessions on May 30 and 31, and as a committee of the whole from June 4 to June 8].

On May 23, 1866, Senator Benjamin Wade, Republican of Ohio, suggested that, given the importance in Section 1 of a guarantee of privileges or immunities to United States citizens, it was imperative that a “strong and clear” definition of citizenship be added to the proposed 14th Amendment – a “Citizenship clause.” He suggested “persons born in the United States or naturalized by the laws thereof.” Senator Howard, Republican of Michigan, responded on May 30, 1866, with a proposal that was drafted in the Joint Committee on Reconstruction which eventually became the first sentence of the 14th Amendment as it was finally adopted. It read: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside.” Both Howard and the Joint Committee evidently placed some importance on the addition of the jurisdiction clause, which meant, at a minimum, that not all persons born in the United States were automatically citizens, but also had to be subject to the jurisdiction of the United States.

This is how we got the “Citizenship Clause” of the 14th Amendment.

Senator Howard and others discussed the purpose, meaning, and limitations of this amendment to the proposal on May 30. He explained that the purpose of the first sentence was to eliminate doubt caused by the Dred Scott decision on the issue of citizenship. He said: “It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States.” In that statement, Senator Howard was not explaining the meaning of the first sentence of Section 1, but instead the purpose that the first sentence serves. The sentence had the effect of overruling the Supreme Court’s decision in Dred Scott that persons of African descent could never be citizens. Senator Revardy Johnson, who as an attorney had represented John Sanford against petitioner Dred Scott before the Supreme Court, supported the amendment. Without discussing his former role in the matter, he subtly mentioned that “serious questions have arisen, and some of them have given rise to embarrassments, as to who are citizens of the United States, and what are the rights which belong to them as such; and the object of this amendment is to settle that question.”‘ When the matter came before the House, Representative Stevens merely commented: “This is an excellent amendment, long needed to settle conflicting decisions between the several States and the United States.”

His remarks introducing the new language in the Senate have attracted much attention — and much controversy.

Senator Howard said:

“I do not propose to say anything on that subject except that the question of citizenship has been so fully discussed in this body as not to need any further elucidation, in my opinion. This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.”

On June 8, 1866, the Senate approved the amended version of H.R. Res. 127 by a two-thirds vote (33 yeas, 11 nays). Because the Senate had approved an amended version, the joint resolution had to go back to the House to see if the House would concur in the Senate’s amendments. The amended version of H.R. Res. 127 was introduced in the House on June 9. The House debated the amended version on June 13. Rep. Thaddeus Stevens, the Committee Chair, briefly described the Senate’s amendments, some of which he approved and some of which he disfavored. In the end, the House concurred in the Senate’s version by a two-thirds vote (120 yeas, 32 nays, and 32 not voting) and the 14th Amendment was passed by Congress.

On June 16, Congress sent the approved version of joint resolution H.R. Res. 127 to the Secretary of State William Seward for delivery to President Andrew Johnson. President Johnson opposed the 14th Amendment, but Article V assigns no role to the President in the Amendment process. Accordingly, President Andrew Johnson’s only duty was to send the proposed 14th Amendment to the states, which he instructed Seward to do on June 22, 1866.

Initially, none of the ex-Confederate states ratified the 14th Amendment in 1866, except Tennessee. Accordingly, Tennessee was quickly re-admitted to the Union – reclaiming full status as a state and having its representatives allowed once again to sit in Congress.
In response, the Northern-dominated Congress passed a series of punishing laws aimed at making sure the South came back into the Union on the terms it required – the Reconstruction Acts. It passed four of them (three in 1867 and one in 1868)

The essential provisions can be summed up as follows:

• The Reconstruction Acts of 1867 created five military districts in the seceded states (again, with the exception of Tennessee, which ratified the 14th Amendment and was thus re-admitted to the Union). The five districts were (1) Virginia; (2) North and South Carolina; (3) Georgia, Alabama, and Florida; (4) Mississippi and Arkansas; and (5) Texas and Louisiana. Around 200,000 troops were placed in the South to enforce military rule.
• Each district in the Union was now headed by a military official empowered to remove and subsequently anoint state leaders/officials. All states were required to employ a military leader from the North (Marshall Law).
• The Reconstruction Acts of 1867 required each state had to draft a new state constitution, which would have to be approved by Congress before that state could be re-admitted to the Union.
• The Reconstruction Acts of 1867 implemented regulations regarding voter registration; all freed individuals were allowed to vote along with white persons who took extended oaths.
• The Reconstruction Acts of 1867 required each state to ratify the 14th Amendment prior to readmission into the Union.
• State constitutional conventions were required to draft new governing documents that included laws on black male suffrage and the elimination of their black codes.
• The Reconstruction Acts of 1867 disabled confederate leaders and any individual who did not pledge their allegiance to the United States from voting. (Thirty-five percent to forty-five percent of potential white voters were either excluded from voting because of the Reconstruction Acts, or failed to register or were prevented from registering).

One thing all military commanders did – because they were told to do so by Congress – was to place former slaves in positions in government. These former slaves knew nothing about government or money. They were not trained for their jobs. But they were loyal to the Republican Party. And nearly all were puppets under the control of army officials.

[It should be noted that President Andrew Johnson, who had taken over as President of the United States after Lincoln was assassinated, vetoed the Reconstruction Acts, asserting that they were unconstitutional. But Johnson’s veto was overruled by Congress. Military rule in the South would last for 10 years, until 1877, when the Republican party agreed to return Southern states to home rule in exchange for their support of the Republican candidate for president, Rutherford B. Hayes. That was the end of reconstruction].

By early 1868, the former Confederate States began to draft and submit to Congress new state constitutions. By June 9, all had new “acceptable” constitutions and thus Secretary Seward announced that all had formed republican governments and would be entitled to representation in Congress (have its representation restored) once they ratified the 14th Amendment. On these terms, Florida ratified the amendment on June 9, North Carolina on July 2, Louisiana and South Carolina on July 9, and Alabama on July 16.
These Southern ratifications seemed to give Secretary of State William Seward the required twenty-eight states necessary for the 14th Amendment to become law.

Secretary Seward had twenty-nine ratifications on file, but prior to receiving the twenty-eighth, New Jersey and Ohio had rescinded their ratification. Nevertheless, on July 20, 1868, Secretary Seward issued a proclamation declaring the 14th Amendment ratified. Congress reacted quickly to Seward’s proclamation, and on July 21, 1868, declared all twenty-nine ratifications to be valid and that the 14th Amendment was “part of the Constitution of the United States, and it shall be duly promulgated as such by the Secretary of State.” On July 28, Seward, issued a second proclamation, declaring the 14th Amendment had “become valid to all intents and purposes as a part of the Constitution of the United States.”

As is explained in detail in the Appendix, there were serious irregularities in the ratification of the 14th Amendment, thereby making it most likely that it was never legally passed in Congress or ratified by the States. Nevertheless, on July 28, 1868, Secretary of State William Seward proclaimed that three-fourths of the states had ratified it.

The Radical Republicans were satisfied that they had secured civil rights for blacks, but were disappointed that the amendment did not include the right to vote. That would come with the 15th Amendment, which was ratified on February 3, 1870.

II. “AND SUBJECT TO THE JURISDICTION THEREOF….”

Again, the purpose of this article is to discuss birthright citizenship, which is addressed immediately in Section 1 of the 14th Amendment —

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. No State shall make or enforce any law which shall abridge the privileges or 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.”

Although the Constitution of 1787 mentioned citizens, it did not define citizenship. It was not until the 14th Amendment was added that a definition of citizenship entered the Constitution. “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.” Thus there are two components to American citizenship: birth or naturalization in the US and being subject to the jurisdiction of the US. Today, we somehow have come to believe that anyone born within the geographical limits of the US. is automatically subject to its jurisdiction; but this renders the jurisdiction clause utterly superfluous. If this had been the intention of the framers of the 14th Amendment, presumably they would have said simply that all persons born or naturalized in the U.S. are thereby citizens.

During debate over the amendment, Senator Jacob Howard attempted to assure skeptical colleagues that the language was not intended to make Indians citizens of the United States. Indians, Howard conceded, were born within the nation’s geographical limits, but he steadfastly maintained that they were not subject to its jurisdiction because they owed allegiance to their tribes and not to the Senator Lyman Trumbull, chairman of the Senate Judiciary Committee, supported this view, arguing that “subject to the jurisdiction thereof” meant “not owing allegiance to anybody else and being subject to the complete jurisdiction of the United States.”

Jurisdiction understood in terms of “allegiance,” Senator Howard explained, excludes not only Indians but “persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.” Thus, “subject to the jurisdiction” does not simply mean, as is commonly thought today, subject to American laws or courts. It means owing exclusive political allegiance to the United States.
Furthermore, there has never been an explicit holding by the Supreme Court that the children of illegal aliens are automatically accorded birthright citizenship. In the case of Elk v. Wilkins (1884), the Court held that children born to Native Indian parents could not be citizens under the 14th Amendment’s citizenship clause because at the time of the birth, the allegiance of the parents belonged to the tribal nation. In the case of United States v. Wong Kim Ark (1898) the Court ruled that a child born in the U.S. of legal aliens was entitled to “birthright citizenship” under the 14th Amendment. [A more in-depth analysis of Elk and Wong is provided in the Appendix].

In a third Supreme Court case, Plyler v. Doe (1982), the Court addressed the treatment of children of illegal aliens, in the context of public education. Texas had a statue allowing the state to withhold funds to public school districts for illegal children. The provision at issue was not the Citizenship Clause but the Equal Protection Clause, but supporters of birthright citizenship for illegals will point to a footnote that the liberal judges included in the opinion. It read, in part:

“As one early commentator noted, given the historical emphasis on geographic territoriality, bounded only, if at all, by principles of sovereignty and allegiance, no plausible distinction with respect to Fourteenth Amendment “jurisdiction” can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”

This footnote, however has little or no persuasive power. It provides no precedence power. It merely recited the views of a commentator and was irrelevant to the matter under decision.

Ideological liberals have recently invented a novel and wholly fabulous interpretation of this passage, maintaining that when Howard mentions that “foreigners, aliens” are not “subject to the jurisdiction” of the United States he means to include only “families of ambassadors or foreign ministers.” If so, this would be an extraordinarily loose way of speaking: Ambassadors and foreign ministers are foreigners and aliens and their designation as such would be superfluous. If we give full weight to the commas after “foreigners” and after “aliens,” this would indicate a series which might be read in this way: “foreigners, aliens, families of ambassadors, foreign ministers,” all separate classes of persons who are excluded from jurisdiction. Or it could be read in this way: “foreigners, aliens, [that is, those who belong to the] families of ambassadors or foreign ministers.” I suggest that the natural reading of the passage is the former, i.e., that the commas suggest a discrete listing of separate classes of persons excluded from jurisdiction. Of course, the debate was taken by shorthand reporters and not always checked by the speakers, so the issue cannot be settled simply on the basis of the placement of commas. In addition, Howard seemed to make a glaring omission — he failed to mention Indians. He was forced to clarify his omission when challenged by Senator James R. Doolittle of Wisconsin who queried whether the “Senator from Michigan does not intend by this amendment to include the Indians”; he thereupon proposed to add the language of the Civil Rights Act of 1866 “excluding Indians not taxed.” Howard vigorously opposed the amendment, remarking that “Indians born within the limits of the United States and who maintain their tribal relations, are not in the sense of this amendment, born subject to the jurisdiction of the United States. They are regarded, and always have been in our legislation and jurisprudence, as being quasi foreign nations.” In other words, the omission of Indians from the exceptions to the jurisdiction clause was intentional. Howard clearly regarded Indians as “foreigners, aliens.” This conclusion is supported by Senator Lyman Trumbull who, as we will discuss shortly, also opposed Doolittle’s amendment. This is clear evidence, against the claims of ideological liberals who have become the proponents of open borders and are intent to replace citizens with “universal persons,” that Howard meant that foreigners and aliens included only the families of ambassadors and foreign ministers. Based on the evidence we have proffered so far, this has been exposed as an utterly preposterous idea. But there is more to come. There is no evidence anywhere in the debates to support the assertions of ideological liberals. [Edward J. Erler, “Trump’s Critics Are Wrong About the 14th Amendment and Birthright Citizenship”]

Howard had said earlier in his statement that “[t]his amendment which I have offered is simply declaratory of what I regard as the law of the land already.” The “law of the land” to which Howard referred was undoubtedly the Civil Rights Act of 1866, passed over the veto of President Andrew Johnson by a two-thirds majority in both houses less than two months prior to the May 30 debate in the Senate. The Civil Rights Act provided the first definition of citizenship after the ratification of the 13th Amendment, specifying “[t]hat all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” Thus an overwhelming majority of Congress on the eve of the debate over the meaning of the citizenship clause of section 1 of the 14th Amendment were committed to the view that foreigners — and presumably aliens — were not subject to birthright citizenship. Most of those who voted in favor of the act were still serving in Congress when the 14th Amendment was under consideration. In fact, Senator Lyman Trumbull, the author of the Civil Rights Act and chairman of the powerful Senate Judiciary Committee, was an ardent supporter of Howard’s version of the citizenship clause. “The provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ‘subject to the complete jurisdiction thereof.’ . . . What do we mean by ‘subject to the jurisdiction of the United States?’ Not owing allegiance to anybody else.” Not owing allegiance to anybody else, subject to the complete jurisdiction of the United States, and not subject to a foreign power. During debate over the Civil Rights Act, Senator Trumbull remarked that purpose of its citizenship clause was “to make citizens of everybody born in the United States who owe allegiance to the United States.” Read in the light of the Civil Rights Act and the authoritative statements by Senator Trumbull in the May 30 debate, can there be any real dispute that “foreigners, aliens” in Senator Howard’s opening statement does not refer to “families of ambassadors or foreign ministers” but to “foreigners, aliens” as a separate class of persons? Thus, is it not fair — and accurate — to read Howard’s statement introducing the citizenship clause to the Senate in this way:

“This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens [or] who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.” [Erler, cont’d]

This use of the bracketed “[or]” is fully justified when this statement is read in the light of the Civil Rights Act, which explicitly excludes foreigners (and aliens) from birth-right citizenship, an exclusion that was authorized by an overwhelming majority of the same Congress that approved the citizenship clause of the 14th Amendment. The many statements in the debate by supporters of the citizenship clause support this conclusion. [Erler, cont’d]

III. BIRTHRIGHT CITIZENSHIP: SHOULD IT APPLY TO THE CHILDREN BORN TO ILLEGAL ALIENS?

Citizenship must be considered in the context of some absolutes, as articulated in the Constitution:

(1) A sovereign nation has the authority to control immigration and to determine and to ascertain who is entering the country, as well as to establish guidelines and laws as to WHO can enter the country. Article I, Section 8 articulates this as one of the core and primary functions of the general, or federal, government. The Immigration & Naturalization Act outlines the law related to the function of immigration and naturalization, and it also outlines where authority is delegated to the President.

(2) Government power is shared or divided, whichever way you choose to look at it, between the States and the federal government. The government was created to serve the States and to aid them in their ability to work together in the form of a Union; the government power delegated to it is clear and can be summed up in general terms: to regulate commerce, to regulate immigration and naturalization, to establish a uniform system of currency, to act as a common agent for the states on the international stage and with Indian tribes, and to establish a common army and navy to keep the states safe and secure and to make sure essential federal laws are enforced. The functions of the federal government were intended to affect the states, to assist them in their sovereign responsibilities; they were not intended to reach inside the states to regulate their people. It was to be the States themselves who would be responsibility to legislate for the benefit and service for their people. All government power not expressly delegated to the federal government by the Constitution is reserved to the States, or to the people. This is the division of power, the basis for our “federal” system, restated by the Tenth Amendment. (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”) Legally and historically speaking, certain functions have been reserved to the States, and these have been summed up by the term “state police powers.” A state’s police powers includes the right to legislate (regulate) “for the health, safety, welfare, and morality” of its people. Typical state functions include legislation related to education, voting, health, law enforcement, property and zoning/land use, marriage, professional certifications.
Keeping that explanation in mind, people live or reside in states, except for the District of Columbia, of course and other US territories. No one can be a United States citizen who is not first a citizen of a state and therefore a responsibility of such state. Because the federal government serves the interests of the States, if the States understand Section 1 of the 14th Amendment to require individuals to be “subject to the jurisdiction” of the United States” (ie, the special protections of citizenship offered by the US Constitution), then that is what the 14th Amendment MUST mean. If States do NOT want the magnet of automatic citizenship (and hence, chain migration) for those who come here illegally (as well as the burden on the state associated with it), then that is the lens through which the 14th Amendment must be viewed and interpreted.

(3) It is important to recognize and understand the significance of a constitution, and particularly of our Constitution. As Thomas Paine explained: “A constitution is not the act of a government, but of a people constituting a government; and government without a constitution is power without a right. All power exercised over a nation, must have some beginning. It must be either delegated, or assumed. There are not other sources. All delegated power is trust, and all assumed power is usurpation. Time does not alter the nature and quality of either.” (Rights of Man, 1791-1792) The key point is that the Constitution is the People’s document – the rightful and legal members of the society we call the United States of America. It embodies the People’s and the States’ intent and NOT government’s intent.

(4). Section 1 of the 14th Amendment reads: “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. No state shall make or enforce any law which shall abridge the privileges or 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.” Most people understand, and even the Supreme Court has agreed in prior opinions, that non-citizens are not entitled to the protections provided by our Constitution. (They are entitled to be have their inalienable rights respected, of course, but the rights of citizenship are only available to those who can rightfully and legally be citizens).

(5) The cases regarding the citizenship of those born on US soil (ie, “birthright citizenship”) have only involved those parents who were here in the country legally. The Supreme Court has never addressed the question of birthright citizenship to the child of someone who has intentionally entered the US illegally. Some advocates for birthright citizenship for those of illegal immigrants point to the 1898 case of United States v. Wong Kim Ark, but that case merely held that a child born on US soil to parents who were lawfully, permanent (legally, “domiciled”) residents was a citizen. The parents who gave birth had a legal reason for being in the United States; they had “permission.” Because the United States has laws governing the entrance of foreigners and aliens into our country, for the purposes of the Citizenship Clause and birthright citizenship, it should be assumed that birthright citizenship applies when the mother has arrived here legally. As Mark Levin would say: “A person can’t self-emigrate.” There are laws – immigration laws.

(6) When the 14th Amendment was introduced and ratified, the country didn’t have an illegal immigration problem

(7) In no sane, rational world can an element of the Rule of Law (here the “Citizenship Clause”) be taken to reward, and even encourage, the breaking of the needful and essential laws of the United States.

(8) In two cases, the US Supreme Court has decided that the Citizenship Clause’s term “subject to the jurisdiction thereof” (ie, the jurisdiction of the United States – ie, subject to the full extend of its laws) means subject to the English common law doctrine of “allegiance.” In the more crucial case, United States v. Wong Kim Ark, the “allegiance” rationale was central to the holding.

The best way to determine what “subject to the jurisdiction thereof” was intended to mean would be to uncover evidence that state legislatures ratifying the 14th Amendment understood “subject to the jurisdiction thereof” to exclude illegal aliens (“invaders”) and their children. It is the understanding of, or meaning to, the ratifiers, moreso than the intent of the drafters, that carries most weight in constitutional questions. Commentary from the Congressional debates is certainly helpful evidence of meaning, but relying on it entirely would be foolish. It’s only half the puzzle. Commentary from the debates in the state ratifying conventions carry far more weight because that evidenced the “meeting of the minds” – the understanding – by those who agree to be bound by the amendment. In some cases, the meaning as evidenced by the Congressional record is the same as the understanding of the states; yet, sometimes the states read the amendment differently or foresee how it can be enlarged or abused and seek to limit its application in their conventions. The question is whether illegal aliens are a group of people that the US is willing to concede are entitled to any benefits or protections under our Constitution and our laws (subject to our jurisdiction”). We know illegals go through great lengths to evade our jurisdiction. We know illegals are treated differently by our laws than ordinary legal citizens (they are allowed to continue breaking our laws, for one). We know sanctuary cities provide safe zones for illegal aliens to live without legal US status (no such “safe” zones exist for legal citizens to break laws).

(9) Why should the evaders of our laws be then able to claim the protections OF our law? Why should we interpret the 14th Amendment to reward those who intentionally break and evade our laws? It wouldn’t make sense. It would fly in the face of the very meaning and intent of “sovereignty” and of our “Rule of Law.”

(10) It is not a straightforward assumption that a child of illegal aliens, if born in the United States, is automatically, at the moment of birth, subject to the jurisdiction of the United States. The criminality of the mother, or the parents, is imputed to the newborn. “But for” analysis supports this conclusion. “But for” the criminality of the parents, the baby would not have been born in the United States. Should the newborn child be considered independent of the parents? Certainly not. In no situation is a newborn considered anything other than a responsibility of the parents. It has no free will, no thought, no sense of independence.

(11) The 14th Amendment was never legally or legitimately passed. Refer to the Appendix. [See David Lawrence, “There Is No 14th Amendment!”, Sept. 27, 1957; https://www.constitution.org/14ll/no14th.htm and Douglas H. Bryant, “Unorthodox and Paradox: Revisiting the Fourteenth Amendment,” Alabama Law Review, Vol. 53, 2:555. Referenced at: https://www.law.ua.edu/pubs/lrarticles/Volume%2053/Issue%202/Bryant.pdf. Bryant’s article is included at the end of this article, in the Appendix]

IV. CONCLUSION:

Birthright citizenship is currently a policy whereby the children of illegal aliens born within the geographical limits of the U.S. have been automatically entitled to American citizenship. Trump, correctly, says it is a great magnet for illegal immigration. Today it is the magnet for illegal Hispanics. Tomorrow it may be the magnet for Islamic radicals.
Democrats, open-border activist groups, and others on the left, as well as other critics of Trump’s believe that this policy is an explicit command of the Constitution, embraced by the 14th Amendment and consistent with the British common-law system (see Appendix). As Edward Erler writes: “This is simply not true.”

 

- 2018 (Carolina Clinic) (2)

References:
Mark Levin, “Birthright Citizenship,” Mark Levin Show (October 30, 2018) – https://www.youtube.com/watch?v=vefyjFcbiNU

John Eastman, “Birthright Citizenship is Not Actually in the Constitution,” NY Times, December 22, 2015. Referenced at: https://www.nytimes.com/roomfordebate/2015/08/24/should-birthright-citizenship-be-abolished/birthright-citizenship-is-not-actually-in-the-constitution

David Lawrence, “There Is No 14th Amendment!”, U.S. News & World Report, September 27, 1957; posted in The Constitution Society. Referenced at: https://www.constitution.org/14ll/no14th.htm

Epps, Garrett (2010) “The Citizenship Clause: A “Legislative History”, American University Law Review: Vol. 60: Iss. 2, Article 2. Referenced at: http://digitalcommons.wcl.american.edu/aulr/vol60/iss2/2 OR:
https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1607&context=aulr

Rob Nateson, “An Objective Guide to Birthright Citizenship,” Tenth Amendment Center, August 31, 2015. Referenced at: https://tenthamendmentcenter.com/2015/08/31/an-objective-guide-to-birthright-citizenship/

Maggs, Gregory E., “A Critical Guide to Using the Legislative History Of The Fourteenth Amendment to Determine The Amendment’s Original Meaning (2017). A Critical Guide to Using the Legislative History of the Fourteenth Amendment to Determine the Amendment’s Original Meaning,” 49 Conn. L. Rev. 1069 (2017); GWU Law School Public Law Research Paper No. 2017-77; GWU Legal Studies Research Paper No. 2017-77. Referenced at: https://ssrn.com/abstract=3068014

Dred Scott v. Sandford, 60 U.S. 393 (1857), Cornell Law Library – https://www.law.cornell.edu/supremecourt/text/60/393
Dred Scott, Wikipedia – https://en.wikipedia.org/wiki/Dred_Scott

Douglas H. Bryant, “Unorthodox and Paradox: Revisiting the Fourteenth Amendment,” Alabama Law Review, Vol. 53, 2:555. Referenced at: https://www.law.ua.edu/pubs/lrarticles/Volume%2053/Issue%202/Bryant.pdf

Congressional Globe, 39th Cong., 1st Sess. (1866), 2768-2769 (Sen. Wade).

Gregory E. Maggs, “A Critical Guide to Using the Legislative History Of The Fourteenth Amendment to Determine The Amendment’s Original Meaning,” 49 Conn. L. Rev. 1069 (2017). Referenced at: https://scholarship.law.gwu.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=2572&context=faculty_publications

Edward J. Erler, “Trump’s Critics Are Wrong About the 14th Amendment and Birthright Citizenship,” National Review, August 19, 2015 (but re-printed in 2018). Referenced at: https://www.nationalreview.com/2015/08/birthright-citizenship-not-mandated-by-constitution/

 

APPENDIX:

I. US CONSTITUTION, Article I, Section 8:

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
To establish Post Offices and Post Roads;
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

II. 14th AMENDMENT, Section 1

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. No State shall make or enforce any law which shall abridge the privileges or 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.

III. DRED SCOTT case – Facts of the Case and Judicial History

Dred Scott was born into slavery circa 1799 in Southampton County, Virginia. It is not clear whether Dred was his given name or a shortened form of Etheldred. In 1818, Peter Blow and his family took their six slaves to Alabama, where the family ran an unsuccessful farm in a location near Huntsville that is now occupied by Oakwood University. The Blows gave up farming in 1830 and moved to St. Louis, Missouri, where they ran a boarding house. Dred Scott was sold to Dr. John Emerson, a surgeon serving in the United States Army. After Scott learned he would be sold to Dr. Emerson and relocated to Rock Island, Illinois, he attempted to run away. His decision to do so was spurred by a distaste he had previously developed for Dr. Emerson. Scott was temporarily successful in his escape as he, much like many other runaway slaves during this time period, “never tried to distance his pursuers, but dodged around among his fellow slaves as long as possible.”

Eventually, he was captured in the “Lucas Swamps” of Missouri and taken back. Blow died in 1832, and historians debate whether Scott was sold to Emerson before or after Blow’s death. Some believe that Scott was sold in 1831, while others point to a number of slaves in Blow’s estate who were sold to Emerson after Blow’s death, including one with a name given as Sam, who may be the same person as Scott.

As an army officer, Dr. Emerson moved frequently, taking Scott with him to each new army posting. In 1836, Emerson and Scott went to Fort Armstrong, in the free state of Illinois. In 1837, Emerson took Scott to Fort Snelling, in what is now the state of Minnesota and was then in the free territory of Wisconsin. There, Scott met and married Harriet Robinson, a slave owned by Lawrence Taliaferro. The marriage was formalized in a civil ceremony presided over by Taliaferro, who was a justice of the peace. Since slave marriages had no legal sanction, supporters of Scott would later point to this ceremony as evidence that Scott was being treated as a free man. Nevertheless, Taliaferro transferred Harriet to Emerson, who treated the Scotts as his slaves.

Emerson moved to Jefferson Barracks in 1837, leaving the Scott family behind and leasing them out to other officers. In February 1838, Emerson met and married Eliza Irene Sanford at Fort Jesup in Louisiana, whereupon he sent for the Scotts to join him. While on a steamboat on the Mississippi River, between the free state of Illinois and the Iowa district of Wisconsin Territory, Harriet Scott gave birth to their first child, whom they named Eliza after their mistress. They later had a daughter, Lizzie.

The Emersons and Scotts returned to Missouri in 1840. In 1842, Emerson left the Army. After he died in the Iowa Territory in 1843, his widow Irene inherited his estate, including the Scotts. For three years after Emerson’s death, she continued to lease out the Scotts as hired slaves. In 1846, Scott attempted to purchase his and his family’s freedom, offering $300, about $8,000 in current value. However, Irene Emerson refused, prompting Scott to resort to legal recourse.

The Dred Scott case of the U.S. Supreme Court, which denied Scott his freedom by ruling that negro-slave descendants were not U.S. citizens, was the end of years of legal cases during 1846-1857, in lower federal district court and Missouri courts which had granted Dred Scott freedom for about 2 years, until overturned upon appeal.

Back in 1846, having failed to purchase his freedom, Scott filed legal suit in St. Louis Circuit Court. Scott stood on solid legal ground, because Missouri precedent dating back to 1824 had held that slaves freed through prolonged residence in a free state would remain free when taken back to Missouri. The doctrine was known as “Once free, always free”. Scott and his wife had resided for two years in free states and free territories, and his eldest daughter had been born on the Mississippi River, between a free state and a free territory.

Dred Scott was listed as the only plaintiff in the case, but his wife, Harriet, played a critical role, pushing him to pursue freedom on behalf of their family. She was a frequent churchgoer, and in St. Louis, her church pastor (a well-known abolitionist) connected the Scotts to their first lawyer. The Scott children were around the age of ten at the time the case was originally filed, which was the age when younger slaves became more valuable assets for slave owners to sell. To avoid the family from breaking up, Harriet urged Dred to take action.

The Scott v. Emerson case was tried in 1847 in the federal-state courthouse in St. Louis. Dred Scott’s lawyer was originally Francis B. Murdoch and later Charles D. Drake. Because more than a year elapsed from the time of the initial petition filing until the trial, Drake moved away from St. Louis during that time. Samuel M. Bay tried the case in court. The verdict went against Scott, as testimony that established his ownership by Mrs. Emerson was ruled to be hearsay. However, the judge called for a retrial, which was finally held in January 1850. This time, direct evidence was introduced that Emerson owned Scott, and the jury ruled in favor of Scott’s freedom.

Irene Emerson appealed the verdict. In 1852, the Missouri Supreme Court struck down the lower court ruling, arguing that growing antislavery sentiment in the free states made it no longer necessary for Missouri to defer to the laws of free states. In doing so, the court had overturned 28 years of precedent in Missouri. Justice Hamilton R. Gamble, who was later appointed governor of Missouri, sharply disagreed with the majority decision and wrote a dissenting opinion.

In 1853, Scott again sued; this time under federal law. Irene Emerson had moved to Massachusetts, and Scott had been transferred to Irene Emerson’s brother, John F. A. Sanford. Because Sanford was a citizen of New York, while Scott would be a citizen of Missouri if he were free, the Federal courts had diversity jurisdiction over the case. After losing again in federal district court, they appealed to the United States Supreme Court in Dred Scott v. Sandford. (The name is spelled “Sandford” in the court decision due to a clerical error). And well, the rest is history. The Supreme Court handed down its opinion on March 6, 1857.

IV. THE BRITISH COMMON LAW

The framers of the Constitution were well-versed in the British common law, having learned its essential principles from William Blackstone’s Commentaries on the Laws of England. As such, they knew that the very concept of citizenship was unknown in British common law. Blackstone speaks only of “birthright subjectship” or “birthright allegiance,” never using the terms “citizen” or “citizenship.” The idea of birthright subjectship, as Blackstone admitted, was derived from feudal law. It is the relation of master and servant: All who are born within the protection of the king owed perpetual allegiance as a “debt of gratitude.” According to Blackstone, this debt is “intrinsic” and “cannot be forfeited, cancelled, or altered.” Birthright subjectship under common law is the doctrine of perpetual allegiance.

America’s Founders rejected this doctrine. The Declaration of Independence, after all, solemnly proclaims that “the good People of these Colonies . . . are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved.” So, the common law — the feudal doctrine of perpetual allegiance — could not possibly serve as the ground of American citizenship. Indeed, the idea is too preposterous to entertain.

Consider as well that, in 1868, Congress passed the Expatriation Act. This permitted American citizens to renounce their allegiance and alienate their citizenship. This piece of legislation was supported by Senator Howard and other leading architects of the 14th Amendment, and characterized the right of expatriation as “a natural and inherent right of all people, indispensable to the enjoyment of the right of life, liberty and the pursuit of happiness.” Like the idea of citizenship, this right of expatriation is wholly incompatible with the common-law understanding of perpetual allegiance and subjectship. One member of the House expressed the general sense of Congress when he proclaimed: “The old feudal doctrine stated by Blackstone and adopted as part of the common law of England . . . is not only at war with the theory of our institutions, but is equally at war with every principle of justice and of sound public policy.” The notion of birthright citizenship was characterized by another member as an “indefensible doctrine of indefeasible allegiance,” a feudal doctrine wholly at odds with republican government.

Reference: Edward J. Erler, “Trump’s Critics Are Wrong About the 14th Amendment and Birthright Citizenship,” National Review, August 19, 2015 (but re-printed in 2018). Referenced at: https://www.nationalreview.com/2015/08/birthright-citizenship-not-mandated-by-constitution/

V. SUPREME COURT CASES (addressing the 1 Amendment’s “Citizenship Clause” – particularly the “subject to the jurisdiction thereof” clause)

The Supreme Court has addressed the Fourteenth Amendment’s “subject to the jurisdiction” language in two important cases. None of these cases definitively resolve our question. But they offer hints.

Elk v. Wilkins (1884) was decided before Congress extended citizenship to Indians who remained tribal members. In Elk, the Court ruled that an Indian born into a tribe was not a citizen unless naturalized under a statute or treaty. The Elk case is only weak evidence of the rule applied to foreigners. This is because the Constitution’s text and history suggest that the citizenship standards for tribal Indians and foreigners are different.

However, the Elk case does tell us that:

* “Subject to the jurisdiction” in the 14th Amendment has a specialized meaning, different from the common meaning of “within a given territory and therefore subject to a court’s order,” as, for example, appears in the 13th Amendment.
* This meaning is connected to the concept of “allegiance,” a legal term traditionally used to determine whether a person is a natural born citizen.
* For deciding whether a child born in the U.S. receives citizenship under the 14th Amendment, the relevant issue is the parents’ allegiance when the child was born. The parents’ or child’s later decisions are irrelevant, unless the United States accepts them by statute or naturalization ceremony.

Two justices dissented from the holding in Elk. They accepted the connection between “jurisdiction” and allegiance. But they argued that an Indian becomes a citizen if he changes his allegiance by abandoning his tribe and becoming a member of his state’s political community. Their version of allegiance thus depended partly on a person’s intent.

United States v. Wong Kim Ark (1898) ruled that the U.S.-born child of two legally-resident foreigners was a natural born citizen. Horace Gray, the same justice who wrote for the Court in Elk, also wrote for the Court in Wong. The result was different in Wong primarily because the Constitution implicitly made it easier for foreigners to get automatic citizenship than tribal Indians. But the underlying approach of Elk and Wong was similar in that citizenship by birth depended more on geography rather than subjective intent.

The most important lesson of Wong was this: The Constitution’s version of “allegiance” was the version we inherited from Great Britain in 1776—not versions prevailing in other countries or under international law.

As modified by Parliamentary statute, the British version of allegiance was as follows:

* Birth in a country (or on a country’s ships) normally creates a “natural allegiance” to that country.
* A child born abroad is in allegiance to a country, and is therefore natural born, only if his father is a citizen of that country and not engaged in treasonous or felonious activities. In Anglo-American law, a person’s status usually followed that of the mother, but for allegiance the rule was partus sequitur patrem.
* Foreign residents and visitors generally are in “local allegiance” to the host country, since they submit themselves to its laws and protection. Their children born in the host country are natural born citizens of that country.
* To this last rule, there are two exceptions: When the father is a foreign diplomat or a foreign invader, he has no allegiance to the host country, and his offspring are not citizens.

Two justices dissented in Wong. They argued that the British version of allegiance should not apply in America. They contended that parents in merely local allegiance should not bestow citizenship. For example, they stated that if a foreign power occupied U.S. territory, the natural allegiance of parents should pass U.S. citizenship to their children, even if those parents had a local duty to obey the conqueror.

In my view, the Wong majority was right to hold that the British version of allegiance applies to the original Constitution. But because of developments between 1789 and 1868, the dissent made a good argument that a newer, American version applied to the 14th Amendment.

Reference: Rob Nateson, “An Objective Guide to Birthright Citizenship,” Tenth Amendment Center, August 31, 2015. Referenced at: https://tenthamendmentcenter.com/2015/08/31/an-objective-guide-to-birthright-citizenship/

VI. The Validity of the 13th and 14th Amendments (from Douglas H. Bryant’s law review article “Unorthodox and Paradox: Revisiting the Fourteenth Amendment”)

When Southern senators and representatives began arriving in Washington to take their place in the Thirty-Ninth Congress, which convened on December 4, 1865, they were confronted with two opposing legal signals. The Secretary of State’s proclamation that the13th Amendment had been ratified seemed to suggest the recognition of the validity of the Southern government. Congress, however, had no intention of making such recognition. When the 39th Congress convened, Republicans refused to seat any Southern representative, and would later declare, “no legal State governments . . . exist in the rebel state.” The Southern states were refused representation in Congress throughout the entire period in which the 14th Amendment was proposed and ratified.

There can be little doubt that, were the Southern delegations admitted into the Congress, they would not have supported the 14th Amendment. Of course, this is the exact reason the Republicans excluded them. The Southern delegations, from the Republicans’ viewpoint, seemed to be the same group of rebels who had started this crisis in the first place. Southern voters elected “no fewer than nine Confederate congressmen, seven Confederate state officials, four generals, four colonels, and Confederate Vice President Alexander Stephens.” Furthermore, the abolition of slavery would do away with the three-fifths method of determining population, which would actually give the South more power in Congress than it had before the Civil War.

Regardless of this, however, if the Southern states were still in the Union, and with legitimate governments, which the ratification of the 13th Amendment suggests, then they were entitled to sixty-one representatives and twenty-two senators. The final vote on the 14th Amendment in the House was 120-32, with 32 abstentions. The tally was far greater than the necessary two-thirds. If the excluded Southern representatives’ votes were added to the negative column, however, the two-thirds would not have been achieved. Similarly, if the twenty-two Southern senators’ votes had been added negatively to the Senate tally of 33-11, with 5 abstentions, then the vote would have ended in a tie.

It is here, then; where the first problem with the proposal of the 14th Amendment arises. If the Southern governments were legitimate enough to ratify the 13th Amendment, how is it they could be denied representation in Congress? The Constitution seems to give the Republican Congress an out. It provides in Article I, Section 5 that: “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business.” Thus the Constitution contemplates a legitimate congress that excludes some of its members, and allows such an exclusionary power on a majority vote.

But there is still a problem in respect to how Congress exercised this exclusionary power. The Qualification Clause gives Congress the power to serve as a “Judge” of its members’ qualifications. In this case, however, Congress made no inquiry into the qualifications of any particular Southern senators or representatives. Instead of rejecting particular men, Congress excluded all the Southern delegates, regard- less of their qualifications.

However, even a loose reading of the Qualification Clause is limited by other Constitutional provisions. Article I states that “each State shall have at Least one Representative” and Article V asserts that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” It appears, then, that the Constitution does not allow the Qualification Clause to serve as a textual warrant to defeat a state’s claim of representation. Congress would have to find some other way to deny Southern representation and still be a Constitutional “Congress” for the purpose of Article V.

The Republicans did have another justification for excluding the South from Congress. Article IV, Section 4, states that “the United States shall guarantee to every State in this Union a Republican Form of Government.” The Southern constitutions of 1865 looked very similar to their antebellum constitutions, with the exception that the 1865 documents had provisions outlawing slavery. The South’s antebellum constitutions, which protected slavery, had never been found to be un- republican and, in fact, Congress had on several occasions rejected abolitionist arguments that the Guarantee Clause barred the admission of new slave states. It seems very odd, then, to promote the idea that the Southern governments had rendered themselves unrepublican by freeing the slaves.

This argument supports Secretary of State Seward’s proclamation that recognized the South as having legitimate state governments still in the Union with the ability to ratify or reject proposed amendments. But, at the same time, there was nothing to keep the Republicans from advancing a new and revolutionary interpretation of the Guarantee Clause. There had never been a case of a state swapping a republican form of government for an unrepublican version, and thus there had never been any prior reason for Congress to question the validity of a government under the Guarantee From a modern point of view, at least, there seems to be quite a good argument for declaring Southern governments “unrepublican.”

No Southern government had granted blacks the right to vote, and some radicals in Congress argued that “republican government required not merely that blacks be free but that they be enfranchised.” This argument was hard for many Republicans to accept. For one reason, only six Northern states had granted blacks the right to vote by 1865, and during the period where Southern states were excluded, seven Northern states defeated proposals for black suffrage in popular referenda. The best they could do was to point out that in the South one- half to one-third of the eligible male voters were disenfranchised, while in the North, only a minuscule portion of male voters were excluded.

Further, if black suffrage was required, did a republican government also require women’s suffrage? All this lead many Republicans to become uneasy over the possibility that the federal government might soon have some permanent role in structuring state governments. Therefore, in preparing the document justifying Congress’s power to exclude the Southern states and still propose the 14th Amendment, the Congress, while still using the Guarantee Clause as its legal basis, looked not at the substance of the Southern constitutions, but on the presidential process of setting up the state governments.

In determining whether the Guarantee Clause may properly serve as a basis for constitutionally excluding Southern representation, it must be noted that, with two exceptions, everything in the Constitution, including the Guarantee Clause, may be changed or eliminated through amendment. The first exception expired in 1808. The clause in Article V, however, which states that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate,” may not be altered and is forever a part of the Constitution. If this clause was so important to the framers of the Constitution that they declared it unamendable, can it really be trumped by the Guarantee Clause?

Even if one agrees with the reasonable argument that the South’s governments were so unrepublican that the Guarantee Clause could allow Congress to exclude Southern representation and still propose the 14th Amendment in accordance with Article V, there still remains one unavoidable problem. For while that argument potentially saves the proposition that the 14th Amendment was constitutionally proposed, it necessarily admits that the 13th Amendment was never ratified. How could an unrepublican and thus unrecognized government’s vote count towards the ratification of the 13th Amendment?

One other matter clouds the proposal of the 14th Amendment. Even with the Southern delegations excluded, an initial poll of support for the Amendment in the Senate showed that the Senate was still one vote shy of the required two-thirds. One outspoken opponent of the Amendment was John. P. Stockton of New Jersey. Stockton had taken the oath of office and was formally seated on December 5, 1865, when the 39th Congress convened. While it only takes a majority vote to refuse to seat a congressman, the Constitution requires a two-thirds vote to expel a member who has already been seated. A motion was passed by only a bare majority in the Senate to expel Stockton. Thus, Stockton was unconstitutionally expelled. Only through this bit of chicanery did the 14th Amendment gain its requisite two-thirds majority in the Senate.

While the proposal of the Fourteenth Amendment seems trouble- some, the ratification process is even more perplexing and irregular. Once the Amendment had been “proposed” in Congress it was sent to all existing state governments, North and South. Here lies an interesting inconsistency: If there were no legitimate republican governments in the South, why did Congress send these illegitimate governments the proposed 14th Amendment? It seems the very fact that Congress sent the 14th Amendment to the South for ratification serves as a tacit endorsement that the Southern states had legitimate governments, or at least that these states were “still full-fledged members of the Union.”

Yet these very governments had been denied representation in Congress, and, as we shall see, would be abolished and the South divided into military districts after their refusal to ratify. Against this dubious background, some states began to ratify the Amendment. Twenty-eight states were needed to ratify, and rejection by ten states would prevent ratification. The first wave of states to ratify included Connecticut, New Hampshire, Tennessee, New Jersey, and Oregon. The ratifications of Tennessee and Oregon, however, are troublesome. In Tennessee, opponents of the Amendment absented themselves from the House in order to prevent a quorum. This did not stop the supporters of the Amendment, who forcibly seized two absent members and held them in a committee room. The House ignored a court order to release the two and overruled the Speaker, who ruled there was no quorum present. Thus, the Tennessee House voted for ratification amid significant controversy.

Ratification in Oregon was also irregular. The Amendment supporters had a three vote majority in the House, but two of their seats were disputed. The Amendment was quickly put to a vote and ratified by three votes. The disputed seats were later awarded to Democrats on the grounds that the Republican supporters of the Amendment were illegally elected. Therefore, Oregon would later rescind, by one vote, its ratification of the 14th Amendment.

Regardless of these controversies, by February 1, 1867, only seventeen states had ratified the 14th Amendment and eleven had rejected it, one more than the ten required to prevent ratification. The 14th Amendment appeared defeated. Congress would have to formulate a new strategy to get the Amendment ratified. This new strategy would see Congress exercise power well beyond that contemplated by Article V, and the ratification of the 14th Amendment began a course of action that cannot be squared with the text of the Constitution.

Enter – The Reconstruction Acts.

Senator Doolittle of Wisconsin, in a statement before Congress, demonstrated quite clearly the new strategy Congress would pursue to ensure the ratification of the 14th Amendment: “The people of the South have rejected the constitutional amendment, and therefore we will march upon them and force them to adopt it at the point of bayonet, and establish military power over them until they do adopt it.”

This statement exemplified how many moderate Republicans were exasperated by the South’s refusal to accept the 14th Amendment. This refusal, coupled with rising violence against blacks in the South and President Johnson’s botched plan to promote Southern re-admission, resulted in a resounding victory for Republicans in the 1866 Congressional election. The Republicans viewed this one-sided victory as a mandate in favor of the 14th Amendment, and would not allow the initial rejection by the South to curb their efforts to seek its ratification.”

Indeed, on March 2, 1867, Congress passed the first Reconstruction Act over President Johnson’s veto. The Act stated that “no legal State governments . . . exist in the rebel States,” and divided the South, with the exception of Tennessee, into military districts. The Act served to enfranchise black males and to disenfranchise large numbers of white voters. Moreover, the Act required these voters in each state to form new constitutions, to be approved by Congress, and to ratify the 14th Amendment. Even then, however, before the “State shall be declared entitled to representation in Congress,” the 14th Amendment must have “become a part of the Constitution of the United States.” The Act further proclaimed that “until the people of said rebel States shall be by law admitted to representation in the Congress of the United States, any civil governments which may exist therein shall be deemed provisional only, and in all respects subject to the paramount authority of the United States at any time to abolish, modify, control, or supersede the same.”

Yale University scholar, Bruce Ackerman, noted that, “Up until now, it was possible to drape a legal fig leaf over each Congressional action. But at this point, we are in the presence of naked violations of Article Five.”‘ University of Alabama history professor, Forrest McDonald, has stated that, “the act flew in the face of the Constitution in a large variety of ways.” Thus, as these commentators note, there is simply no way to fit the Reconstruction Acts within the bounds of the Constitution, yet the 14th Amendment owes its existence in the Constitution to this troublesome legislation.

Additionally, the Reconstruction Act seemed to run afoul of a recent decision (1866) of the Supreme Court. In Ex parte Milligan,” the Court held that military trials of civilians in times of peace and outside of war zones were un-constitutional, and stated that “martial rule can never exist where the courts are open.” Since the Civil War had been over for almost two years prior to the passage of the Reconstruction Acts and because Southern governments and courts had been operating for some time, the Reconstruction Act seemed to run counter to the Court’s ruling in Milligan. Further, the Court spoke of martial law in strong terms:

“If the country is subdivided into military departments for mere convenience . . . republican government is a failure, and there is an end of liberty regulated by law, martial law, established on such a basis, destroys every guarantee of the Constitution, and effectually renders the ‘military independent of and superior to the civil power.”

The Republicans in Congress denounced the decision as a “piece of judicial impertinence which we are not bound to respect.” Others said that the War was not over until Congress said so, and in the meantime the South was a war zone in which martial law could be imposed. At any rate, Congress, as we shall further see, had no intention of letting the Supreme Court get in its way. The Reconstruction Act also deprived most white voters in the South of their political rights, without due process of law, on a whole-sale basis. President Johnson noted this in his lengthy veto message:

“Here is a bill of attainder against 9,000,000 people at once. It is based upon an accusation so vague as to be scarcely intelligible and found to be true upon no credible evidence. Not one of the 9,000,000 was heard in his own defense. The representatives of the doomed parties were excluded from all participation in the trial. The conviction is to be followed by the most ignominious punishment ever inflicted on large masses of men. It disfranchises them by hundreds of thousands and degrades them all, even those who are admitted to be guiltless, from the rank of freemen to the condition of slaves.”

Congress quickly brushed aside President Johnson’s stinging veto message.

More importantly, in holding that no legitimate republican state governments existed in the South, with the exception of Tennessee, Congress had trapped itself in an interesting inconsistency. These same governments had been called upon to ratify the 13th Amendment. Five Southern states had ratified the 13th Amendment and their votes had been counted towards the required two-thirds majority. How could these governments have been legitimate enough to ratify the 13th Amendment, but not legitimate when they rejected the 14th? Once again, then, we are faced with the “13th -14th Amendment paradox,”‘ which plagues the 14th Amendment from proposal to ratification. For, if Congress was right, and no legitimate state governments actually existed in the South, then Secretary of State Seward7s proclamation that the 13th Amendment was ratified is also illegitimate. Therefore the 13th Amendment has not really been ratified, and slavery has not constitutionally been abolished. But if Congress was wrong, and the Southern governments were legitimate, then the 14th Amendment is dead at this point. Therefore the Reconstruction Act is unconstitutional because the South’s legitimate governments had been denied representation in Congress during the Amendment’s proposal and had rejected the proposed amendment once submitted to them.

Placing aside this “13th-14th Amendment Paradox” for the moment, if possible, there are further problems and inconsistencies on the face of the Reconstruction Act. The coercive nature of the Act itself is well beyond anything contemplated by Article V. Article V gives Congress the power to propose amendments and allows them to determine whether ratification will be by state legislatures or state conventions. Through the Reconstruction Act, however, Congress is attempting to exert a power to override a veto by the states of a proposed amendment. The Southern governments must have been viewed as legitimate because they were allowed to ratify the 13th Amendment and were initially sent the 14th Amendment. But now, through the Reconstruction Act, Congress is saying that their refusal to accept the Amendment has deprived them of all political power in the councils of the nation. Further, Congress is also telling the South that if they ever want that power back, the 14th Amendment must become part of the Constitution, and until it does, the South will be governed by the Union army. This is entirely inconsistent with the limited power granted to Congress in Article V. Surely, the founding fathers never contemplated that an amendment to the Constitution could be lawfully compelled “at the point of the bayonet,” or that a state could be placed under the duress of continued and compelling military force to achieve the ratification of a desired amendment.

Even placing aside the coercive nature of the Reconstruction Act, there is a further unavoidable problem with the Act’s inconsistent internal logic. The Act stated that no legal republican state governments existed in the South. According to the Act, in order for Congress to legally recognize Southern governments, the 14th Amendment must have been ratified by the Southern states, and must have become part of the Constitution. The key inconsistency is that the Amendment must have been ratified by the provisional government of a Southern state before that government was legally recognized. Yet, what good is ratification by a government that is not legally recognized or entitled to representation in Congress? And if ratification by a congressionally unrecognized state government is allowed, why can’t an unrecognized state government reject an amendment?

With this problem duly noted, we may now further question the ratification of the 14th Amendment by Tennessee. Tennessee had initially ratified the 14th Amendment when other Southern governments had rejected it. Upon ratification of the 14th Amendment by Tennessee, Congress, on July 24, 1866, declared Tennessee restored to the Union. But Tennessee’s government had been set up under the direction of the Chief Executive, as had all the other Southern governments. Tennessee’s government was no different from the other Southern governments, with the exception that it had enough votes to ratify the 14th Amendment. So, if Tennessee’s government was legitimate enough to accept the 14th Amendment, why were the other Southern governments illegitimate when they refused? But as Congress’s proclamation points out, Tennessee was declared restored to the Union because it had ratified the 14th Amendment. Again, this raises the question, what good is a ratification from a state whose government is not legally recognized?
This, however, brings us back to a now familiar problem. If the Southern governments were legitimate enough to ratify the 13th Amendment, and Tennessee’s government was legitimate enough to ratify the 14th, then the Reconstruction Acts cannot be constitutional. For Congress had no more power in 1867 to abolish a valid state government, than it would today to put New England under military rule for refusing to ratify a proposed anti-abortion amendment.

Both North and South realized the Reconstruction Acts stood on unstable constitutional grounds, and that the Supreme Court would likely have the final say. In fact, after the Milligan decision, Congress had introduced a flurry of bills and constitutional amendments seeking to limit the power of the Supreme Court. The House passed a bill which would have required a two-thirds Court majority to overturn legislation deemed unconstitutional, but the bill did not make it out of the Senate. Some congressional Republicans even sought to have the Supreme Court abolished. These Republican attacks on the Supreme Court may have convinced some justices “that discretion was the better part of valor,”‘ because the Court would dismiss two suits by state officials in the South to enjoin the enforcement of the Reconstruction Acts.

In Mississippi v. Johnson (1866), the Supreme Court refused to issue an injunction against enforcement of the Reconstruction Acts by the President. The Court noted that if it did grant the injunction against the President on the grounds of unconstitutionality, the President might very well be impeached by the House for complying with the Court order and refusing to enforce the Act.la The Court cited this “collision . . . between the executive and legislative departments” in refusing to grant the injunction, and therefore dodged the question of the Reconstruction Acts’ constitutionality.

In Georgia v. Stanton (1867), the Supreme Court dismissed an action by the State of Georgia to restrain the Secretary of War and other executive officials from enforcing the Reconstruction The Court noted that the Acts’ execution would “annul, and totally abolish the existing State government of Georgia, and establish another and different one in its place; in other words, would overthrow and destroy the corporate existence of the State.” However, the Court held that this was a political question and was not justiciable. Again the Supreme Court had dodged the issue of the constitutionality of the Reconstruction Acts. The Court did hint, however, that if an action was brought relating to the rights of “persons or property,” it would hear the matter.

The Supreme Court’s language in Stanton left the door open for one more challenge to the Constitutionality of the Reconstruction Acts in Ex parte McCardle. McCardle, the editor of the Vicksburg Times, was arrested by military authorities in Mississippi for publishing an editorial denouncing the constitutionality of the Reconstruction Acts. He was charged with impeding reconstruction; inciting insurrection, disorder, and violence; libel; and disturbance of the peace, and was to be tried before a military court. McCardle filed for a writ of habeas corpus on the ground that the Reconstruction Act was unconstitutional. The district court refused to grant this petition for a writ of habeas corpus and McCardle appealed to the Supreme Court. The Supreme Court agreed to hear the case and denied the government’s motion to dismiss for lack of jurisdiction.

After the Court denied the government’s motion to dismiss, word soon reached congressional leaders that the Supreme Court would be forced to declare the Reconstruction Acts unconstitutional. The Congressional response was quick. Republicans passed a bill that repealed the Habeas Corpus Act of 1867, the act under which McCardle had appealed, thereby removing the Supreme Court’s jurisdiction in the case. Congress noted that the purpose of this bill was to prevent the Supreme Court from passing on the validity of the Reconstruction Acts. The case had already been argued about two weeks before Congress passed its bill striping the Supreme Court of its jurisdiction, giving the Court time to issue a decision. The Court, however, backed down from congressional authority, fearing that if they ruled on the Reconstruction Acts, the Republicans in Congress might retaliate by inflicting even more damage upon the Court’s institutional independence.

Despite a strong dissent by Justice Grier, the Court decided to wait for the bill stripping its jurisdiction to become law. The Court dismissed McCardle’s case for want of jurisdiction and refused to find the jurisdiction stripping legislation unconstitutional. The Court had again, though just barely and for the last time, dodged the question of the Reconstruction Act’s constitutionality.

While the constitutionality of the Reconstruction Acts was being challenged in the Supreme Court, military officials, and twenty thousand federal troops, had begun registering voters in the South in order for new Southern governments to be organized. After the registration of voters was completed in September 1867, black voters made up a majority of voters in five of the ten unreconstructed states. Thirty-five percent to forty-five percent of potential white voters were either excluded from voting because of the Reconstruction Acts, or failed to register. Southerners still made some attempts to resist the forced creation of new governments. In Alabama, for example, most voters stayed away from the polls to prevent the new constitution from being approved by the required majority of registered voters. This tactic was tried in other Southern states as well, but Congress responded by repealing the “majority-of-the-voters” requirement, and allowed for a majority of the votes cast to enable the new constitutions. Thus, all the unreconstructed states “approved” new constitutions, and the new governments began ratifying the 14th Amendment.

Arkansas was the first of the unreconstructed Southern states to act. For the state’s new constitution to be legal, it required congressional approval, but it’s new legislature informally convened and approved the 14th Amendment on April 6, 1868. The Congress voted to admit Arkansas to representation in Congress on June 22, 1868. It should be pointed out, then, that Arkansas ratified the 14th Amendment, even though it still had “no legal state governments” until June.

Florida was the next of the unreconstructed states to act. Florida, in May of 1868, had approved its new constitution that had been drafted by a convention presided over by United States Army Colonel John Sprague in full military uniform. Florida ratified the 14th Amendment on June 9, 1868. While Congress debated the readmission of Florida, it was pointed out that the text of the Amendment ratified by the state contained numerous errors and variations. Some senators, therefore, argued that Florida had not properly adopted the Amendment. Yet, after the ratifications of New York, Pennsylvania, Wisconsin, and Michigan were examined and found to have similar errors, some of them substantive, Congress decided that ratification in any form would suffice. Florida was therefore readmitted as a legal government. However, like Arkansas, Florida had ratified the 14th Amendment before Congress declared it a legal government.

After Florida ratified the Amendment, Congress changed the rules slightly. It declared that all the Southern states had, by adopting new constitutions, formed republican governments, and would be entitled to representation once they ratified the 14th Amendment. Congress, then, would no longer have to consider representation of an unreconstructed state once it ratified the Amendment. A state would automatically have its representation restored once it ratified the 14th Amendment. On these terms, North Carolina ratified the Amendment on July 2, 1868, Louisiana and South Carolina on July 9, 1868, and Alabama on July 16, 1868. But again, regardless of the coercive factor that ratification was still a condition precedent to admission in Congress, the governments that ratified the Amendment still cannot be considered legal state governments if they were not entitled to representation in Congress until after they ratified it.

These Southern ratifications seemed to give Secretary of State William Seward the required twenty-eight states necessary for the 14th Amendment to become law.

Secretary Seward had twenty-nine ratifications on file, but prior to receiving the twenty-eighth, New Jersey and Ohio had rescinded their ratification. Nevertheless, on July 20, 1868, Secretary Seward issued a proclamation declaring the 14th Amendment ratified. However, as one commentator has pointed out, “it is hard to ignore the tell-tale signs of irregularity that peer out from the fifteenth volume of the Statutes at Large.” Seward’s proclamation shows he obviously had doubts as to the validity of all of the listed twenty-nine ratifications. Clearly, on Seward’s mind was the constitutionality of using military force to set up new Southern governments as a means securing ratification. Seward’s proclamation explained that the Amendment had “also been ratified by newly constituted and newly established bodies avowing themselves to be and acting as the legislatures, respectively, of the States of Arkansas, Florida, North Carolina, Louisiana, South Carolina, and Alabama.” As to the rescissions by Ohio and New Jersey, Seward noted that it was “a matter of doubt and uncertainty whether such resolutions” were valid. Seward further concluded his proclamation conditionally, stating, “if the resolutions of the legislatures of Ohio and New Jersey ratifying the aforesaid Amendment are to be deemed as remaining of full force and effect . . . then the aforesaid amendment has been ratified.”

Congress reacted quickly to Seward’s proclamation, and on July 21, 1868, declared all twenty-nine ratifications to be valid and that the 14th Amendment was “part of the Constitution of the United States, and it shall be duly promulgated as such by the Secretary of State.” On July 28, Seward, issued a second proclamation in conformance with the congressional resolution, and declared the 14th Amendment had “become valid to all intents and purposes as a part of the Constitution of the United States.”

The 14th Amendment has been considered a part of the Constitution ever since. Yet, 130 years after Secretary of State Seward’s proclamation, no one has answered the question of how the original reconstruction Southern governments were to be counted when they said “yes” to the 13th Amendment, but when they said “no” to the 14th Amendment, Congress had a right to destroy these governments, and then keep the new governments in the cold until they said “yes”?

Should we just go ahead and assume the validity of the 14th Amendment?

It is possible that a person, after reading the story of the ratification of the 14th Amendment, might say something like: “This is very interesting, but the 14th Amendment has been accepted as a part of the Constitution for over 130 years and we must assume its validity.” While this seems like a reasonable enough statement, there are certain unfavorable consequences forced upon one who assumes it is valid. These consequences are set out in the following scenarios from which one is required to choose from if he assumes the constitutionality of the 14th Amendment.

Scenario A: The “Thirteenth-Fourteenth Amendment Paradox.” One possibility may be to assume that the Southern governments were so “unrepublican” that they could constitutionally be excluded from Congress and deprived of their right to participate in the proposal of the Amendment. It must further be assumed that the Reconstruction Acts were constitutional and that Congress had the power to set up, through military occupation, republican governments in the South and compel ratification by these new governments and that these ratifications were valid even before Congress had declared these new governments “legal.” These assumptions save the 14th Amendment, but in a way that necessarily invalidates the 13th Amendment. For if the Southern governments were unconstitutionally unrepublican, there is no way to justify counting their ratifications towards the 13th Amendment. One is thereby left with the unfortunate choice between the validity of the 14th Amendment or the abolition of slavery.

Scenario B: Constitutional Secession. Another possibility would be to assume that a state may somehow constitutionally leave, or be removed from, the Union through some method such as an ordinance of secession or by state suicide. With this assumption, one could conclude that the Southern states were not entitled to representation in Congress and were not to be counted in determining whether three-fourths of the states had ratified an amendment. Therefore, if one also assumes that the resolutions by New Jersey, Ohio, and Oregon rescinding their ratifications were invalid, then the 14th Amendment can be saved. One who chooses to follow this scenario must not only repudiate the principle of an indissoluble Union, but also several Supreme Court decisions holding that the South had never left the Union as well as actions by the legislative and executive branches that asserted the South had never left the Union. Even if one decides that recognizing some form of secession or method for dissolution of the Union is not so bad when compared to invalidation of the 14th Amendment, this scenario is still problematic simply because it was not the method followed by Congress.

Scenario C: Ratification Outside Article V. A final method which might potentially save the 14th Amendment would be to assume that the Constitution can legally be ratified outside of the method set out in Article V. For example, one might argue that the North had a right to force the Southern governments to accept the 14th Amendment because it had the South within “the grasp of war.” This “grasp of war” theory would save both the 13th and 14th Amendments without recognizing any form of secession by assuming that these amendments were not made part of our Constitution through Article V ratification, but by Gettysburg and Appomattox. While this would save the 14th Amendment, “grasp of war” is an extremely undesirable justification for the Amendment, because while all amendments other than the Reconstruction amendments were products of the constitutional will of the American people, the 14th Amendment would then find its justification solely by the guns of the Union Army. Equally troubling is that, if the “grasp of war” theory is assumed to be a constitutional method for ratification, what other extra-Article V amendment methods might be found to exist?

The most disturbing problem arising out of the 14th Amendment ratification story is the precedent for constitutional amendment it may have set. For one to assume the constitutionality of the Amendment, they must accept its method of proposal and ratification as constitutional. Therefore, one who accepts the constitutionality of the 14th Amendment must also accept the premise that, at least in certain circumstances, Congress may deny states their representation in Congress in order to compel ratification of a desired amendment. This cannot be right, but the dilemma is heightened by the recognition that the 14th Amendment is a cornerstone of federal jurisprudence.

There is simply no acceptable outcome if we are forced to choose between accepting a doctrine of congressional coercion or the 14th Amendment. The only answer, besides ignoring the question, is to re- propose the 14th Amendment.

It seems quite clear that the 14th Amendment was not ratified, if proposed, even loosely within the text of Article V of the Constitution. Article V does not give Congress the power to deny a state representation in Congress without its consent. In fact, it prohibits such conduct. Nor does Article V give Congress the power to abolish a state government when it refuses to ratify a proposed amendment. And certainly, Article V does not allow Congress to deny a state its representation until it ratifies a desired amendment.

Furthermore, Article V is the only way the Constitution can be amended. The Supreme Court in Hawke v. Smith (1920) has stated:

Article V is a grant of authority by the people to Congress. The determination of the method of ratification is the exercise of a national power specifically granted by the Constitution; that power is conferred upon Congress, and is limited to two methods, by action of the legislatures of three-fourths of the States, or conventions in a like number of States. The Framers of the Constitution might have adopted a different method. Ratification might have been left to a vote of the people, or to some authority of government other than that selected. The language of the article is plain, and admits of no doubt in its interpretation. It is not the function of courts or legislative bodies, national or state, to alter the method which the Constitution has fixed.

So, if the Constitution can only be amended through Article V, and the 14th Amendment was not ratified properly under that Article, what is its status? It seems as though this question can only be answered in one way. However, having the 14th Amendment suddenly declared invalid would be disastrous. There would be a long list of cases, including many landmark cases such as Brown v. Board of Education, Roe v. Wade, all the religion and prayer cases, and McDonald v. Chicago, which would be invalidated. The question is one for the Supreme Court. Yet, in Coleman v. Miller (1939), the Court discussed the ratification of the 14th Amendment for the first, and likely the last time.

The Court did not discuss whether the ratification had conformed to Article V. It said only that:

While there were special circumstances, because of the action of the Congress in relation to the governments of the rejecting States (North Carolina, South Carolina and Georgia), these circumstances were not recited in proclaiming ratification and the previous action taken in these States was set forth in the proclamation as actual previous rejections by the respective legislatures. This decision by the political departments of the Government as to the validity of the adoption of the 14th Amendment has been accepted. We think that in accordance with this historic precedent the question of the efficacy of ratifications by state legislatures, in the light of previous rejection or attempted withdrawal, should be regarded as a political question pertaining to the political departments, with the ultimate authority in the Congress in the exercise of its control over the promulgation of the adoption of the Amendment.

So, while the Court seemed to recognize that there were problems with the 14th Amendment’s ratification, it decided that Article V questions are non-justiciable political questions. It seems that whenever the Congress and the Secretary of State proclaim an amendment to be ratified, that proclamation is binding on the Court and “would not be subject to review by the courts.” While the wisdom of applying this political question doctrine to declared amendments is questionable, the Court has been true to its word in Coleman, as it has not decided a single Article V case since. Still, the ratification process of the 14th Amendment has never been reviewed by the Supreme Court and, in light of Bush v. Gore (2000), the political question doctrine may have lost favor with the Court. So, while a federal court would likely be unreceptive to an argument claiming the 14th Amendment invalid, it would make for an interesting affirmative defense. The 14th Amendment will, undoubtedly, remain a part of the Constitution, but as one commentator has stated, “no one ever became rich by predicting what the Supreme Court would do from one generation to another.” We should at least be aware of its irregular adoption and guard against such constitutional disrespect in the future. Congress should also seriously consider re- proposing the Amendment if it is concerned with preserving Equal Protection and Due Process for future generations.

The ratification story of the 14th Amendment, which shows the irregular and likely unconstitutional process by which it has been declared part of our Constitution, demonstrates that a major cornerstone of constitutional law is placed on a shaky and uneasy foundation. Un- fortunately, although one may wish to remedy the constitutional wrongs committed during its ratification, it is apparent that this cornerstone amendment should be left in place, lest the entire house of higher law as we know it should come toppling down. It is not too late, however, to shore up the foundation of constitutional jurisprudence. Congress and the states should re-propose and ratify the 14th Amendment, and thereby ensure the principles of equal protection and due process which the Amendment guarantees.

Reference: Douglas H. Bryant, “Unorthodox and Paradox: Revisiting the Fourteenth Amendment,” Alabama Law Review, Vol. 53, 2:555. Referenced at: https://www.law.ua.edu/pubs/lrarticles/Volume%2053/Issue%202/Bryant.pdf

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Why Have African-Americans Abandoned the Republican Party When the Republican Party Has Never Abandoned Them?

          by Diane Rufino

“I have no separate feeling about being an American citizen and colored. I am merely a fragment of the Great Soul that surges within the boundaries. My country, right or wrong.”    –  Zora Neale Hurston.

The history of African-Americans is a history of cruelty and callousness. But then it became a history of triumph and character.  As Frederick Douglass once said, in the beginning we watched how a man was made a slave, but then we saw how a slave was made a man.

When the delegates from twelve of the original thirteen states met in Philadelphia in 1787 (Rhode Island didn’t participate) to draft a new constitution that would “create a more perfect union,” the hope, and indeed the plan, was to abolish slavery. At first, South Carolina, Georgia, and North Carolina refused to join that union if the institution was outlawed, but then North Carolina gave in, noting that it already had a state law which banned the slave trade (although not directly).  But South Carolina and Georgia were steadfast and unyielding.  The plan for a Union would not work without those states.  [1]

Thomas Jefferson said: “There is preparing, I hope, under the auspices of heaven, a way for a total emancipation.” George Washington said, near the end of his life, wrote these words:  “It is among my first wishes to see some plan adopted by which slavery in this country shall be abolished by law. I know of but one way by which this can be done, and that is by legislative action; and so far as my vote can go, it shall not be wanting.”  Patrick Henry said, “We should transmit to posterity our abhorrence of slavery.”  And George Mason, of Virginia, who refused to sign the Constitution because it did not abolish slavery outright, was particularly passionate on the subject: “Slavery is slow poison, which is daily contaminating the minds and morals of our People. Practiced in acts of despotism and cruelty, we become callous to the dictates of humanity, and all the finer feelings of the soul. Taught to regard a part of our own species in the most abject and contemptible degree below us, we lose that idea of the dignity of Man, which the hand of nature had implanted in us, for great and useful purposes…..    Every master of slaves is born a petty tyrant. Slaves bring the judgment of heaven on a country. As nations cannot be rewarded or punished in the next world they must be in this. By an inevitable chain of causes and effects, Providence punishes national sins, by national calamities.”  [Mason’s prediction about “national calamities” would come to pass in 1861].

A compromise was needed to bring South Carolina and Georgia together with the other states.

In the final draft of the Constitution, as submitted on September 17, 1787, a provision was intentionally included in Article I, respecting the duties of the legislative branch.  In Section 9 (“Limits on Congress”), our drafters included the following prohibition: “The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.”  In other words, the government could not ban the importation of slaves for 20 years after the adoption of the Constitution.

The compromise on slavery occurred because the delegates as a whole agreed with Roger Sherman of Connecticut, who made the observation that it was better to let the Southern states import slaves than to part with those states.

As the designated year 1808 approached, those opposed to slavery began making plans for legislation that would ban, or outlaw, the trans-Atlantic slave trade.

In fact, in 1805, the first such piece of legislation was introduced by a senator from Vermont. The following year, in his annual address to Congress, President Thomas Jefferson urged Congress to pass the bill, which it did.  The law was finally passed by both houses of Congress on March 2, 1807, and then signed it into law on March 3, 1807 by Jefferson.  However, given the restriction imposed by Article I, Section 9 of the Constitution, the law would only become effective on January 1, 1808.

The 1807 law ending the importation of slaves did nothing to stop the buying and selling of slaves within the United States and that turned out to be another battle for another day.  This issue of slavery would not be resolved until the end of the Civil War and then with the passage of the 13th Amendment.

The condition of the Negro during the time of slavery here in the United States can be summed up by a sermon delivered in 1808 by Bishop Absalom Jones:

The history of the world shows us, that the deliverance of the children of Israel from their bondage, is not the only instance, in which it has pleased God to appear in behalf of oppressed and distressed nations, as the deliverer of the innocent, and of those who call upon his name. He is as unchangeable in his nature and character, as he is in his wisdom and power. He has seen the affliction of our countrymen, with an eye of pity. He has seen the wicked arts, by which wars have been fomented among the different tribes of the Africans, in order to procure captives, for the purpose of selling them for slaves. He has seen ships fitted out from different ports in Europe and America, and freighted with trinkets to be exchanged for the bodies and souls of men. He has seen the anguish which has taken place, when parents have been torn from their children, and children from their parents, and conveyed, with their hands and feet bound in fetters, on board of ships prepared to receive them. He has seen them thrust in crowds into the holds of those ships, where many of them have perished from the want of air. He has seen such of them as have escaped from that noxious place of confinement, leap into the ocean; with a faint hope of swimming back to their native shore, or a determination to seek early retreat from their impending misery, in a watery grave. He has seen them exposed for sale, like horses and cattle, upon the wharves; or, like bales of goods, in warehouses of West India and American sea ports. He has seen the pangs of separation between members of the same family. He has seen them driven into the sugar; the rice, and the tobacco fields, and compelled to work–in spite of the habits of ease which they derived from the natural fertility of their own country in the open air, beneath a burning sun, with scarcely as much clothing upon them as modesty required. He has seen them faint beneath the pressure of their labors. He has seen them return to their smoky huts in the evening, with nothing to satisfy their hunger but a scanty allowance of roots; and these, cultivated for themselves, on that day only, which God ordained as a day of rest for man and beast. He has seen the neglect with which their masters have treated their immortal souls; not only in withholding religious instruction from them, but, in some instances, depriving them of access to the means of obtaining it. He has seen all the different modes of torture, by means of the whip, the screw, the pincers, and the red hot iron, which have been exercised upon their bodies, by inhuman overseers: overseers, did I say? Yes: but not by these only. Our God has seen masters and mistresses, educated in fashionable life, sometimes take the instruments of torture into their own hands, and, deaf to the cries and shrieks of their agonizing slaves, exceed even their overseers in cruelty. Inhuman wretches! though You have been deaf to their cries and shrieks, they have been heard in Heaven. The ears of Jehovah have been constantly open to them: He has heard the prayers that have ascended from the hearts of his people; and he has, as in the case of his ancient and chosen people the Jews, come down to deliver our suffering country-men from the hands of their oppressors. He came down into the United States, when they declared, in the constitution which they framed in 1788, that the trade in our African fellow-men, should cease in the year 1808.  He came down into the British Parliament, when they passed a law to put an end to the same iniquitous trade in May, 1807.  He came down into the Congress of the United States, the last winter, when they passed a similar law, the operation of which commences on this happy day.”

Bishop Jones delivered that sermon on January 1, 1808, in St. Thomas’s, or the African Episcopal, Church, Philadelphia, in recognition of the legislation that was passed that day by the US Congress to abolish the African slave trade.

By 1820, most of the Founding Fathers were dead and Thomas Jefferson’s party, the Democratic-Republican Party, had become the majority party in Congress, outnumbering the Federalists.  In fact, 1820 is said to be the year which marked the death of the Federalist Party.  With this new Democratic-Republican Party in charge, a change in congressional policy emerged.  At the time, a law that was enacted in 1789, prohibiting slavery in federal territory, was still on the books. In 1820, the Democratic-Republican Congress passed the Missouri Compromise and reversed that earlier policy and thereby permitted slavery in almost half of the federal territories. Several States were subsequently admitted as slave States.  For the first time since the Declaration of Independence and the Constitution, slavery was being officially promoted by congressional policy. Yet, the only way for the Congress to promote slavery was to ignore the principles in the founding documents. As Founding Father and President John Quincy Adams explained:  “The first step of the slaveholder to justify by argument the peculiar institutions of slavery is to deny the self-evident truths of John Quincy Adams the Declaration of Independence. He denies that all men are created equal. He denies that they have inalienable rights.”

Jefferson’s Democratic-Republican Party would lay the foundation for the Democratic Party.  In 1828, the Democratic-Republicans split over the choice of a successor to President James Monroe, and the party faction that supported many of the old Jeffersonian principles, led by Andrew Jackson and Martin Van Buren, became the Democratic Party.  Andrew Jackson is considered our first Democratic president.  Ironically, the Democratic party believed in strict adherence and strict interpretation of the Constitution, as well as limited government and states’ rights, and it opposed a national bank and the concentration of wealth in the hands of a few.  [2]

The Democrats soon became the leading party in Congress and they passed several pro-slavery laws, including the infamous 1850 Fugitive Slave Law.  The Fugitive Slave Law required Northerners to return escaped slaves back into slavery or else pay huge fines. In many instances, the law became little more than an excuse for southern slave hunters to kidnap free blacks in the North and carry them into slavery in the South.

In 1854, the democratically-controlled Congress passed another law which strengthened slavery – the Kansas-Nebraska Act. Even though Democrats in Congress had already expanded the federal territories in which slavery was permitted through their passage of the Missouri Compromise, the compromise retained a ban on slavery in the particular territory that would later become the states of Kansas and Nebraska. But through the Kansas-Nebraska Act, the Democrats were able to repeal that ban and therefore allow slavery to be introduced into parts of the new territory where it previously had been forbidden, thereby increasing the national area in which slavery would be permitted. This law led to what was called “bleeding Kansas,” where pro-slavery forces came pouring into the territory that was previously free and began fighting violent battles against the anti-slavery inhabitants there.

Northern leaders such as Horace Greeley (famous NY newspaper editor of his day), Ohio Senator Salmon Chase (a senator from Ohio, and Massachusetts Senator Charles Sumner (senator from Massachusetts, known as a powerful orator) could not sit back and watch the flood of pro-slavery settlers cross the parallel. They began to toss around the idea for a new party.  In 1854, six anti-slavery members of Congress – belonging to the Democratic Party, the Whig Party, and the Free Soil Party – wrote an article entitled “Appeal of the Independent Democrats” which was widely published in major newspapers all over the states and territories and which criticized the Kansas-Nebraska Act.  The six authors were as follows:

Salmon P. Chase  (Senator from Ohio; member of the Free Soil Party; later to become Lincoln’s Secretary of Treasury and then appointed by him to the Supreme Court where he later wrote an opinion announcing that states have no right to secede from the Union)

Charles Sumner (Senator from Massachusetts; although he helped found the Free Soil Party, he took his seat in the US Senate in 1851 as a Democrat. Sumner was known as a powerful orator. In fact, in 1856, after he delivered an intensely anti-slavery speech called “The Crime Against Kansas” on the Senate floor, he was almost beaten to death by a senator from South Carolina)

J. R. Giddiugs   (anti-slavery congressman from Ohio; member of the Whig Party who would befriend a fellow Whig, Abraham Lincoln)

Edward Wade  (Congressman from Ohio, member of the Free Soil Party)

Gerritt Smith  (Congressman from New York, member of the Free Soil Party; staunch abolitionist)

Alexander De Witt  (Congressman from Massachusetts, member of the Free Soil Party)

The “Appeal of the Independent Democrats” stated:

      “The original settled policy of the United States, clearly indicated by the Jefferson provision of 1784 and the Northwest Ordinance of 1787, was non-extension of slavery.  In 1803 Louisiana was acquired by purchase from France and the plain language of the treaty under which the territory had been acquired from France emphasized that national policy……

     We appeal to the people. We warn you that the dearest interests of freedom and the Union are in imminent peril. Demagogues may tell you that the Union can be maintained only by submitting to the demands of slavery. We tell you that the Union can only be maintained by the full recognition of the just claims of freedom and man. The Union was formed to establish justice and secure the blessings of liberty. When it fails to accomplish these ends it will be worthless, and when it becomes worthless it cannot long endure.

     We entreat you to be mindful of that fundamental maxim of Democracy—EQUAL RIGHTS AND EXACT JUSTICE FOR ALL MEN. Do not submit to become agents in extending legalized oppression and systematized injustice over a vast territory yet exempt from these terrible evils.

     We implore Christians and Christian ministers to interpose. Their divine religion requires them to behold in every man a brother, and to labor for the advancement and regeneration of the human race.

     Whatever apologies may be offered for the toleration of slavery in the States, none can be offered for its extension into Territories where it does not exist, and where that extension involves the repeal of ancient law and the violation of solemn compact. Let all protest, earnestly and emphatically, by correspondence, through the press, by memorials, by resolutions of public meetings and legislative bodies, and in whatever other mode may seem expedient, against this enormous crime.

      For ourselves, we shall resist it by speech and vote, and with all the abilities which God has given us. Even if overcome in the impending struggle, we shall not submit. We shall go home to our constituents, erect anew the standard of freedom, and call on the people to come to the rescue of the country from the domination of slavery. We will not despair; for the cause of human freedom is the cause of God.”

Following the publication of this “Appeal,” spontaneous anti-slavery demonstrations occurred throughout 1854.  Sentiment was quickly building for this new political party which would oppose slavery and help secure equal civil rights for negroes.  It would become known as the Republican Party.  The Republican Party name was christened in an editorial written by newspaper magnate Horace Greeley. Greeley printed in June 1854: “We should not care much whether those thus united against slavery are designated ‘Whig,’ ‘Free Democrat’ or something else.  We  think some simple name like ‘Republican’ would more fitly designate those who had united to restore the Union to its true mission of champion and promulgator of Liberty rather than propagandist of slavery.”

By 1855 it would already have a majority in the US House of Representatives.  By 1856, it held its first nominating convention, in Philadelphia, where it announced that it had become a unified political force.  It’s first presidential candidate would be Abraham Lincoln in 1860.  And his platform would specifically include a pledge not to permit slavery to exist into any US territory that was not already a state.

Before Lincoln would run for president, there would be one more insult to the negro – the infamous Dred Scott decision of 1857. This decision would energize the growing abolitionist movement.

In Dred Scott v. Sandford, the Supreme Court addressed the issue of whether a slave who escaped from a slave state to a free state is considered free.  And the words and thought which flowed from the minds of such supposed constitutional scholars entrusted with the bench of the highest court in the land represented the lowest point in American constitutional jurisprudence.

On March 6th, 1857, Chief Justice Roger B. Taney, a Democrat, a staunch supporter of slavery, and one intent on protecting the South from northern aggression, delivered the majority opinion. He summed the case up in one question: “The question is simply this: Can a negro, whose ancestors were imported into this country (from Africa), and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guaranteed by that instrument to the citizen?  One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution.”

Taney answered: “We think they are not, and that they are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.”

Seven of the nine justices agreed that Dred Scott should remain a slave, but Taney did not stop there. He referred to blacks as an “inferior race” and an “unfortunate race” and a degraded and unhappy race.”  He said they are “beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery.”  He ruled that blacks, whether slaves or as free men, are descended from an inferior race which was never intended to be included among the class of persons protected by our Declaration of Independence or Constitution.  As he explained, the framers of the Constitution believed that blacks “had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold and treated as an ordinary article of merchandise and traffic, whenever profit could be made by it.” Justice Taney ruled that as a slave, Scott was not a citizen of the United States, could never be a citizen, was therefore not entitled to any rights or privileges afforded by the Constitution, and therefore had no right to bring suit in the federal courts on any matter.  In other words, because blacks (Africans, as Taney referred to them) are an inferior race, they are only fit to serve the interests of other human beings. No African, therefore, can ever be protected by the Constitution.  Referring to the language in the Declaration of Independence that includes the phrase, “all men are created equal,” Taney reasoned that “it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration….”

In addition, he declared that Scott had never been free, due to the fact that slaves were personal property; thus the Missouri Compromise of 1820 was unconstitutional, and the Federal Government had no right to prohibit slavery in the new territories. The court appeared to be sanctioning slavery under the terms of the Constitution itself, and saying that slavery could not be outlawed or restricted within the United States.

There was a growing abolitionist movement in the United States at the time, particularly in the northern states.  And the Dred Scott decision gave further fuel to ignite the movement.  As mentioned above, Abraham Lincoln ran in 1860 on a platform which promised to end the spread of slavery. He would prohibit slavery in any territory of the United States; only those states already established would be able to keep the institution. He believed if slavery was contained, it would easily die a natural death.  [3]

When Lincoln won the election, and even before he was inaugurated, the southern states began to secede from the Union.  South Carolina led the way.  Eleven southern states would secede and form a new nation – the Confederate States of America – with their own constitution, government, and leaders. Their new constitution permitted slavery outright.  President Lincoln, believing the states had no right to secede, attacked the Confederacy (at Fort Sumter) and engaged them a Civil War from 1861-1865.

The Civil War was fought for many reasons but one instigating factor was slavery, indeed.  While the North did not invade the South for the purpose of abolishing slavery, in 1863, it became politically expedient for Lincoln to announce that slaves will be emancipated.  He figured it would energize the war effort, hasten the defeat of the South, and end the war.  And so, on January 1, as the nation approached its third year of horrible bloodshed, Lincoln issued his Emancipation Proclamation which declared that “all persons held as slaves within the rebellious states are, and henceforward, shall be free.”  The 1963 Emancipation Proclamation was a great boost for moral, particularly among slaves and abolitionists.

Despite this expansive wording, the Emancipation Proclamation was limited in many ways.  First, it would be seen as a temporary war measure, since it was solely based on Lincoln’s war powers. Furthermore, the Proclamation did not free any slaves in the border states nor itself make slavery illegal. It applied only to states that had seceded from the Union, leaving slavery untouched in the loyal border states. It also expressly exempted parts of the Confederacy that had already come under Northern control. Most important, the freedom it promised depended upon Union military victory.  What it did, however, was to invigorate the abolitionist sentiment in the north, and more importantly, it changed the character of the war.  The war went from being a war to re-unite and save the Union to a war to free the slaves.  After Lincoln delivered the Proclamation, every advance of federal troops expanded the domain of freedom. Moreover, the Proclamation announced the acceptance of black men into the Union Army and Navy, enabling the liberated to become liberators. By the end of the war, approximately 186,000 black soldiers and sailors had fought for the Union and for freedom.  But how to overcome the limitations of the Emancipation Proclamation and memorialize the intent and spirit it represented?

A constitutional amendment would have to be the answer.

Even before the war had come to an end, in April 1865, an amendment to the US Constitution was drafted to abolish slavery and a vote was taken in Congress.  It would be the 13th Amendment, which provides: “Neither slavery nor involuntary servitude shall exist within the United States, or any place subject to their jurisdiction.”  The Senate proposed the amendment in February of 1864 and passed it two months later.  But the House refused to pass it.  President Lincoln then got involved.  If the House wouldn’t pass it, then he would make sure the amendment was added to the Republican Party platform for the upcoming Presidential election. His efforts must have worked because the House passed the joint resolution (the 13th Amendment) on January 31, 1865, by a vote of 119 to 56.  It was a very partisan amendment, with 100% of House republicans voting in favor and only 23% of democrats supporting it. It was then sent to the states for adoption.  Note that the Civil War had not yet been won at this point.  The bloody war would not end until April 9, when the great General Robert E. Lee surrendered the Army of Northern Virginia (the confederate army) to the victorious General Ulysses S. Grant at Appomattox, Virginia.

The 13th Amendment was finally ratified on December 6, 1865 when 27 out of the 36 states ratified it (= 3/4 of the states, as required by Article V of the Constitution).  Unfortunately, Lincoln would not live to see the day when slavery would be officially abolished in the country for he was assassinated on Good Friday, April 14.

When the war ended, and the Confederate States of America were defeated, plans had to be made for the individual southern states to re-enter the Union.  Conditions had to be required. And as it turned out, some degree of punishment would be inflicted as well.  While the 13th Amendment received the approval of 3/4 of the states and became effective as part of the Constitution, many of the southern states were still bitter and not willing to recognize blacks as anything other than slaves or an inferior race of people. Slavery may have been abolished by the Constitution but it didn’t mean that they, as states, had to treat them any differently.  Blacks may have been free, but the states weren’t about to permit them to be citizens.  And so Congress came up with the Civil Rights Act.

That was still the year of 1865.

In 1865,  Republican Senator Lyman Trumbull (of Illinois) proposed the Civil Rights Act.  (He was also the co- drafter of the 13th Amendment).  The Civil Rights Act declared that people born in the United States and not subject to any foreign power are entitled to be citizens, without regard to race, color, or previous condition of slavery or involuntary servitude.  It also said that any citizen has the same right as a white citizen to make and enforce contracts, sue and be sued, give evidence in court, and inherit, purchase, lease, sell, hold, and convey real and personal property.  The Civil Rights Act passed both houses of Congress, but President Andrew Johnson vetoed it – in 1865 and then again in 1866.  But in 1866, a 2/3 majority in each house overcame the veto and the bill became law (hence, the official name of the legislation – the Civil Rights Act of 1866).  But that victory didn’t come without a fight by the Democrats.  Democrats tried to stall the passing of this legislation by declaring it was unconstitutional, but Trumball, an attorney and former chief justice of the Illinois Supreme Court, countered by arguing that Congress had power to enact it in order to eliminate a discriminatory “badge of servitude” prohibited by the Thirteenth Amendment.  [In the 20th century, the US Supreme Court would ultimately adopt Trumbull’s rationale in finding congressional power to ban racial discrimination by states and by private parties].

To eliminate any doubt about its constitutionality and to make sure that no subsequent Congress would later repeal or alter its core provisions, Republican members of  Congress decided to memorialize the Civil Rights Act in a constitutional amendment. The Civil Rights Act of 1866 would become our 14th Amendment.  Republican members of the US Congress took advantage of the fact that the southern states were not yet restored to the Union.  In order to be sure that they had the required majority of Senators to pass the amendment (2/3, as required by Article V of the Constitution), they pulled a fast one.  They simply refused to seat Senators from the southern states.

The 14th Amendment declares that free slaves are citizens – not only of the United States but also of the state in which they reside – and as such are entitled to all the privileges and immunities of citizenship.  (“All persons born in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state they reside.”)   It also provides that freed slaves cannot be deprived of Life, Liberty, and Property without Due Process and that they are entitled to the Equal Protection of the laws.  The Citizenship Clause and the Equal Protection Clause of the 14th Amendment paralleled the “citizenship” language and the “nondiscrimination” language, respectively, in the Civil Rights Act of 1866.  (They would not be re-admitted until 1868- 1870).

Specifically, the 14th Amendment reads:   Section 1:  “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. No State shall make or enforce any law which shall abridge the privileges or 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 Citizenship Clause provides a broad definition of citizenship that expressly overruled the infamous Dred Scott decision of 1857, which declared that all blacks – slaves as well as free – were not and could never become citizens of the United States.  The Due Process Clause prohibits state and local governments from depriving persons of life, liberty, or property without certain steps being taken to ensure fairness. This clause has been used to make most of the Bill of Rights applicable to the states, as well as to recognize substantive and procedural rights. And the Equal Protection Clause requires each state to provide equal protection under the law to all people within its jurisdiction. This clause was the basis for the Supreme Court’s decision in Brown v. Board of Education (1954), which precipitated the dismantling of racial segregation in our schools.

The 14th Amendment was proposed on June 13, 1866, as House Joint Resolution 127, and was then immediately sent to the states for ratification.  At that time, the eleven defeated confederate states were not yet re-admitted to the Union. Nonetheless, as with the 13th Amendment, they were asked to ratify the 14th Amendment, which all refused to do – except Tennessee, which adopted it immediately and was therefore permitted re-admission. It was re-admitted on July 24, 1866. (Tennessee had been conflicted even from the very beginning as to whether it wanted to secede or not.  In fact, after the state legislature voted to secede from the Union, a large portion of the population tried to secede from Tennessee and remain with the Union).  In addition, the 14th Amendment was decidedly rejected by the border states as well. By March 1867, twenty states had ratified and thirteen had rejected the proposed amendment. With the southern and border states refusing to adopt the 14th Amendment, it failed to secure the 3/4 of states necessary for ratification as required under Article V.   And so the amendment failed to pass.

After learning that the proposed amendment’s failure, the Republicans (specifically referred to as the “Radical Republicans”) in Congress responded by passing the Reconstruction Act of March 2, 1867, which essentially put the south under martial law and restricted their abilities to govern themselves and to participate in the federal government.  Under the congressional plan, the former confederacy (minus Tennessee) was broken up into five military districts. Each district was under the control of federal troops and headed by a particular northern Civil War general.  This was the notorious Reconstruction Era, which would have longstanding impressions on the southern states.  The purpose of Reconstruction, as was made clear by the Reconstruction Act, was to punish the South.  The law set out to determine the conditions under which the southern states would be permitted to return to the Union, how they would be re-seated in government, how they would govern themselves, what would become of their “rebellious” leaders, and how they would treat their freedmen.  All this would be determined while the states were under martial law and under the scrutiny of the federal government.  Specifically, in order to be re-admitted to the Union , the states would have to rewrite their constitutions to disqualify former Confederate officials from office and guarantee black males the right to vote.  Most importantly, the states would have to ratify the 14th Amendment.  Once these conditions were met and military rule was ended, then could the former confederate states be re-admitted to the Union.  As one Republican (northern) representative described the situation: “The people of the South have rejected the constitutional amendment and therefore we will march upon them and force them to adopt it at the point of the bayonet.”

By July 9, 1868, with ratification by North Carolina, Louisiana, and then South Carolina, enough states had ratified the 14th Amendment so that it was certified to become part of the US Constitution.  It would not be until 1870 that the last southern state, Georgia, would be re-admitted and the Union would be reconstituted.  [4]

Let’s return again to the year 1865.  In that year, the Republican Congress created the Bureau of Refugees, Freedman, and Abandoned Lands (aka, “Freedman’s Bureau”) to help freed slaves transition from bondage to freedom.  An Inquiry Commission was tasked with assessing the needs of Freedman to justify whether such a Bureau was  worthwhile, and in their Final Report, the Commission concluded:

“Let us beware the temptation to treat the colored people with less than even justice, because they have been, and still are, lowly and feeble. Let us bear in mind that, with governments as with individuals, the crucial test of civilization and sense of justice is their treatment of the weak and the dependent.

God is offering to us an opportunity of atoning, in some measure, to the African for our former complicity in his wrongs. For our own sakes, as well as for his, let it not be lost. As we would that He should be to us and to our children, so let us be to those whose dearest interests are, by His providence, committed for the time to our charge.

As regards the question, What amount of aid and interference is necessary or desirable to enable the freedmen to tide over the stormy transition from slavery to freedom?   We have chiefly to say that there is as much danger in doing too much as in doing too little. The risk is serious that, under the guise of guardianship, slavery, in a modified form, may be practically restoredThose who have ceased, only perforce, to be slave-holders, will be sure to unite their efforts to effect just such a purpose. It should be the earnest object of all friends of liberty to anticipate and prevent it. Benevolence itself, misdirected, may play into the hands of freedom’s enemies, and those whose earnest endeavor is the good of the freedman may, unconsciously, contribute to his virtual re-enslavement.

The refugees from slavery, when they first cross our lines, need temporary aid, but not more than indigent Southern whites fleeing from secessionism, both being sufferers from the disturbance of labor and the destruction of its products incident to war. The families of colored men, hired as military laborers or enlisted as soldiers, need protection and assistance, but not more than the families of white men similarly situated. Forcibly deprived of education in a state of slavery, the freedmen have a claim upon us to lend a helping hand until they can organize schools for their children. But they will soon take the labor and expense out of our hands, for these people pay no charge more willingly than that which assures them that their children shall reap those advantages of instruction which were denied to themselves.

For a time we need a freedman’s bureau, but not because these people are negroes, only because they are men who have been, for generations, despoiled of their rights. The Commission has, in supplemental report made to you last December, recommended the establishment of such a bureau, and they believe that all that is essential to its proper organization is contained, substantially, in a bill to that effect reported on April 12 from the Senate Committee on Slavery and Freedmen.”

The Freedman’s Bureau established schools to teach freed slaves how to read and write and provide them with a basic education. The Bureau also provided food, set up courts to protect emancipated slaves’ contractual and other civil rights, and founded savings banks to protect their assets. The crowning achievement of the Freedman’s Bureau was its significant accomplishments in the area education, particularly in the face of the hostile political environment towards blacks at the time. By the end of 1867, the number of schools had doubled and the number of blacks (adults and children) being educated had tripled.  At the same time, the number of banks (including the “Freedman’s Saving & Trust Company,” chartered by Congress) had increased and freedmen were saving at a rate of four times higher than the previous year to purchase homestead plots and businesses.

Unfortunately, the activities of groups such as the Ku Klux Klan (KKK), as well as state action in the form of Black Codes and then Jim Crow, would present barriers to the Republican’s plan to advance the freed slaves and make sure that the Civil Rights Act of 1866 would fail to secure their civil rights. The KKK, as we’ll soon see, was started in 1866 to frustrate the attempts of Republicans to infect the South.  Black Codes were laws that were passed in the 1860′s by the Southern states (and varying from state to state), to maintain the inferiority of freed blacks and to undermine their civil rights. The black codes were passed in retaliation to the abolition of slavery and the defeat by the North.  They had their roots in the former slave codes, which were premised on the notion that Africans were property, or chattel (and therefore, had very few, if any, legal rights).  Black Codes were distinct from Jim Crow. Jim Crow refers to an era ushered in later in the 19th century, following Reconstruction.

As mentioned earlier, 1867 was the start of the Reconstruction Era.  In order to be re-admitted to the Union , the former confederate states would have to endure military rule until they met the conditions set forth in the Reconstruction Act –  including rewriting their constitutions to disqualify former Confederate officials from office, guaranteeing black males the right to vote, and ratifying the 14th Amendment.  During Reconstruction, military governors oversaw the registration of voters, in order that freed slaves were not disenfranchised. Under the scrutiny of federal troops, elections were held in which the freed slaves could vote. At the same time, while whites who held leading positions under the Confederacy were not only barred from running for office but were also temporarily denied the right to vote.  It was a profoundly bitter time for the South.

Reconstruction was never part of Lincoln’s plan to restore the Union.  We have to take him at his word.  In his second Inaugural Address, he declared: “With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation’s wounds, to care for him who shall have borne the battle and for his widow and his orphan, to do all which may achieve and cherish a just and lasting peace.”

As one reference describes that period of time for the South: “Reconstruction is the period after the war when the South was under martial law and when the people basically lost their rights as Americans, was a terrible time for the citizens of the former Confederate States of America. It was intended by the US Congress as punishment for secession. The South was controlled by military leaders, who may have been excellent commanders in battle, but were pretty much universally horrible as governors. A ‘carpetbagger’ government was put in place… Men who were generally scoundrels and often criminals served as ‘rulers’ of the states and communities. They appointed former Union sympathizers and former slaves in positions of authority, to infuriate and humiliate the people. This was pretty much a lawless time throughout much of the south, not unlike that in the western territories. [Former Civil War General Nathaniel Bedford] Forrest described that government as ‘I believe that party to be composed, as I know it is in Tennessee, of the worst men on Gods earth – men who would not hesitate at no crime, and who have only one object in view – to enrich themselves.’ “  [ www.freesociety.com]

Reconstruction would last for 17 years and would be responsible for much of the resentment that the South continues to feel for the North and for the government in general.

In ten out of the eleven seceding southern states (again, all except Tennessee), black freedmen and white transplants from the North (known as “carpetbaggers” because many brought their belongings in large carpet bags)  and white Southerners who switched allegiance and supported Reconstruction (known as “scalawags“) joined together to establish republican bi-racial state governments during the Reconstruction era. They introduced various reconstruction programs, secured massive federal aid to re-build railroads and other transportation, established public school systems, and raised taxes to fund it all.  They also helped freed blacks become involved in the local government, become educated, and become employed. These groups, however, were seen as outsiders and/or traitors and were attempting to transform the South into a society that it wasn’t ready to accept. They would have to be stopped.  Thus was born the Ku Klux Klan.

History teaches us that the Ku Klux Klan was a violent organization aimed at terrorizing and intimidating former slaves. They operated as a secret society – a bunch of cowards with white gowns and masks, often carrying guns and a noose.  We know the Klan’s record of burning crosses and lynching negroes. We know its record on civil rights.

But the reason the Ku Klux Klan was formed was for a far different purpose.  The KKK was founded in 1866 in Pulaski, Tennessee, by six former Confederate officers of the Civil War.  These men approached distinguished General Nathan Bedford Forrest, one of the great heroes of the war, with the idea of a “police force” and asked for his “blessings,” for he held the love and respect of the people.  He gave his blessings, and in return, he was appointed their first leader. He was the first Grand Wizard.  He would describe the organization as a social club and as “a protective political military organization.”  It was initially formed to help take care of poor Confederate widows.  They also fought crime and “took care” of criminals.  In other words, they basically restored order to the South, where for years there was none.

In an interview, General Forrest had this to say: “Yes, sir. It is a protective political military organization. I am willing to show any man the constitution of the society. The members are sworn to recognize the government of the United States. It does not say anything at all about the government of Tennessee. Its objects originally were protection against Loyal Leagues and the Grand Army of the Republic; but after it became general it was found that political matters and interests could best be promoted within it, and it was then made a political organization, giving its support, of course, to the democratic party…….Since its organization, the leagues have quit killing and murdering our people. There were some foolish young men who put masks on their faces and rode over the country, frightening negroes, but orders have been issued to stop that, and it has ceased. You may say, further, that three members of the Ku-Klux have been court-martialed and shot for violations of the orders not to disturb or molest people.”

But soon, the Klan took on a more aggressive nature.  It began to “persuade” freed blacks to assume their former status and to “scare” them into not voting or running for any elected office, as well as to harass and intimidate northern transplants, southern republicans, and other southerners who were supportive of the Union.

Controversy exists over whether Forrest actually played an active part in the organization and when he decided to sever his associate with it.  Within a year or two of the Klan’s founding,  Forrest was asked if he was a member and he answered: “I am not, but am in sympathy and will co-operate with them. I know that they are charged with many crimes that they are not guilty of.”  In 1869  he asked the KKK to disband, stating: “being perverted from its original honorable and patriotic purposes, becoming injurious instead of subservient to the public peace.”

Again, the KKK, as originally intended, did not target Negroes.  In fact, Forrest gave many speeches and talks around the Memphis area from 1866, the year the KKK was founded, until 1874.  Most of these speeches talked of peace, patriotism for the US Constitution, and trying to bring the country back together.  On several occasions, he addressed black groups, to which he spoke these words: “We are born on the same soil, breathe the same air, live on the same land, and why should we not be brothers and sisters?”  This is hardly the rhetoric of the Ku Klux Klan that it would later become — a murderous hate group.

[Someone once asked Robert E. Lee to name the greatest soldier produced on either side during the war and he replied, “A man I have never seen, sir. His name is Forrest.”  William Tecumseh Sherman, General of the Army of the Potomac, who during the War called him “that devil Forrest,” also had a high opinion of Forrest and said, “Forrest was the most remarkable man our Civil War produced on either side.” ]

As we all know, the KKK would continue on to spread into nearly every Southern state, launching a “reign of terror” against Republican leaders – black and white.  It would become the “militant arm” of the Democratic Party.  Forrest’s grandson, Nathan Bedford Forrest II, a democrat and Grand Dragon of the KKK, wrote in the September 1928 edition of the Klan’s The Kourier Magazine: “I have never voted for any man who was not a regular Democrat.  My father  never voted for any man who was not a Democrat.  My grandfather was the head of the Ku Klux Klan in the Reconstruction days….  My great-grandfather was a life-long Democrat….  My great-great-grandfather was…one of the founders of the Democratic party.”

In Dr. Eric Foner’s book, A Short History of Reconstruction, he wrote: “In effect, the Klan was a military force serving the interests of the Democratic party, the planter class, and all those who desired the restoration of white supremacy.  It aimed to destroy the Republican party’s infrastructure, undermine the Reconstruction state, reestablish control of the black labor force, and restore racial subordination in every aspect of Southern life.”  [pg. 184].  He provides many accounts of the horrific acts of terror inflicted by Democrats on black and white Republicans.  Professor Foner recounts one such act of  terror: “Jack Dupree was a victim of a particularly brutal murder in Monroe County, Mississippi. Assailants cut his throat and disemboweled him, all within sight of his wife, who had just given birth to twins.  He was ‘president of a republican club‘ and known as a man who ‘would speak his mind.’”   [pp. 184-185].

After examining the abundant evidence concerning this violence, US Senator Roscoe Conkling concluded that the Democratic Party was determined to exterminate blacks in those States where Democratic supremacy was threatened.  As a response to Democratic violence in the South, and in order to further secure the civil rights of blacks, Congress passed the 15th Amendment, explicitly guaranteeing voting rights for blacks.

The 15th Amendment – the final of the three post-war civil rights amendments was proposed by the US Congress on February 26, 1869.  It was ratified by the states in 1870.  It was the first-ever constitutional expansion of voting rights.  Like the two previous civil rights amendments, it was passed along partisan lines. Not a single one of the 56 Democrats in Congress at that time voted for the 15th Amendment.  Not a single Democrat, either from the North or the South, supported granting explicit voting rights to black Americans. Several fierce advocates of equal rights, like Senator Charles Sumner of Massachusetts, abstained from voting because it did not go far enough, in their opinion.  They wanted the amendment to prohibit such arbitrary schemes which states might use to restrict black suffrage, such as literacy tests and poll taxes. Yet, despite the opposition from Democrats, the 15th Amendment did pass, thanks to the overwhelming support by Republican legislators. With the passage of this Amendment, leading abolitionist Wendell Phillips joyfully exclaimed, “We have washed color out of the Constitution!”

Reconstruction officially ended with the presidential election of 1876, which is discussed below. The newly-elected president, Rutherford B. Hayes, removed the remaining federal soldiers from the military districts and the southern states were once again free to resume their traditional state functions. Once the soldiers were gone, however, southern Democrats started mistreating the black people again with no fear of punishment because there were no soldiers to enforce the new laws, including the Civil Rights Act of 1866 and the civil rights amendments.  As Republican influence was waning in the former confederacy, there was little political protection for the emancipated blacks from the Republican Party. It would only get worse in the years following the end of martial law.

The period that followed Reconstruction was known as “Redemption.”  Redeemers were part of the Southern Democrats who sought to oust the Republican coalition of freedmen, carpetbaggers, and scalawags and “redeem” the states from the Republicans back to the Democrats.  Redemption would be complete before the election of 1880.

It wasn’t until 1876 that the Southern Democrats were finally able to regain state political control. And it occurred thanks to the efforts of the Ku Klux Klan and other more formal paramilitary (terrorist/intimidation) groups affiliated with the Democratic Party, such as the White League and the Red Shirts.  And it most specifically occurred thanks to the fraud and controversy which surrounded the 1876 election between Republican presidential candidate Rutherford B. Hayes and Democrat Samuel J. Tilden.  By 1876, only 3 states – Louisiana, South Carolina, and Florida – were not yet “redeemed.”  The election ended up with 20 disputed electoral votes.  On election night, as the votes were counted and the results circulated about the country by telegraph, it was clear that Tilden had won the popular vote.  His final popular vote tally would be 4,288,546. The total popular vote for Hayes was 4,034,311. But the election was deadlocked. Tilden had 184 electoral votes, one vote short of the required majority. Four states – Oregon, South Carolina, Louisiana, and Florida – had disputed elections, and those states held 20 electoral votes.

A special commission, the Electoral Commission, was established by Congress to resolve those votes. There were 15 members – 7 members from the Democratic House, 7 members from the Republican Senate, and one member from the Supreme Court (who turned out to be a Republican). The commission voted along strict partisan lines to award all the disputed voted to Hayes, making him the winner by an electoral count of 185-184.  Infuriated Democrats threatened to contest the election results until a deal was struck with Republicans. The Democrats would agree to support the commission’s finding in exchange for removing federal troops from the South, naming a Southerner to the Hayes’ cabinet, and allocating federal aid to the South.  The Democratic Party regained power in South Carolina in 1877 and other states quickly followed.  Thus was the quick rise and fall of the Republican Party in the South.

The 1880′s began the period known as the Jim Crow era.  This was the era where democratic state legislatures attempted to roll back the advances on behalf of freed slaves and other blacks by the Republicans. It was during this time that democratic state legislatures disfranchised most blacks and many poor whites through a combination of state constitutional amendments and electoral laws. They segregated blacks from white society and plantation owners found new ways to bind their former slaves as miserably-paid workers through sharecropping and other contractual arrangements. For all intents and purposes, many blacks found themselves in virtually the same position they had occupied before their emancipation.

In 1896, the Supreme Court heard the case of Plessy v. Ferguson, which addressed a  Louisiana Jim Crow law that segregated rail cars. Homer Plessy, a black man, tried to board a “whites-only” train in Louisiana when the car designated for blacks was full.  Once he boarded, he was forcibly removed and jailed. He sued the state, claiming the Louisiana segregation laws violated both his 13th and 14th Amendment rights. The Supreme Court, by a vote of 8-1, ruled that the 14th Amendment did not include a requirement that the races needed to be co-mingled and therefore upheld the doctrine of “Separate but Equal” when it came to facilities for blacks.  Segregation was justified, providing the facilities and services were essentially equal.  Plessy marked the beginning of a 58-year period where Jim Crow laws were largely unchallenged and condoned by the federal government.  It not only perpetuated the white supremacist beliefs of the time, but also made it possible for states to make and enforce Jim Crow laws with impunity.

As admirable and inspiring as blacks were in the years following their liberation, a stark contrast in human nature was seen by the forces against them. Groups like the KKK and southern democrats behaved shamefully, deplorably, and inhumanely. Blacks began a distinguished, dignified, and long-overdue chapter in their history after the Civil War, but the opposite was true for the groups who acted in opposition to their freedom and to their rapid success. Many southern Democrats despised blacks and Republicans and they utilized every means possible to keep them from voting – including not only the use of devious and cunning means but also the direct use of violence. Here’s the thing. After slavery was abolished, ALL freed slaves and other blacks were Republicans. [In the South, whites were mostly Democratic, but some could be Republican. Southern whites loyal to the antebellum South were mostly Democratic. Whites who sympathized with the North and wanted civil rights for blacks were Republican (scalawags). The worst thing you could be in the Reconstruction era South, and in the years that followed, was a Republican. And the most offensive Republican was a black one.

By 1900, democrats actually began actively to seek a repeal of the 14th and 15th Amendments.  As democratic Senator Ben Tillman from South Carolina explained:  “We made up our minds that the 14th and 15th Amendments to the Constitution were themselves null and void; that the civil rights acts of Congress were null and void; that oaths required by such laws were null and void.”  Prominent democratic leader A. W. Terrell of Texas said that the 15th Amendment guaranteeing black voting rights was “the political blunder of the century.”

Democrats from both the North and the South agreed with Terrell and Tillman, and several asked for a repeal of the  amendments.  Louisiana Senator Samuel McEnery, who was one of those democrats, was confident that the effort would succeed.  He even declared: “I believe that not a single southern Senator would object to such a move.”  Fortunately, the attempt failed.

In 1901, at the same time that democrats were seeking to roll back the civil rights amendments, republican President Teddy Roosevelt infuriated many democrats by inviting Booker T. Washington, a mulatto former slave who went on to become the leader of the Tuskegee Institute, to the White House.  Washington became the first American of African descent to dine with a President at the White House.  He served as an advisor to three republican US presidents – William McKinley, Roosevelt, and William Taft.  Democrat President Woodrow Wilson, however, would not seek his counsel.

In 1915, the pro-Klan movie “Birth of a Nation” by D.W. Griffith was released to help beef up the ranks of the Ku Klux Klan.  It was based on a book called “The Clansman” which was written by an avid racist, Thomas Dixon Jr.  Dixon’s text incorporated some material from Woodrow Wilson’s book, “History of the American People” – particularly the part portraying the Ku Klux Klan in a sympathetic light.  For example, it includes this piece from Wilson’s book: “The white men were roused by a mere instinct of self-preservation until at last there had spring into existence a great Ku Klux Klan, a veritable empire of the South, to protect the Southern country.”  This section also made it into Griffith’s movie.  Democratic president Woodrow Wilson (1913-1921) held a private showing of this racist Klan-recruiting film at the White House.  It was the first film to ever be shown at the White House.  How racist was this film?  It would become a major recruiting tool.  It would be so successful that it helped the Klan to reach its peak membership of almost two million. Could the success in recruitment stem, perhaps, from an endorsement of the film from the highest office in the land?

President Woodrow Wilson was the first southerner to be elected to the White House since 1844 and only the second Democrat to be elected since Reconstruction. While he is respected as a scholar (serving as president of Princeton University) and viewed as a man of peace, especially in the public school system (he presented his “Fourteen Points of Peace” to Congress for establishing a lasting peace in Europe after WWI and wanted so badly to establish his particular version of a League of Nations), he was also regarded as an outright racist and a white supremacist. There is certainly an abundance of historical documentation to support this statement. While serving as the president of Princeton, Wilson discouraged black from applying to the university.  And then when he served as Governor of New Jersey, he refused to confirm the hiring of blacks in his administration. As Wilson was known to say: “Segregation is not humiliating; it’s a benefit!” As historians explain, he was a product of the pre- and post-war South and was brought up under the assumption at the time that the black race was inferior to the Saxon people. He was also bitter over the forced policies of Reconstruction on the southern states.  He feared what might arise from a South “ruled by an ignorant and inferior race.”  Ironically, in the election of 1912, “an unprecedented number” of blacks left the Republican Party to cast their vote for Wilson, a Democrat because they were encouraged by his promises of support for minorities.

But once he took office however, he acted contrary to his campaign promises. Black leaders quickly noticed that he put segregationist white southern democrats in charge of many executive departments.  He fired most of the blacks who held appointed posts within the federal government, and then permitted his segregationist cabinet appointees to establish official segregation policies in the Post Office, Treasury, and Navy, which until that time had been desegregated.  (Many of these would remain segregated clear into the Truman administration, in the 1940’s). Suddenly, under his authority, photographs were required of all applicants for federal jobs and new facilities were designed to keep the races working there separated (including separate toilets and lunch rooms).  And then the democrat-controlled House proposed passed a bill making it a felony for any black person to marry a white person in Washington DC.

In the early 20th century, African-Americans needed a President to offer them hope.  In many parts of the country, mostly in the South however, whites made them feel inferior.  State laws enshrined a presumption of inferiority. And the Supreme Court had upheld those laws, thereby allowing the perpetuation of such laws and establishing cruel stereotypes.  In the early 1860’s, Abraham Lincoln was one such president who offered hope.  In a time when it wasn’t necessarily acceptable, he formed a strong friendship with a man of color – Frederick Douglass, a freed slave.  Douglass was welcome at the White House and was often there to speak with the President.  The mutual affection the men had for each other inspired Douglass to write these words in his memoirs after Lincoln was assassinated: “I have often said elsewhere what I wish to repeat here, that Mr. Lincoln was not only a great president, but a great man — too great to be small in anything. In his company I was never in any way reminded of my humble origin, or of my unpopular color.”

But Woodrow Wilson would not be that kind of president.  His government policies would remind black Americans of their humble origin and of their unpopular color.  It would remind them of the low expectations that the country still had of them.  Robert Kennedy once spoke most eloquently about the importance of standing up for the rights of others. “Each time a man stands up for an ideal, or acts to improve the lot of others, or strikes out against injustice, he sends forth a tiny ripple of hope… and crossing each other from a million different centers of energy and daring those ripples build a current that can sweep down the mightiest walls of oppression and resistance.”

The Jim Crow effectively ended in 1954 when the Supreme Court struck down school segregation in the Brown v. Board of Education case.  The case addressed de jure(legislative) segregation in public schools.  Segregation was permissible at the time, supported by the Plessy standard – “separate-but-equal.” As long as facilities were fairly equal, the Supreme Court did not interpret the 14th Amendment to require a physical mixing of the races. With Plessy v. Ferguson, the Supreme Court kept the spirit of Jim Crow alive by proclaiming from the highest legal tribunal that segregation was permissible under the 14th Amendment’s notion of Equal Protection of the laws.  But after looking at the particular case of public school segregation, Chief Justice Earl Warren, who delivered the Court’s opinion, declared that the doctrine of “separate-but-equal” doctrine of Plessy had no place in public education. It was a personal opinion that he held strongly and which he apparently withheld during his Senate confirmation for the high court.  He was appointed to the Supreme Court in 1953 by President Harry Truman just in time for oral arguments in the Brown case.  As soon as the Senate confirmed him, he told his colleagues on the bench that he believed racial segregation violated the Constitution and that only if one considered African Americans inferior to whites could the practice be upheld.

Chief Justice Earl Warren was a Republican. In fact, he ran as a Republican for the seat of Governor of California, which he won. He served three terms. 

Brown v. Board of Education, 347 U.S. 483 (1954), was a landmark United States Supreme Court case in which the Court declared state laws establishing separate public schools for black and white students unconstitutional. The decision overturned the Plessy v. Ferguson decision of 1896 which allowed state-sponsored segregation. Handed down on May 17, 1954, the Warren Court’s unanimous (9–0) decision stated that “separate educational facilities are inherently unequal.” As a result, de jure racial segregation was ruled a violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. This ruling paved the way for integration and was a major victory of the civil rights movement.  It is said that the case was decided by the results of a “doll test.”

The doll test at the heart of the Brown decision was designed by Mamie and Kenneth Clark, African-American (husband and wife) psychologists, to study the effects of segregation and racism on the self-esteem of black children.  In the test, black children were put in a room with two types of dolls – a white doll with blonde hair and a brown doll with black hair – and then observed to see which dolls they preferred to play with. The children were then asked questions inquiring as to which doll is the nice doll, which one looks bad, which one has the nicer color, etc.  (Mamie used a similar test as the basis of her master’s thesis).  All the black children preferred the white dolls.  The findings of the Clarks’ doll test were submitted to the Supreme Court as evidence of the negative impact of segregation on the mental and psychological status of black schoolchildren. The Clarks concluded that the children felt the impact of segregation and felt a sense of inferiority.

The key holding of the Court was that, even if segregated black and white schools were of equal quality in facilities and teachers, segregation by itself was harmful to black students and unconstitutional. They found that a significant psychological and social disadvantage was given to black children from the nature of segregation itself (drawing on the “doll study” research). This aspect was vital because the question was not whether the schools were “equal,” which under the Plessy standard, they should have been, but whether the doctrine of “separate-but-equal” was constitutional with respect to public education. The justices answered with a strong “no.”  Chief Justice Warren wrote:

Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other “tangible” factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does… Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law, for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racially integrated school system… We conclude that, in the field of public education, the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.”

The decision did not sit well with Southern Democrats.  After 90 years, they still weren’t willing to allow blacks to “sit at the same table” with whites.

In a campaign known as “Massive Resistance,” Southern white legislators and school boards enacted laws and policies to evade or defy the U.S. Supreme Court’s Brown ruling and its mandate to desegregate schools “with all deliberate speed.”  [Brown v. Board of Education II (1955), where the Supreme Court specifically addressed the relief that would be appropriate in light of the 1954 Brown decision].  In 1956, nearly every congressman in the Deep South – 101 in all (out of the 128 total in the region) – signed a document entitled the “Southern Manifesto,” drafted by Senator Strom Thurmond, to repudiate the decision.  19 Senators and 77 members of the US House from the southern states signed it.  Of all the 101 southern legislators who signed the document, all were Southern Democrats – except two congressman from Virginia who were Republicans. The Southern Manifesto said the Brown decision not only represented “a clear abuse of judicial power,” but it was an unconstitutional interpretation. It argued that the Constitution does not grant the government the power to legislate in the area of education and it has no power to force states to integrate their schools. Furthermore, the signers urged their state officials to resist implementing the Court’s mandates.

Two years later, in response to the Southern Manifesto and in response to southern opposition in general, the Supreme Court revisited the Brown decision in Cooper v. Aaron(1958), asserting that the states were bound by the ruling and affirming that its interpretation of the Constitution was the “supreme law of the land.”

The Southern Manifesto on Integration (of March 12, 1956) read:

      The unwarranted decision of the Supreme Court in the public school cases is now bearing the fruit always produced when men substitute naked power for established law.

     The Founding Fathers gave us a Constitution of checks and balances because they realized the inescapable lesson of history that no man or group of men can be safely entrusted with unlimited power. They framed this Constitution with its provisions for change by amendment in order to secure the fundamentals of government against the dangers of temporary popular passion or the personal predilections of public officeholders. 

     We regard the decision of the Supreme Court in the school cases as clear abuse of judicial power. It climaxes a trend in the Federal judiciary undertaking to legislate, in derogation of the authority of Congress, and to encroach upon the reserved rights of the states and the people. 

     The original Constitution does not mention education. Neither does the Fourteenth Amendment nor any other amendment. The debates preceding the submission of the Fourteenth Amendment clearly show that there was no intent that it should affect the systems of education maintained by the states. 

     The very Congress which proposed the amendment subsequently provided for segregated schools in the District of Columbia. 

     When the amendment was adopted in 1868, there were thirty-seven states of the Union. Every one of the twenty-six states that had any substantial racial differences among its people either approved the operation of segregated schools already in existence or subsequently established such schools by action of the same law-making body which considered the Fourteenth Amendment. 

     As admitted by the Supreme Court in the public school case (Brown v. Board of Education), the doctrine of separate but equal schools “apparently originated in Roberts v. City of Boston (1849), upholding school segregation against attack as being violative of a state constitutional guarantee of equality.” This constitutional doctrine began in the North – not in the South – and it was followed not only in Massachusetts but in Connecticut, New York, Illinois, Indiana, Michigan, Minnesota, New Jersey, Ohio, Pennsylvania and other northern states until they, exercising their rights as states through the constitutional processes of local self-government, changed their school systems. 

      In the case of Plessy v. Ferguson in 1896 the Supreme Court expressly declared that under the Fourteenth Amendment no person was denied any of his rights if the states provided separate but equal public facilities. This decision has been followed in many other cases. It is notable that the Supreme Court, speaking through Chief Justice Taft, a former President of the United States, unanimously declared in 1927 in Lum v. Rice that the “separate but equal” principle is “within the discretion of the state in regulating its public schools and does not conflict with the Fourteenth Amendment.” 

     This interpretation, restated time and again, became a part of the life of the people of many of the states and confirmed their habits, customs, traditions and way of life. It is founded on elemental humanity and common sense, for parents should not be deprived by Government of the right to direct the lives and education of their own children. 

     Though there has been no constitutional amendment or act of Congress changing this established legal principle almost a century old, the Supreme Court of the United States, with no legal basis for such action, undertook to exercise their naked judicial power and substituted their personal political and social ideas for the established law of the land. 

     This unwarranted exercise of power by the court, contrary to the Constitution, is creating chaos and confusion in the states principally affected. It is destroying the amicable relations between the white and Negro races that have been created through ninety years of patient effort by the good people of both races. It has planted hatred and suspicion where there has been heretofore friendship and understanding. 

      Without regard to the consent of the governed, outside agitators are threatening immediate and revolutionary changes in our public school systems. If done, this is certain to destroy the system of public education in some of the states. 

     With the gravest concern for the explosive and dangerous condition created by this decision and inflamed by outside meddlers. 

     We reaffirm our reliance on the Constitution as the fundamental law of the land. 

     We decry the Supreme Court’s encroachments on rights reserved to the states and to the people, contrary to established law and to the Constitution.

     We commend the motives of those states which have declared the intention to resist forced integration by any lawful means. 

     We appeal to the states and people who are not directly affected by these decisions to consider the constitutional principles involved against the time when they too, on issues vital to them, may be the victims of judicial encroachment. 

     Even though we constitute a minority in the present congress, we have full faith that a majority of the American people believe in the dual system of government which has enabled us to achieve our greatness and will in time demand that the reserved rights of the states and of the people be made secure against judicial usurpation. 

     We pledge ourselves to use all lawful means to bring about a reversal of this decision which is contrary to the Constitution and to prevent the use of force in its implementation. 

     In this trying period, as we all seek to right this wrong, we appeal to our people not to be provoked by the agitators and troublemakers invading our states and to scrupulously refrain from disorder and lawless acts.

Signed by:

Members of the United States Senate:
Alabama:  John Sparkman and Lister Hill.
Arkansas:  J. W. Fulbright and John L. McClellan.
Florida:  George A. Smathers and Spessard L. Holland.
Georgia:  Walter F. George and Richard B. Russell.
Louisiana:  Allen J. Ellender and Russell B. Lono.
Mississippi:  John Stennis and James O. Eastland.
North Carolina:  Sam J. Ervin Jr. and W. Kerr Scott.
South Carolina:  Strom Thurmond and Olin D. Johnston.
Texas:  Price Daniel.
Virginia:  Harry F. Bird and A. Willis Robertson.

Members of the United States House of Representatives:
Alabama:  Frank J. Boykin, George M. Grant, George M. Andrews, Kenneth R. Roberts, Albert Rains, Armistead I. Selden Jr., Carl Elliott, Robert E. Jones and George Huddleston Jr.
Arkansas:  E. C. Gathings, Wilbur D. Mills, James W. Trimble, Oren Harris, Brooks Hays, F. W. Norrell.
Florida:  Charles E. Bennett Robert L. Sikes, A. S. Her Jr., Paul G. Rogers, James A. Haley, D. R. Matthews.
Georgia:  Prince H. Preston, John L. Pilcher, E. L. Forrester, John James Flint Jr., James C. Davis, Carl Vinson, Henderson Lanham, Iris F. Blitch, Phil M. Landrum, Paul Brown.
Louisiana:  F. Edward Hebert, Hale Boggs, Edwin E. Willis, Overton Brooks, Otto E. Passman, James H. Morrison, T. Ashton Thompson, George S. Long.
Mississippi:  Thomas G. Abernethy, Jamie L. Whitten, Frank E. Smith, John Bell Williams, Arthur Winsted, William M. Colmer.
North Carolina:  Herbert C. Bonner, L. H. Fountain, Graham A. Barden, Carl T. Durham, F. Ertel Carlyle, Hugh Q. Alexander, Woodrow W. Jones, George A. Shuford.
South Carolina:  L. Mendel Rivers, John J. Riley, W. J. Bryan Dorn, Robert T. Ashmore, James P. Richards, John L. McMillan.
Tennessee:  James B. Frazier Jr., Tom Murray, Jere Cooper, Clifford Davis.
Texas:  Wright Patman, John Dowdy, Walter Rogers, O. C. Fisher.
Virginia:  Edward J. Robeson Jr., Porter Hardy Jr., J. Vaughan Gary, Watkins M. Abbitt, William M. Tuck, Richard H. Poff, Burr P. Harrison, Howard W. Smith, W. Pat Jennings, Joel T. Broyhill.

[From Congressional Record, 84th Congress Second Session. Vol. 102, part 4. Washington, D.C.: Governmental Printing Office, 1956. 4459-4460]

***  Joel Broyhill and Richard Poff of Virginia were the only Republicans to sign the Southern Manifesto.  All the others were Southern Democrats

It was not unexpected that Strom Thurmond would draft something like the “Southern Manifesto.”  In 1948, after serving as Governor of South Carolina, he ran for President. But he didn’t run as any ordinary Democrat.  He ran as a Dixiecrat, which was an extremist wing of the Democratic Party – also known as the States’ Rights Democratic Party.  In 1948, the Dixiecrats issued their nine-point platform.  Points four through six read as follows:

(4)  We stand for the segregation of the races and the racial integrity of each race; the constitutional right to choose one’s associates; to accept private employment without governmental interference, and to earn one’s living in any lawful way. We oppose the elimination of segregation, the repeal of miscegenation statutes, the control of private employment by Federal bureaucrats called for by the misnamed civil rights program. We favor home-rule, local self-government and a minimum interference with individual rights.

(5)  We oppose and condemn the action of the Democratic Convention in sponsoring a civil rights program calling for the elimination of segregation, social equality by Federal fiat, regulations of private employment practices, voting and local law enforcement.

(6)  We affirm that the effective enforcement of such a program would be utterly destructive to the social, economic and political life of the Southern people, and of other localities in which there may be differences in race, creed or national origin in appreciable numbers.

As a presidential candidate, Thurmond said: “All the laws of Washington and all the bayonets of the Army cannot force the nigger into our homes, our schools, our churches.”  He lost the election but carried four of the states from the deep South (Louisiana, Mississippi, South Carolina, and Alabama).  In 1954, he was elected to the US Senate, as the only successful write-in candidate. And thus began his infamous career in Washington DC.

Fast-forward to the year 1963.

On August 23, 1963, civil rights organizers held a massive march on Washington DC, calling for legislative action to end discrimination. Set on the steps of the Lincoln Memorial and broadcast to a television audience, Dr. Martin Luther King Jr. would deliver a stunningly eloquent speech that helped advance the cause of civil rights and define a standard of civility.  He spoke the timeless words “I have a dream that my four children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.”  This was the Dream.

He invoked powerful imagery:

We have come to our nation’s capital to cash a check. When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir. This note was a promise that all men, yes, black men as well as white men, would be guaranteed the unalienable rights of Life, Liberty, and the Pursuit of Happiness.

      It is obvious today that America has defaulted on this promissory note insofar as her citizens of color are concerned. Instead of honoring this sacred obligation, America has given the Negro people a bad check, a check which has come back marked “insufficient funds.” But we refuse to believe that the bank of justice is bankrupt. We refuse to believe that there are insufficient funds in the great vaults of opportunity of this nation. So we have come to cash this check — a check that will give us upon demand the riches of freedom and the security of justice…..

       Let us not wallow in the valley of despair.  I say to you today, my friends, so even though we face the difficulties of today and tomorrow, I still have a dream. It is a dream deeply rooted in the American dream. I have a dream that one day this nation will rise up and live out the true meaning of its creed: “We hold these truths to be self-evident: that all men are created equal.”

Dr. King was a Republican. He believed in the “opportunity” afforded Americans under the Declaration of Independence – the “equal” opportunity.  He talked about Natural Rights… Inalienable Rights.  He didn’t preach about equal outcomes or equal things.  He didn’t preach about dependency on government or a political party.  He preached about accomplishment…  the intangible qualities of character and dignity and the tangible ones of education and success.  He preached about a colorless society; one that is based on the dignity of every human being and the notion of common brotherhood.  ”I have a dream that one day on the red hills of Georgia the sons of former slaves and the sons of former slave owners will be able to sit down together at the table of brotherhood.”

Author Zora Neale Hurston once wrote: “I am not tragically colored.  There is no great sorrow dammed up in my soul, nor lurking behind my eyes…. Even in the helter-skelter skirmish that is my life, I have seen that the world is to the strong regardless of a little pigmentation more or less.  No, I do not weep at the world – I am too busy sharpening my oyster knife.”   (1928)

The 1960′s was the era of the great Civil Rights movement.  It was John F. Kennedy who originally pushed for Civil Rights legislation, after the 1963 summer of racial violence. But he knew he didn’t have the support he needed in the House. The House was controlled by Democrats.  As was the Senate. He was hopeful, however, when meetings with Senate Republicans showed that he had firm support among them.  But just two days after the House announced the bill would be heard, Kennedy was assassinated. LBJ asserted he would continue the support for Civil Rights legislation.

But in 1964, the legislation would never have passed without Republican support.  In the US House, 78% of Republicans supported while only 58% of Democrats did.  In the Senate, Democrats showed even less support.  In fact, the ‘Southern-bloc’ of the Senate Democrats – 18 of them – launched a 57-day filibuster which they intended would prevent the Senate from passing the bill. They boldly declared: “We will resist to the bitter end any measure or any movement which would have a tendency to bring about social equality and intermingling and amalgamation of the races in our (Southern) states.”   Democratic Senator Strom Thurmond (of South Carolina) said: “These Civil Rights Proposals, which the President has sent to Capitol Hill for enactment into law, are unconstitutional, unnecessary, unwise and extend beyond the realm of reason. This is the worst civil-rights package ever presented to the Congress and is reminiscent of the Reconstruction proposals and actions of the radical Republican Congress.”

On the morning of June 10, 1964, Democratic Senator Robert Byrd (of West Virginia), who entered politics as the “Exalted Cyclops” and recruiter for the Ku Klux Klan, filibustered the Senate for over 14 hours – the second longest filibuster ever in our nation’s history.  As part of this filibuster, he cited a racist study that claimed black people’s brains are statistically smaller than white people’s brains.  Only 17 years earlier, he urged the re-birth of the Klan, claiming that “It is needed like never before.”  [And just before that, in 1945, he wrote:  “Rather I should die a thousand times, and see Old Glory trampled in the dirt never to rise again, than to see this beloved land of ours become degraded by race mongrels, a throwback to the blackest specimen from the wilds.”]  When he died at age 92, Democrats still referred to him as the “Conscience of the Senate.”

You can’t make this stuff up.

Republican Senate Minority Leader, Everett Dirksen (Illinois) condemned the filibuster and offered the final remarks in support of the legislation: “Stronger than all the armies is an idea whose time has come. The time has come for equality of opportunity in sharing in government, in education, and in employment.  It will not be stayed or denied. It is here!”  Republicans then rallied to support a cloture vote – which means a vote to end a filibuster. Never in history had the Senate been able to muster enough votes to cut off a filibuster on a civil rights bill.

The clerk then proceeded to call the roll. When the decisive 67th vote was reached, Senate Republicans cheered and many Democrats slumped over in disgust.  In the end, 80% of Senate Democrats voted ‘nay’ on the legislation and only 20% voted to support it.  Because of his strong support of the bill and his efforts to hold Republicans together and build support for the cloture vote, Senator Dirksen – again, a Republican – is generally seen as the hero of the 1964 Civil Rights Act.

The following year, Senator Dirksen, together with Senate Majority leader Mike Mansfield, introduced the 1965 Voting Rights Act.

How is it possible that we have forgotten so much of our nation’s history?  In an era where so much attention is given to the accomplishments of each political party, how is it that the Republican party continues to get short-changed?

How is it that our nation’s leaders, our media, and especially our school system are not reminding the American people of the proud achievements of Republican leaders and the Republican Party with respect to Human Dignity and Equal Rights?  At what point did these achievements magically impute to the Democrats?  Are African-Americans suffering some sort of selective amnesia regarding their history?  Africanesia?   How is the Democratic Party – the party of slavery, secession, segregation, and now socialism – all of a sudden the party of fairness and equal rights?

Why have African-Americans aligned themselves so tightly and blindly to the Democratic Party – the party which historically has stood for the racist policies of the antebellum South  and the vindictive policies of Redemption and Jim Crow?  In promising African-Americans a new American Dream – one of greater government rights and benefits – rather than the American Dream enshrined in the Declaration of Independence, as Dr. Martin Luther King Jr. often spoke about, is the Democratic Party fulfilling the warning that the Freeman Bureau addressed in its Inquiry Commission of 1865 – that with respect to the amount of government aid to provide, “there is as much danger in doing too much as in doing too little. The risk is serious that, under the guise of guardianship, slavery, in a modified form, may be practically restored. Those who have ceased, only perforce, to be slave-holders, will be sure to unite their efforts to effect just such a purpose.“  Too much aid is the enemy of a free man. It will only “contribute to his virtual re-enslavement.”   

And so I ask this question:  Why have African-Americans abandoned the Republican Party when the Republican Party has never abandoned them?

The Republican Party has never thought them worthy of enslavement, either physically or virtually.

References:

David Barton, “What is Slavery?” and  “The Fugitive Slave Law.”   Referenced at: http://www.davidbarton.biz/page/2/

David Barton, “Civil Rights Acts”  and  “Civil Rights Amendments to the Constitution.  Referenced at:  http://davidbartonushistory.weebly.com/

The Dred Scott decision (1857)  –  http://americancivilwar.com/colored/dred_scott.html  and   http://www.pbs.org/wgbh/aia/part4/4h2933t.html

The 13th Amendment:  Ratification and Results, Harp Week.   Referenced at: http://13thamendment.harpweek.com/HubPages/CommentaryPage.asp?Commentary=05Results

The 14th Amendment: Congressional Passage, Harp Week.   Referenced at: http://14thamendment.harpweek.com/HubPages/CommentaryPage.asp?Commentary=03Passage

Gene Healy, “The Squalid 14th Amendment,” Lew Rockwell, August 1999.  Referenced at:  http://www.lewrockwell.com/orig/healy1.html   [Originally posted in Liberty Magazine]

Southern Manifesto on Integration – http://www.pbs.org/wnet/supremecourt/rights/sources_document2.html

TheLies and Racism of Woodrow Wilson. http://www.worldfuturefund.org/wffmaster/Reading/war.crimes/US/Wilson.htm

Bishop Absalom Jones, “A Thanksgiving Sermon,” Anglican History.  Referenced at: http://anglicanhistory.org/usa/ajones/thanksgiving1808.html    [The “Thanksgiving Sermon” was preached January 1, 1808, in St. Thomas’s, or the African Episcopal, Church, Philadelphia, in recognition of the abolition of the African slave trade, on that day, by the Congress of the United States].

Zora Neale Hurston, “How It Feels to Be Colored Me,” The World Tomorrow, May 1928.  Referenced at:  http://xroads.virginia.edu/~ma01/grand-jean/hurston/chapters/how.html

Joseph E. Fallon, “Power, Legitimacy, and the 14th Amendment.”  Referenced at:  http://southernloyalists.tripod.com/id18.html

“George Mason’s Views on Slavery,” Gunston Hall.  Referenced at: http://gunstonhall.org/georgemason/slavery/views_on_slavery.html

The Original Intent of the 14th Amendment.   http://www.14thamendment.us/index.html

Alex Knepper, “Remembering Byrd’s Racism,”  Frum Forum, June 29, 2010.  Referenced at:  http://www.frumforum.com/remembering-robert-byrds-racism/

Frances Rice, “KKK Terrorist Arm of the Democratic Party,”  National Black Republican Association.  Referenced at:  http://www.nationalblackrepublicans.com/index.cfm?fuseaction=pages.DYKKKKTerroristArmoftheDemocratParty&page_id=93

Dr. Eric Foner, A Short History of Reconstruction; Harper & Row Publishers, Inc., 1990.   [Dr. Foner is the DeWitt Clinton Professor of History at Columbia University].

Our Nation’s Archives: A History of the United States in Documents (ed. Erik Bruun and Jay Crosby); Black Dog & Leventhal Publishers, 1999.  [pg. 417 and pp. 731-34]

Inquiry Commission Report (for Freedman’s Bureau) –  Preliminary Report  – http://www.civilwarhome.com/prelimcommissionreport.htm

Inquiry Commission Report (for Freedman’s Bureau)  –  On the Topic of Slavery  – http://www.civilwarhome.com/commisionreportchapt1.htm

Inquiry Commission Report (for Freedman’s Bureau) –  On the Topic of Emancipation – http://www.civilwarhome.com/commissionreportchapt2.htm

Inquiry Commission Report (for Freedman’s Bureau) –  Conclusion: “The Future in the US of the African Race” http://www.civilwarhome.com/commissionreportchapt3.htm

Nathan Bedford Forrest –  http://www.freeinfosociety.com/article.php?id=184     [“The Cause for which you have so long and so manfully struggled, and for which you have braved dangers, endured privations, and sufferings, and made so many sacrifices, is today hopeless. The government which we sought to establish and perpetuate, is at an end. Reason dictates and humanity demands that no more blood be shed. Fully realizing and feeling that such is the case, it is your duty and mine to lay down our arms — submit to the “powers that be” — and to aid in restoring peace and establishing law and order throughout the land.”]

NOTES:

[1]  North Carolina’s ban on the slave trade at the time of the Philadelphia Convention was not an express ban.  “Maryland and Virginia he said had already prohibited the importation of slaves expressly. North Carolina had done the same in substance.”

See James Madison’s Notes on the Constitutional Convention:http://www.constitution.org/dfc/dfc_0525.htm  or  http://avalon.law.yale.edu/18th_century/debates_514525.asp  (the Avalon Project)

Specifically, the Slavery debate:http://www.academicamerican.com/revolution/documents/ConstDebate.html

[2]  The Federalist Party was the party of most of our Founding Fathers and Jefferson’s Democratic-Republican Party would go on to give birth to the Democratic Party, although elements of the platform ultimately made it into the Republican Party as well, such as the requirement for strict interpretation of the Constitution and limited government.

[3]  The Republican Platform was announced in Philadelphia in 1856 – http://www.ushistory.org/gop/convention_1856republicanplatform.htm

[4]  It is argued that the 14th Amendment was never properly ratified.

Before an amendment can be ratified, it must first be proposed. The Constitution provides two methods of proposing an amendment: (i) An amendment can be proposed by 2/3 of the states;  or (ii) It can be proposed by 2/3 of both houses of Congress. The method was used in the case of the 14th Amendment was the latter – the congressional method.  Section V of the Constitution addresses the amendment process and explains that “no state without its consent, shall be deprived of its equal suffrage in the Senate.”  When Congress proposed the amendment in 1866, twenty-three Senators were unlawfully excluded from the U. S. Senate in order for the republicans to secure a 2/3 vote for the adoption of proposed amendment. Those excluded included both senators from each of the eleven southern states and one Senator from New Jersey. This alone is sufficient to invalidate the so-called fourteenth because it was never properly proposed.).

Furthermore, history records that Tennessee was the first state to ratify the 14th Amendment – on July 24, 1866.  But did Tennessee improperly ratify it?  The Tennessee legislature was not in session when the proposed amendment was sent, so a special session of the legislature had to be called. The Tennessee Senate ratified the proposed amendment. However, the Tennessee House could not assemble a quorum as required in order to legally act. Finally, after several days and “considerable effort, two of the recalcitrant members were arrested and brought into a committee room opening into the Chamber of the House. They refused to vote when their names were called, whereupon the Speaker ruled that there was no quorum. His decision, however, was overruled, and the amendment was declared ratified on July 19, 1866, by a vote of 43 to 11, the two members under arrest in the adjoining committee room not voting.”