Thursday, January 31, 2019
Wednesday, January 30, 2019
Temecula Constitution Class - Civil War Amendments
Temecula Constitution Class
6:00 Wednesdays
GOP HQ
Constitution Class Handout
Instructor: Douglas V. Gibbs
Lesson 18
The Civil War Amendments
13, 14, and 15
The End of
Slavery
Prior to the Civil War, any
federal legislation related to slavery dealt with the importation of
slaves. Aspects of slavery inside State
lines were considered a State issue.
Article I, Section 9, Clause
1 abolished the Atlantic slave trade, and the United States Government
intervened militarily to ensure the law prohibiting the importation of slaves
was enforced. The Framers of the
Constitution believed that in order to ensure the southern States did their
part in ratifying the Constitution, while remaining consistent with the concept
of the federal government only having authority over external issues, and
disputes between the States, they could not abolish slavery nationally through
the articles presented by the Constitution.
A large number of delegates at the federal convention in 1787 desired
the immediate abolition of slavery, but the fear was that the southern States would
not only refuse to ratify the Constitution, but that they would refuse to
remain a part of the union, eventually succumbing to attacks from Florida and
absorbed into the Spanish Empire.
A proposed amendment to
abolish slavery during the American Civil War finally passed the Senate
on April 8, 1864, by a vote of 38 to 6, but the House did not approve it.
When the proposed amendment
was reintroduced by Representative Ashley, President Lincoln took an active
role in working for its passage through the House by ensuring the amendment was
added to the Republican Party platform for the upcoming Presidential
elections. Lincoln’s efforts, combined
with the result of the War Between the States, ensured the House passed
the bill on January 31, 1865, by a vote of 119 to 56.
The 13th Amendment was ratified into law on December
6, 1865.
Terms:
Atlantic
Slave Trade - Started by the Portuguese, but soon dominated by
the English, the Atlantic Slave Trade was the sale and exploitation of African
slaves by Europeans that occurred in and around the Atlantic Ocean from the
15th century to the 19th century.
War
Between the States - The Civil War was fought from 1861 to 1865 after
Seven Southern slave States seceded from the United States, forming the
Confederate States of America. The
"Confederacy" grew to include eleven States. The war was fought between the States that
did not declare secession, known as the "Union" or the
"North", and the Confederate States.
The war found its origin in the concept of State’s Rights, but became
largely regarding the issue of slavery after President Abraham Lincoln
delivered the Emancipation Proclamation.
Over 600,000 Union and Confederate soldiers died, and much of the
South's infrastructure was destroyed.
After the War, Amendments 13, 14, and 15 were proposed and ratified to
abolish slavery in the United States, and to begin the process of protecting
the civil rights of the freed slaves.
Questions
for Discussion:
1. Why wasn’t
slavery abolished at the founding of this nation?
2. Why did the
House of Representatives not originally approve this amendment?
3. How has the
abolition of slavery affected this nation since the ratification of the 13th
Amendment?
Resources:
Congressional
Proposals and Senate Passage Harper Weekly. The
Creation of the 13th Amendment. Retrieved Feb. 15,
2007
Joseph
Andrews, A Guide for Learning and
Teaching The Declaration of
Independence and The U.S. Constitution - Learning from the Original
Texts Using Classical Learning Methods of the Founders; San
Marcos: The Center for Teaching the Constitution (2010).
Citizenship,
Civil Rights, and Apportionment
Citizenship Clause
The 14th Amendment to the
United States Constitution failed in 1866 after the southern States rejected
the proposed amendment. After a second
attempt to ratify the amendment, it was adopted on July 9, 1868. The ratification of the 14th Amendment
occurred after the federal government began to govern the South through a
system of military districts.
Some historians question the validity of the ratification of the 14th
Amendment because it is believed by these historians that the southern States
ratified the amendment under duress, and pressure applied by the northern
governorships in each of the southern States during the early part of the Reconstruction
Period.
The first clause of the 14th
Amendment is known as “The Citizenship Clause.”
The clause was intended to ensure the children of the emancipated
slaves, as well as the newly freed slaves, would be considered citizens without
any room for argument. The clause 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.”
This clause has been
misinterpreted to mean all persons born in the United States are automatically
citizens, which is not the case. The
defining term in this clause that enables the reader to recognize that
citizenship needs more than just being born on American soil reads:
"subject to the jurisdiction, thereof."
To understand the term jurisdiction,
one may go to the debates on the congressional record of the 14th
Amendment. In those debates, and in
articles of that time period written to explain the intent of the language of
the amendment, one finds that “full jurisdiction” was meant to mean “full
allegiance to America.” The intention
was to protect the nation against persons with divided loyalties.
The writers of the 14th
Amendment wished to follow the importance of "full loyalty" as
portrayed by the Founding Fathers. As
far as the founders were concerned, there could be no divided allegiances. They expected citizens to be fully American.
Despite the defeat of the
Confederacy in the American Civil War, the emancipated slaves were not receiving
the rights and privileges of American citizens as they should have been. The former slaves were present in the United
States legally, and because they were here legally they were "subject
to the jurisdiction thereof," but they were still not receiving any
assurance of equal protection under the law.
The Civil Rights Act of 1866
was created in the hopes of correcting the problem. Some of the language in the Civil Rights Act
of 1866 states, "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. ... All persons within the jurisdiction of the
United States shall have the same right in every State and Territory to make
and enforce contracts, to sue, be parties, give evidence, and to the full and
equal benefit of all laws and proceedings for the security of persons and
property as is enjoyed by white citizens, and shall be subject to like
punishment, pains, penalties, taxes, licenses, and exactions of every kind, and
to no other."
The definition of
"persons within the jurisdiction of the United States" in that act
was all persons at the time of its passage, born in the United States,
including all slaves and their offspring, but not having any allegiances to any
foreign government.
Michigan Senator Jacob
Howard, one of two principal authors of Section 1 of the 14th Amendment
(Citizenship Clause), noted that its provision, "subject to the
jurisdiction thereof," excluded American Indians who had tribal nationalities,
and "persons born in the United States who are foreigners, aliens, who
belong to the families of ambassadors or foreign ministers."
Senator Howard’s responses
to questions regarding the language he used in the Citizenship Clause were
recorded in The Congressional Globe, which are the recorded transcripts of the
debates over the 14th Amendment by the 139th Congress:
Mr. HOWARD: “I now move to take up House joint resolution
No. 127.”
The motion was agreed to;
and the Senate, as in Committee of the Whole, resumed the consideration of the
joint resolution (H.R. No. 127) proposing an amendment to the Constitution of
the United States.
“The 1st Amendment is to
section one, declaring that all persons born in the United States and Subject
to the jurisdiction thereof, are citizens of the United States and of the
States wherein they reside. I do not
propose to say anything on that subject except that the question of citizenship
has been 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 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.”
Senator Howard even went out
of his way to indicate that children born on American soil of foreign citizens
are not included.
Clearly, the framers of the
14th Amendment had no intention of freely giving away American citizenship to just
anyone simply because they may have been born on American soil.
The second author of the
Citizenship Clause, Illinois Senator Lyman Trumbull, added that "subject
to the jurisdiction of the United States" meant "not owing allegiance
to anybody else."
The full quote by Senator
Trumbull:
"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 'complete jurisdiction thereof?' Not owing allegiance to anybody else. That is what it means."
Trumbull continues,
"Can you sue a Navajo Indian in court?
Are they in any sense subject to the complete jurisdiction of the United
States? By no means. We make treaties with them, and therefore
they are not subject to our jurisdiction.
If they were, we wouldn't make treaties with them...It is only those
persons who come completely within our jurisdiction, who are subject to our
laws, that we think of making citizens; and there can be no objection to the
proposition that such persons should be citizens."
Senator Howard concurred
with what Mr. Trumbull had to say:
"I concur entirely with
the honorable Senator from Illinois [Trumbull], in holding that the word
'jurisdiction,' as here employed, ought to be construed so as to imply a full
and complete jurisdiction on the part of the United States, whether exercised
by Congress, by the executive, or by the judicial department; that is to say,
the same jurisdiction in extent and quality as applies to every citizen of the
United States now."
Based on these explanations
by the writers of the clause, then, it is understood that the intention was for
those who are not born to American citizens to have no birthright to
citizenship just because they simply were born inside the borders of this
country.
The courts have interpreted
the Citizenship Clause to mean other things, but we must remember that the
Constitution cannot be changed by the courts.
Changes to the Constitution can only be made by amendment (Article V.).
It was through the
progressive actions of the Lincoln administration in the American Civil War,
and the actions of the courts to incorporate the Bill of Rights to the States,
that America ceased to be “The United
States Are,” and became a more nationalistic “The United States Is.”
Privileges and Immunities Clause
The next clause, “No
State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States,” was expected to protect the
newly emancipated slaves from local legislation that may treat them
differently. This clause was a direct
response to the Black Codes, laws passed in the States that were
designed to limit the former slaves from obtaining all of the freedoms they
thought they had been guaranteed.
The Due Process Clause of
the 14th Amendment prohibits state and local governments from depriving persons
of the proper due process of law. The
right to a fair trial was to be extended to all persons, including the emancipated
slaves.
Due Process Clause and Equal Protection Clause
The Due Process Clause, and
the Equal Protection clause, have been the subject of debate since the language
written by Congressman John Bingham, the principal author of the later part of
Section 1 of the 14th Amendment, was first penned. Bingham believed the federal government
should use all national tools available to ensure the southern States behaved
as instructed. Bingham repeatedly stated
his belief that the Fourteenth Amendment would enforce the Bill of Rights
against the States, but the majority of the members of Congress present did not
concur with his muddled and inconsistent argument.
Author Raoul Berger, in his
book Government by Judiciary,
discussed whether the 14th Amendment should be construed to enforce the Bill of
Rights against the States. Relying on
the analysis of Professor Charles Fairman in his published article, Does the Fourteenth Amendment Incorporate
the Bill of Rights?, Berger concluded that Bingham was a
"muddled" thinker whose views should be discounted. Berger agreed with Fairman that the framers
of the 14th Amendment did not intend it to enforce the Bill of Rights against
the States. Berger rejected even
selective incorporation, arguing that the Amendment's framers did not intend
that any of the first eight amendments should be made applicable to the States
through the 14th Amendment
Antislavery activists
largely supported Bingham’s conclusion that that Bill of Rights must be applied
to the States, and such application must be enforced by the federal government. Though the Bill of Rights was originally
intended by the Founding Fathers not to apply to the States, and with less than
a centuryt since the American Revolution and the writing of the Constitution
behind them, Bingham’s supporters contended that local jurisdiction over cases
regarding an individual’s rights could no longer be allowed because the
southern States could not be trusted to be fair to the newly emancipated
slaves.
Bingham’s call for an incorporation
of the Bill of Rights to the States established the concept that all people’s
rights are supposed to be protected by the federal government. The Founding Fathers did not apply the Bill
of Rights to the States from the beginning because giving that kind of power to
a potentially tyrannical federal government carries with it many pitfalls. As the quote by Gerald Ford goes, “A
government big enough to give you everything you want is a government big
enough to take from you everything you have.”
Nonetheless, despite the dangers of a central government dictating to
the States regarding their laws regarding individual rights, because of the
mistreatment of the former slaves by the Southern States, the Privileges and
Immunities Clause, the Due Process Clause and the Equal Protection Clause, have
been commonly interpreted to mean that the Bill of Rights is applicable to the
States.
Since the Incorporation
of the Bill of Rights did not take hold as a result of the 14th Amendment,
as the statists that supported Bingham’s position had desired, the federal
courts stepped in and took pursuit.
Pursuing a nationalist agenda, the courts disregarded the original
intent of the Framers of the Constitution, as well as the conclusions of the
Congress regarding the 14th Amendment, and began to selectively incorporate the
Bill of Rights to the States, beginning with the Slaughterhouse Cases just five
years after the ratification of the 14th Amendment in 1868. A five to four vote by the high court
interpreted the Privileges and Immunities Clause as the authority to enforce
The Bill of Rights against the States.
Subsequent cases also used the 14th Amendment as an authority for
incorporation.
The courts, through this
process of incorporating The Bill of Rights to the States, have changed the
Constitution through unconstitutional means, and against original intent. As originally intended, all provisions in the
U.S. Constitution apply to the federal government, unless otherwise noted. The Bill of Rights was originally intended to
apply only to the federal government, and if we are to remain in line with the
original intent of the Founding Fathers, State sovereignty must remain
protected by that original intent.
The attitude of the southern
States, and their refusal to treat the former slaves fairly led to a perceived
need for clarification and enforcement by the federal government, which led to
the passage of the Civil Rights Act of 1866, and eventually to the Civil Rights
Movement of the 1960s.
A separate but equal
doctrine existed for more than fifty years, despite numerous attempts to ensure
blacks enjoyed full rights and privileges of citizenship.
In modern politics, laws
continue to test the limits of the Equal Protection Clause. While the clause was intended to make sure
that everyone is treated equally under the law, politicians supporting the
Affordable Care Act have handed out exemptions to members of Congress, and some
individuals or corporations, allowing those that receive the exemptions to be
treated differently under the law.
Apportionment
Section 2 of the 14th
Amendment altered the rules for the apportioning of Representatives in the
Congress to the States. The enumeration
was changed to include all residents, while also calling for a reduction of a State's
apportionment if it wrongfully denies any adult male's right to vote.
For fear that the former
slaves would support the Republicans, southern Democrats worked feverishly to
dissuade blacks from voting. Section 2
addressed this problem by offering to the southern States the opportunity to
enfranchise black voters, or lose congressional representation.
Consequences of Insurrection
Section 3 of the 14th
Amendment prohibits the election or appointment to any federal or state office
of any person who had held any of certain offices and then engaged in
insurrection, rebellion or treason. A
two-thirds vote by each House of the Congress could override this
limitation. The interest was to ban the
service of any members of the Confederacy that refused to renounce their
participation in the Confederacy.
Public Debt as a Result of the War
Section 4 of the 14th
Amendment confirmed the legitimacy of all United States public debt appropriated by Congress. The clause also indicated that neither the
United States nor any State would pay for the loss of slaves or debts that had
been incurred by the Confederacy. This
clause was to ensure that all States recognized the validity of the debt
appropriated by Congress as a result of the war, while bonds secured by the
Confederacy in order to help finance the South’s part of the war “went beyond
congressional power.”
Political battles over the
debt ceiling in 2011 and 2013 encouraged some politicians to argue that the
“validity of the public debt” clause outlawed a debt ceiling, because placing a
limit on federal spending interferes with the duty of the government to pay
interest on outstanding bonds and to make payments owed to pensioners (such as
Social Security). The clause in the 14th
Amendment addressing the validity of the public debt, however, was never
intended to be a general clause to be used by future administrations, but a
specific clause only addressing the debt accrued as a result of the American
Civil War.
Enforcement
The final clause of the 14th
Amendment authorizes Congress to “enforce, by appropriate legislation, the
provisions of this article.” Federal
intrusion upon the States, however, has been a long-time fear by those that
support the concept of State Sovereignty. The question regarding enforcement was
addressed in the Civil Rights Cases of 1883, where the opinion of the
Supreme Court interpreted Section 5 of the 14th Amendment to mean that
"the legislation which Congress is authorized to adopt in this behalf is
not general legislation upon the rights of the citizen, but corrective
legislation".
In a more recent case, City
of Boerne v. Flores, 1997, the Supreme Court ruled that Congress's
enforcement power according to the last clause of the 14th Amendment is limited
to only enacting legislation as a response to a "congruence and
proportionality" between the injury to a person's 14th Amendment rights
and the means Congress adopted to prevent or remedy that injury.
Court interpretation of the
Constitution can be a dangerous practice, and we must remember that any
interpretation of the Constitution offered by the courts in a ruling are merely
opinions. The final authority regarding
the definitions of Constitutional law resides with the people, through their
States. Any allowance of the courts to
fully define the Constitution at the whims of the judges opens up the
opportunity for the courts to change definitions for ideological purposes,
resulting in a judicial oligarchy, rather than a constitutional republic driven by the consent of the governed, and
the self-evident standards of Natural Law.
Terms:
Black
Codes - Laws put in place in the United States after the Civil War with the
effect of limiting the basic human rights and civil liberties of blacks.
Constitutional
Republic - Government that adheres to the rule or authority of
the principles of a constitution. A
representative government that operates under the rule of law.
Equal
Protection Under the Law - Laws must treat an individual resident or citizen
in the same manner.
Incorporation
of the Bill of Rights - The process through court rulings based on the
interpretation of the 14th Amendment to apply the Bill of Rights to the States.
Jurisdiction - Full
loyalty, a condition in which all foreign allegiances have been released; not
owing allegiance to anybody else.
Military
Districts - Districts created in the seceded states (not
including Tennessee, which had ratified the 14th Amendment and was readmitted
to the Union), headed by a military official empowered to appoint and remove
state officials.
Nationalist - An
advocate of Nationalism.
Natural
Law - Unchanging moral principles regarded as a basis for all human
conduct; observable law relating to natural existence; birthright law.
Original
Intent - Original meaning of the United States Constitution as intended by
the framers during the Federal Convention of 1787, and the subsequent State
Ratification Conventions.
Public
Debt - National debt; the financial obligations of a national government
resulting from deficit spending.
Reconstruction
Period - Period following the American Civil War during which the United
States government began to rebuild the States that had seceded from the Union
to form the Confederacy, lasting from 1865-1877. During Reconstruction, the federal government
proposed a number of plans and committed large amount of resources, to the
readmittance to the union, and the rebuilding, of the defeated Confederate
States.
Separate
But Equal - Various laws designed to undermine the 14th
Amendment requirement that former slaves be treated equally under the law,
contending that the requirement of equality could be met in a manner that kept
the races separate. The result of these
laws was a generally accepted doctrine of segregation throughout The South.
State
Sovereignty - The individual autonomy of the several states;
strong local government was considered the key to freedom; a limited government
is the essence of liberty.
United
States are - These States that are united; a group of sovereign
member States in America voluntarily united into a republic.
United
States is - Nation of the United States containing a number of
States similar to provinces ruled over by a centralized federal government.
Questions
for Discussion:
1. How might
have the governors of the military districts influenced the ratification of the
14th Amendment?
2. Does the
Citizenship Clause have anything to do with Natural Born Citizenship? Why?
3. Why was
Congress concerned with the threat of divided allegiance?
4. Did the 14th
Amendment eliminate laws like the Black Codes, as intended?
5. How is it
that despite the original intent of those that voted for the 14th Amendment
that the Bill of Rights not be applied to the States most of the first ten
amendments have been applied to the States anyway?
6. What pieces
of legislation since the ratification of this amendment have been passed in
order to ensure that the Equal Protection Clause is properly enforced?
Resources:
Congressional
Globe, 39th Congress (1866) pg. 2890: Senator Jacob
Howard States the Intent of
the Fourteenth Amendment Published in the Congressional Record, May 30, 1866.
Civil
Rights Act, The - April 9, 1866,
http://www.tedhayes.us/CVR_civil_rights_act_of_1866.htm
Doris
Kearns Goodwin, Team of Rivals: The
Political Genius of
Abraham
Lincoln; New
York: Simon & Schuster Paperbacks (2005)
Frank
J. Williams, Judging Lincoln;
Carbondale: Southern Illinois University Press (2002)
John
F. Marszalek, Sherman: A Soldier’s
Passion for Order; New York:
Vintage Civil War Library (1993)
Joseph
Andrews, A Guide for Learning and
Teaching The Declaration of
Independence and The U.S. Constitution - Learning from the Original
Texts Using Classical Learning Methods of the Founders; San
Marcos: The Center for Teaching the Constitution (2010).
Thomas
J. DiLorenzo, The Real Lincoln: A New
Look at Abraham
Lincoln,
His Agenda, and an Unnecessary War;
Roseville, California: Prima Publishing, a division of Random House (2002)
William
S. NcFeely, Grant; New York: W.W.
Norton & Company
(1981)
Voting
Rights
The 15th Amendment was
designed to protect the voting rights of all citizens, regardless of race,
color, or if the voter had previously been a slave or indentured servant. As stated in the amendment, this article applies
to both the federal government, and the States.
As the third reconstruction
amendment, the 15th Amendment faced another challenge that was unexpected. In some States the requirements were that all
voters and candidates must be Christians.
As originally written, the amendment would require these States to
change their rules regarding the manner of elections. Realizing the ratification of the amendment
may depend on the support of the States with Christianity requirements
regarding elections, the amendment was revised in a conference committee to
remove any reference to holding office or religion and only prohibited
discrimination based on race, color or previous condition of servitude.
Democrat Party created
militias, like the Ku Klux Klan, continued to try and intimidate black voters
and white Republicans. The federal
government promised support, assuring that black and Republican voters could
both vote, and serve, in confidence.
When an all-white mob in the Battle of Liberty Place attempted to take
over the interracial government of New Orleans, President Ulysses S. Grant sent
in federal troops to restore the elected mayor.
President Rutherford B.
Hayes narrowly won the election in 1876.
To appease the South after his close election, in the hopes of gaining
their support and soothing angry Democrats, President Hayes agreed to withdraw
the federal troops who had been occupying the South since the end of the Civil
War. The hope was that the southern
States were ready to handle their own affairs without a need for any interference
from the North.
In the process, President
Hayes also overlooked rampant fraud and electoral violence in the Deep South,
despite several attempts by Republicans to pass laws protecting the rights of
black voters and to punish intimidation.
Without the restrictions, voting place violence against blacks and
Republicans increased, including instances of murder.
By the 1890s many of the
southern States had enacted voter eligibility laws that included literacy tests
and poll taxes. Since the black population
was normally steeped in poverty, the inability to afford the poll tax kept them from voting in
elections.
It took nearly a century for the promise of the
Fifteenth Amendment to finally take hold.
The ratification of the 24th Amendment in 1964, which eliminated poll
taxes, and the passage of the Voting Rights Act of 1965, served to ensure that
blacks in the South were able to freely register to vote, and vote without any
obstacles.
Terms:
Poll Tax - A tax
levied on people rather than on property, often as a requirement for voting.
Questions
for Discussion:
1. Why was the
wording of the Fifteenth Amendment changed to not include discrimination based
on religion?
2. Why do you
think the Democrat Party played a part in forming the Ku Klux Klan?
3. Why did
President Hayes withdraw federal protections against racial discrimination in
the South?
4. How did poll
taxes enable the Southern Democrats from keeping Blacks from being able to vote
without violating the Constitution?
5. Why do you
think it took nearly a century for the promise of the Fifteenth Amendment to be
realized?
Resources:
Congressional
Globe, 40th Cong., 3d Sess (1869) pg. 1318
Foner,
Eric, Reconstruction: America's
Unfinished
Revolution,
1863-1877; New York: Harper Perennial Modern
Classics (2002)
Gillette,
William, The Right to Vote: Politics and
the Passage of the
Fifteenth
Amendment; Baltimore: John Hopkins Press (1969)
Copyright 2015 Douglas V. Gibbs
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