Introduction to the Civil War Amendments

Tonight at 6:30 in Temecula the Constitution Class will begin its study of Amendments 13, 14, and 15 – The Civil War Amendments.  Meet us at Faith Armory, 41669 Winchester Road, Suite 101 in the classroom at the left-rear of the store.

We’ll see you there!

Lesson 11

The Civil War

11.1 – The End of Slavery

Prior to the Civil War, any federal slavery related legislation dealt with the importation of slaves, or to reinforcing that the aspects of slavery inside State lines was 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.

Though there were a few proposals to abolish slavery throughout the entire United States, the vote of the Southern States, and the fear of the federal government compromising State’s rights, kept any such proposals from ever gaining any traction.

A proposed amendment 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.

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.

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).

11.2 – Citizenship, Civil Rights, and Apportionment

The Fourteenth Amendment to the United States Constitution failed in 1866 after the Southern States rejected the proposed amendment, but after a second attempt was adopted on July 9, 1868.  The ratification of the Fourteenth 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 Fourteenth 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 Fourteenth Amendment is known as “The Citizenship Clause.”  The clause was intended to ensure that 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 that “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 regarding 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 Fourteenth 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, after hostilities ended 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 (the 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.”

Exact quotes:

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 first 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.”

He 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 Fourteenth 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 reads:

“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:

“Mr. HOWARD: 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.).

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,” which were 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 Fourteenth 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.

The Equal Protection clause has been interpreted by the courts to mean that the Bill of Rights applies to the States.  Though all person’s rights are supposed to be protected from a potentially tyrannical federal government, because of the mistreatment of the former slaves by the Southern States, this clause has been also interpreted to mean that the Bill of Rights is applicable to the States.. This is called the “Incorporation of the Bill of Rights.”  This process has been solely conducted by the courts.

Clarification and enforcement led to the passage of the Civil Rights Act of 1866.  Failure of the States to fully follow the intent of this amendment eventually led 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.

This is not to downplay the importance of the Equal Protection Clause.  The clause is intended to make sure that everyone is treated equally under the law.  Therefore, when laws, such as the Affordable Care Act (Obamacare) is passed (let’s set aside the unconstitutionality of that law for the sake of argument, if we may), and then exemptions are handed out to members of Congress, and some individuals or corporations, then the Congress is acting in opposition of the Equal Protection Clause.  If the law is intended for some, then it must be intended for all.

Section 2 of the Fourteenth 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 the Southern Democrats worked feverishly to dissuade the blacks from voting.  Section 2 addressed this problem by offering to the Southern States the opportunity to enfranchise black voters , or lose congressional representation.

Section 3 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 denounce their participation in the Confederacy.

Section 4 confirmed the legitimacy of all United States public debt appropriated by the 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.

Terms:

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.

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.

The Civil Rights Act- April 9, 1866, http://www.tedhayes.us/CVR_civil_rights_act_of_1866.htm

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).

12.3 – Voting Rights

The Fifteenth 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 Fifteenth 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 that 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 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, so to appease the South after his close election in the hopes of gaining their support, and soothe the angry Democrats, President Hayes agreed to withdraw the federal troops that 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 would keep 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 Taxes – 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 (2002-02-05). Reconstruction: America’s Unfinished Revolution, 1863-1877. Harper Perennial Modern Classics. pp. 448. ISBN 978-0060937164.

Gillette, W. (1969). The Right to Vote. pp. 71.

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).