Okay, so the topic today is reconstruction, which of course refers to the, in effect, the readmission of the southern states after the conclusion of the war and the attempt to revive the Union as it was.
Now, as I indicated last time, Lincoln himself would not have used the term readmission of the states
because he was committed to a philosophical proposition according to which the Union was unbreakable.
So, the Southerners had not in fact seceded.
They may have thought they seceded, but all they really had done was to rebel against the legitimate authority of the Union government.
But, nevertheless, we'll use the word readmission because it's the easiest term. I think it's probably an accurate term and Lincoln, in fact, didn't insist on any uniformity in terminology.
He simply said that, look, the important thing is now that the states are coming back, let's not worry about if they were ever gone in the first place.
So he was a practical man on that matter when push came to shove.
But we're dealing most of the time today with Andrew Johnson, his vice president, because we all know Lincoln was assassinated in 1865.
So most of what we're dealing with is with Johnson.
But the issue arises, what branch of government, the executive or the legislative, should oversee the process of the readmission of the southern states following the conclusion of the war?
and the Constitution does not afford any insight into this matter
because of course nobody at the Constitutional Convention had envisioned anything like this taking place
so there was no provision for it in the Constitution.
So Lincoln took the initiative on his own as the war was going on.
As Union troops would take one place or another,
Lincoln was already thinking in terms of their reintegration into the Union.
And so he advanced a plan for reconstruction that was viewed by some people as being relatively lenient.
It became known popularly as the 10% plan because Lincoln required that 10% of the eligible voters in 1860
had to take an oath of loyalty to the Union.
and that once they had done so, they could begin the process of setting up a government in their state that the United States government would recognize.
Now, it was also understood that these states coming back would have to acknowledge and abide by federal laws pertaining to slavery
and it was understood in addition that high Confederate officials either in government or in the military
would have to get a presidential pardon in order to take part in political life once again.
But Lincoln was not making any demands for reparations and was not radically reorienting Southern social life in any way
other than, obviously, through the radical measure of the abolition of slavery, obviously,
but he was not calling for the redistribution of property from southern slave owners to southern slaves, or any such thing as that.
Now, later, after Lincoln's assassination, Andrew Johnson proposed a reconstruction policy that was roughly similar.
Now, Johnson himself came from a very humble background,
and he'd always sort of resented the Southern planter class
precisely because of his own humble origins.
And so it's not surprising that Johnson added to the list of people
who would require a presidential pardon anybody whose wealth exceeded $20,000.
This was Johnson's way of humiliating the Southern planter class
whom he held responsible for persuading Southerners to go along with secession.
And in a way it was a kind of a, I'm sure it brought him a kind of gleeful satisfaction that here he was this humble man made good become the president and now these rich southerners have to come begging him for pardon. It must have been very satisfying for him.
Now when he was, when he became president in 1865, there was a faction of the Republican Party that was pleased at his accession to the office of president.
That faction is called the Radical Republicans.
The Radicals were those who favored a tougher policy toward the defeated southern states.
The Radicals were a wing of Lincoln's party who was very disappointed with Lincoln's plan.
They believed it was not sufficient to punish the South.
And in particular, the Radicals thought along these lines.
They realized that now that slavery is abolished, the Three-Fifths Clause in the Constitution no longer applies.
There's basically nobody for it to apply to, because it had said that, well, it had strongly implied anyway,
that for every five southern slaves, they would be counted in the census as having been three free white people.
And there were reasons for why they had inserted them to the Constitution.
But now, since there are no slaves, five southern blacks will now be counted as five voters.
So that if you were to do the census now, the South would now be entitled to even more representation in government than it had before.
From the radical point of view, it was unthinkable that a war should be waged for four years against the southern states
and they should emerge from that war with more political influence than they had had in the past.
That was intolerable.
So there was some suggestion that the Radical Republicans were secretly pleased when,
I don't want to say they were pleased at Lincoln's hideous death,
but that they might get somebody more sympathetic to their cause, there's no doubt about that.
Privately they said to themselves that Johnson's a good man, he's going to do what we want,
because Johnson had spent the war years condemning the traitors of the South in no uncertain terms.
It seemed that he was the man they were waiting for.
It should be acknowledged and noted, because it's important for later,
that Johnson did not belong to the Republican Party.
Johnson was a Democrat.
And so we'll see in a moment what difference that makes.
In 1864, he and Lincoln had run together on a kind of a unity platform,
the idea being that we're going to have a Republican and a Democrat on the same ticket
to show how unified the North is.
So Johnson's the Democrat, he's President.
Now the Radical Republicans went to, in effect, an extreme in their views of what the condition
of the Southern states happened to be at the end of the war.
Lincoln's view was that what we need to do is to reestablish the Southern states' proper
position in the Union.
He would use this type of language.
The Radicals would use words like readmission, because from the Radical point of view, the
The southern states were not any longer any part of the Union.
Two famous radical Republicans, Charles Sumner of Massachusetts and Thaddeus Stevens of Pennsylvania,
both used very vivid language to refer to the southern states.
Charles Sumner said that the former Confederate states had committed suicide and Thaddeus
Stevens described them as conquered provinces.
So they are not part of the Union.
We will make them part of the Union when they have jumped through the hoops that we want
them to jump through.
So the radicals were disappointed when they found that Andrew Johnson, when he takes office, was more bark than bite, that his reconstruction plan was still not nearly as harsh or as demanding as the radicals would have preferred.
So they immediately grew disillusioned with Johnson.
Now, we have to understand, therefore, that the radical Republicans are going to insist on a more radical reconstruction policy, and that one of the planks of that policy will be that the freed slaves must be granted the right to vote.
Now, Lincoln had said that he was not necessarily opposed to that, and Johnson had said that he was not necessarily opposed to that, but that it should be introduced gradually.
The radicals wanted it to take place right away, and for some radicals this was no doubt an expression of political idealism and morality.
They believed that this was the moral thing to do, that these long disenfranchised people should be granted the right to vote.
Others were more skeptical of radical motivations, which of course varied.
For example, Connecticut Senator James Dixon said that the purpose of the radicals was the saving of the Republican party
General Sherman commented that the whole idea of giving votes to the Negroes was to create just that many votes to be used by others for political uses.
He expressed his displeasure with a plan whereby in his words politicians may manufacture just so much more pliable electioneering material.
So there was a certain cynicism about radical Republican motivations,
a cynicism that was not reduced by Thaddeus Stevens' famous comment
that the votes of the freed slaves were necessary in order, in his words,
to bring about perpetual ascendancy to the party of the Union,
which means the Republican party should be, in effect, forever the dominant party.
So we have this factor in the background,
and the desire to insert as a part of the reconstruction policy
the granting of the vote to the freed slaves.
The radical concern was that if the vote is not given to the freed slaves,
and this is a pure minus for the North,
because the view would be as follows, that now that there's no more three-fifths clause
and that therefore the southern population in effect,
the southern voting population now is increased,
The concern would be that the southerners wouldn't give the vote to these freed slaves,
but yet they still would be counted to determine how many congressmen they would get.
So the radical point of view was if you're going to count them in order to
decide how many congressmen you get, then you have to give them the vote as well.
And of course, as I say, the vote, it was assumed, would solidify the domination of the Republican Party.
By 1866 the radicals were beginning to really make their voices heard and by 1867 they were really in control of the reconstruction process.
They really seized it from the hands of the executive. 1866 was sort of a watershed year because that was an off-year election
in which the Radical Republicans enjoyed major gains in Congress
such that they could in fact override presidential vetoes of their Reconstruction Plan.
Now the Radical Reconstruction Plan, which we get to in just a minute,
which was much harsher than Lincoln's or Johnson's,
was predicated on the idea, at least in part,
that the southern states could not be trusted in effect to govern themselves
because they would carry on the oppression of blacks, southern blacks
and it was believed that discriminatory legislation against them
would be passed, and in fact was passed, and that therefore
the only way out of this was some kind of
a federal oversight over the states to ensure that such discrimination
did not occur. Well, the southern states
The southern states did in fact introduce what became known as black codes, which in various ways curtailed the liberty of blacks in terms of the freedom to enter into contracts and to move across the state freely and in other ways as well.
And immediately the radicals complained that the southern states were simply perpetuating slavery in another form.
Now I've noted, and I've generated some controversy over this,
I don't think there's anything controversial about it,
that these southern black codes were in fact modeled on northern vagrancy laws.
There's plenty of contemporary evidence to this effect.
That in fact, and I quote a historian from earlier in the 20th century,
who writes that there was hardly a feature of the apprenticeship and vagrancy acts of Mississippi
and of the other southern states,
which was not substantially duplicated in some of these northern laws,
While many of the northern provisions were more harsh in their terms than anything proposed in the South,
and then I gave examples of states in which if you were without employment,
northern states, and wandering around or begging or not giving a good account of yourself,
you could in fact be imprisoned for vagrancy for as long as three years.
And then we might also note that there were other faults the northern states had
and the bad that they often did not notice in their crusade against the South.
But still, it is true that particularly in Mississippi, which was the harshest in terms of its black codes that it enacted,
that an impartial observer may well say that the southern states did in fact introduce some legislation that was, to say the least,
... that was prejudicial to the well-being of blacks, but even there, even in the harshest states, there was always a substantial voice in favor of liberalizing these laws.
And so I quote a number of newspapers to that effect that argued that it's not going to do our state any good in the long run to do these things to the blacks.
There was already a movement in favor of liberalizing these black codes, but nevertheless, by early 1866, the black codes had at least accomplished some things for the blacks,
because they weren't simply a list of restrictions, they also were a list of various protections of rights,
and more or less they protected black rights to own property and to be able to sue in the courts,
and even to testify in cases involving at least one party being black.
So this was at least the beginning of some kind of extension of rights.
It's worth noting, and quite interesting to note, that Generals Grant and Sherman,
who were not exactly the biggest fans of the southern states, nevertheless,
declared the southern states to be loyal and to deserve to be readmitted to the Union promptly.
promptly. They did not call for radical reconstruction. These were men who obviously had reasonable
first-hand experience with the southern states, and they did not favor that. I happen to like
these quotations, so I'm going to read them. Thaddeus Stevens was told by a friend that
the southern states were not hanging portraits of Lincoln in their homes, you know, and they
weren't hanging portraits of radical Republicans. Instead, they would have portraits of Jefferson
Stephen Davis hanging up in their homes.
What could be the matter with these people?
Why would they do this?
So Stephen's friend was quite surprised and horrified to learn that,
referring to Southerners,
while they acknowledge themselves whipped and profess future loyalty,
Confederate generals are their heroes,
Confederate bravery and endurance under difficulties,
their pride and boast,
Confederate dead their martyrs.
In all the stores of Richmond I did not see the picture of a single Union general or politician,
Now, President Johnson, who was never a secession supporter, was a very strong supporter of Union, nevertheless could understand why people would honor the Confederate heroes, and he wrote, or he said,
People should be allowed to grumble who have suffered so much, and they would be unworthy of the name of men if they did not respect the brave officers who have suffered with them, and honor the memory of their gallant dead who sleep on a hundred battlefields around their homes.
Okay, well the Radical Reconstruction Plan in effect consisted of the following, in 1867 the Radicals passed over the veto of Johnson several Reconstruction Acts.
And the provisions of those Acts in effect went like this, that with the exception of Tennessee, and we'll revisit in a moment why Tennessee is an exception,
the other ten former Confederate states would be required to abide by the following terms.
terms. They would be divided into five military districts and occupied by the U.S. military
until the following requirements were met, until new state constitutions were drawn up
and those state constitutions inserted provisions for black suffrage, that is the right of blacks
to vote, and in addition the Fourteenth Amendment would have to be ratified. So we have to get
to what the 14th Amendment was.
But it was never made absolutely clear to Southerners in an ironclad way
that if they complied with these demands, they would in fact be promptly readmitted to the Union.
This was not made clear.
Yes, you do all these things and maybe you'll be readmitted to the Union,
but maybe you'll still be under military domination.
President Johnson very much resisted this legislation because it seemed to him
there was no constitutional warrant for it,
and that at a time when these southern states were not being allowed to have representation in Congress,
the Congress was refusing to seat their representatives,
it seemed to Johnson not to be an auspicious moment to make radical, to institute radical policies like this,
as I say that he believed did not have legal standing, and so he vetoed them.
Now, the very fact that Johnson vetoed them seriously galled the radical Republicans.
In strict theory, of course, the president has the power to veto legislation,
and at the same time, it's also true that Congress had not only the power,
but they actually had the numbers to override those vetoes.
But the radicals were upset in large part because it had been extremely rare for the president to use the veto.
I mean, it was an extreme rarity, and for a president repeatedly to use it
almost struck them as an abuse of power.
As I've noted in another one of my lectures back in another course,
back in the 1840s there were candidates from the Whig Party who in fact,
as one of their platform positions, argued that if you vote for me I will never veto anything.
The refusal to use the veto was held up as a virtue,
because it showed that we are deferring to the most popular branch of government, namely the Congress.
And so the fact that Andrew Johnson had that gall to keep using the veto was just shocking.
It was a shocking example of the use of presidential power.
Okay, so we have to look then at what is this Fourteenth Amendment
that the southern states are being required to ratify as a price for readmission.
Well, there were three amendments that are known as the Reconstruction Amendments for obvious reasons
That became part of the Constitution after the war years 13, 14 and 15.
Of course we all know the 13th Amendment abolishes slavery.
The 15th Amendment involves granting the right to vote to people regardless of race.
The 14th Amendment is a little trickier.
And what we want to look on the 14th Amendment is simply Article 1
The 14th Amendment Article 1 reads as follows, and I can't point out strongly enough to you that these two sentences I'm about to read have been the source of an absolutely astonishing amount of ink being spilled to explain what they really meant, what was the original intent of these two sentences, and there has been
In effect, nothing but dispute and controversy over this amendment ever since.
Well, it reads simply,
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.
Now, that's the first sentence. We'll just pause.
The reason this sentence is introduced is that this reverses the major plank of the Dred Scott decision,
which had argued that American blacks were not citizens of the United States.
This argument is that if you're born in the United States and subject to the jurisdiction of the United States, that makes you a citizen.
I would note parenthetically, by the way, that the often overlooked phrase in this sentence is, and subject to the jurisdiction thereof,
because in our own day we have the practice of people showing up in the United States and sticking around for 10 seconds, giving birth and then leaving,
and then automatically that child can enjoy American citizenship forever.
and Citizenship Forever, and one of the arguments against that is that such a person is not subject to the jurisdiction thereof.
Such a person has moved back to Korea or something, so that you would have to be subject to the jurisdiction of the United States.
You can't just come in for three seconds and get citizenship and then leave.
Second sentence, though, is the one that really has provoked the controversy.
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.
Well, next semester we'll be revisiting this because the Fourteenth Amendment comes up repeatedly in the future in American history.
It's raised a number of times during the Civil Rights Movement, for example,
And there's a lot of debate about what that sentence meant.
Now there are some people who argue that this amendment, in a major way, in fact, and was intended to dramatically overturn the federal government state relationship.
That in fact it was a sweeping revision of the original Constitution.
Because it granted the federal government in effect oversight over the states.
and that if the states were interfering with the rights of individuals in various ways,
the federal government could intervene and protect individuals from the state governments.
Now remember when you remember the principles of 98, the usual thinking was the reverse,
that the state governments need to interpose to protect citizens from the federal government.
Well now the roles are being reversed and the protector and protected are being switched.
Now others have argued that the 14th Amendment was actually quite modest in scope,
that these very open-ended phrases that we hear in there, in fact, had specific meanings at the time
and that, in fact, this was only a very small revision to the Constitution.
This was the position that, among other people,
Emmy Bradford of the University of Dallas took.
He wrote an essay on the 14th Amendment probably 20 years ago, I think,
and the title of the essay was, Changed Only a Little,
and the subtitle was something about the 14th Amendment.
Now, I'm inclined to the second position, and I've been persuaded of this because I've read the work of Raoul Berger, who was a professor, just died a few years ago, was a law professor in Harvard,
and Berger went through and looked at all the original records and everything and found that it seemed pretty overwhelming, that what was intended by the 14th Amendment was to give constitutional standing to the Civil Rights Act of 1866.
There was concern that the Civil Rights Act of 1866 might be subject to constitutional challenge.
So if we amend the Constitution so as to include these provisions in it, then it will be immune from constitutional challenge.
So therefore we have to look for the meaning of the 14th Amendment somewhere in the Civil Rights Act of 1866.
And by modern standards, the Civil Rights Act of 1866 is extremely modest in the things that it calls for.
So the various phrases that we see in this 14th Amendment in fact had specific meanings that were tied to the Civil Rights Act of 1866.
So the main rights that are being protected in the 14th Amendment are in fact the individual's right to enter into contracts freely,
to sue in the courts, to testify in the courts and have recourse to the courts in general, and to own and dispose of property.
So this is in effect what the 14th Amendment was protecting. Now the radical Republicans wanted something much more sweeping and dramatic than that, but what they got was the 14th Amendment.
And this was the bare minimum the South had to ratify the 14th Amendment if they were going to be allowed back into the Union. That was certainly one of the things they had to do.
Now there were some people though who even looking at this very modest and limited nature of the 14th Amendment, there were some people who feared it.
who feared it because they feared that there was a slippery slope to this, that once you
give the federal government oversight over these issues, even if your intentions are
good and even if you believe the federal government will simply limit itself to protecting people
against enormities committed by the states, there's no way to limit it to that and that
before you know it you'll have a federal government that will be completely unchallengeable and
the healthy checks on federal power that the states have provided will basically be destroyed.
It's worth noting that even northerners pointed this out. The state of New Jersey tried for
example to withdraw its ratification of the 14th Amendment at one point and noted that
we believe that this amendment has been deliberately written with ambiguity for purposes of in
effect taking away people's rights. We have Andrew Johnson, Secretary of the Interior,
Orville Browning who was an Illinois man, not a southerner, and he warned, one of the
The greatest perils which threatens us now is the tendency to centralization, the absorption
of the rights of the states and the concentration of all power in the general government. When
that shall be accomplished, if ever, the days of the republic are numbered.
We have the statement by Henry Ward Beecher, the brother of Harriet Beecher Stowe, who obviously
cannot be accused of being a big partisan of slavery and oppression, said,
The Federal Government is unfit to exercise minor police and local government and will
will inevitably blunder when it attempts it.
To oblige the central authority to govern half the territory of the Union by Federal
Civil Officers and by the Army is a policy not only uncongenial to our ideals and to
our ideas and principles, but preeminently dangerous to the spirit of our government.
However humane the end sought and the motive, it is in fact a course of instruction preparing
our government to be despotic and familiarizing the people to a stretch of authority which
can never be other than dangerous to liberty.
So section one of the amendment that we just looked at is the key.
The other sections, for example, number two, had to do with black suffrage, but that was
superseded by the 15th Amendment.
In the 14th Amendment, there was a section two that said that to the extent that you're
depriving blacks of representation, to that extent will you get the number of your congressmen
reduced.
But that was superseded by the 15th Amendment, which said you can't restrict black voting
rights.
Section 3 said that anybody who had held an office in the Confederacy would be excluded from American politics and that plank alone also practically guaranteed that the southern states were not going to accept it because it would be viewed as a slap in the face to people they respected.
It would be one thing for Lincoln or Johnson to say you have to get a pardon first before you can participate in politics again, but it would be quite another for the Constitution, the permanent charter of American government, to have in effect the memory of these men defamed in effect.
So that was a contentious aspect as well. But again, not really relevant to us today because all those people are deceased now.
Section 4 repudiates the Confederate debt, so that Confederate war bonds cannot be cashed in.
You can't show up in Washington D.C. and say, I want to transfer my war bond to the obligation of the U.S. government.
It's not going to happen. But that's also not really relevant today because I don't think anybody is walking around with a Confederate war bond hoping that it will be honored.
So it's really the first section that we look at.
Okay, so radical reconstruction then centers around this 14th Amendment and those other requirements that I mentioned.
Now, Andrew Johnson condemned all this as being in its whole character, scope and object without precedent and without authority,
in palpable conflict with the plainest provisions of the Constitution and utterly destructive to those great principles of liberty and humanity
for which our ancestors on both sides of the Atlantic have shed so much blood and expended so much treasure.
This was at a time when Wisconsin Senator James Doolittle was going around complaining that the Southern states initially had refused to ratify this 14th Amendment and declared that 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 until they do adopt it.
Well, this was the type of behavior that quite appalled Andrew Johnson because it did not seem to be in accord with traditional understandings of the rule of law in the Western tradition.
And so, Andrew Johnson complained as follows publicly,
Those who advocated the right of secession alleged in their own justification that we had no regard for law
and that the rights of property, life and liberty would not be safe under the Constitution as administered by us.
If we now verify their assertion, we prove that they were in truth fighting for their liberty
and instead of branding their leaders as traitors against a righteous and legal government,
we elevate them in history to the rank of self-sacrificing patriots,
Consecrate them to the admiration of the world and place them by the side of Washington, Hampton and Sydney.
Candor compels me to declare that at this time there is no union as our fathers understood the term,
and as they meant it to be understood by us.
The union which they established can exist only where all the states are represented in both houses of Congress,
where one state is as free as another to regulate its internal concerns according to its own will,
and where the laws of the central government, strictly confined to matters of national jurisdiction, apply with equal force to the people of every section.
When the Fourteenth Amendment was initially sent out to the states for ratification, of the former Confederate states only Tennessee initially ratified it.
The others all rejected it because of some of the concerns that I've just mentioned.
Tennessee, because it accepted the Fourteenth Amendment, was spared these radical forms of reconstruction.
So they were not militarily occupied, for example.
But the other southern states, the other ten, were in fact militarily occupied.
They did not enjoy the right of self-government and they certainly did not enjoy representation in the U.S. government.
This was what struck Johnson as being so out of sync with the American tradition.
Well, the 14th Amendment, though, was given a second go-round.
When, by 1866, it was clear the southern states, by and large, were not going to ratify it,
It was given a second try as part of radical reconstruction in 1867 and then was declared ratified in 1868.
Well, that second time in which the southern states were basically told,
well, we'll give you another chance to ratify this because this is the only chance you're going to get to be readmitted into the Union,
we have some problems, some logical and legal problems involved with the ratification of that amendment.
And this is not some crazy theory that I developed.
This argument was in fact made by contemporaries, but it was also noted in the U.S. News and World Report about a half century ago.
U.S. News and World Report had this big editorial saying the 14th Amendment was never legitimately ratified.
And then, more recently, Forrest MacDonald, who is, I think, emeritus now from University of Alabama, but an extremely respected historian,
And again, not an extremist or a weirdo or anything.
Forrest MacDonald wrote an important article in the Georgia Journal of Southern Legal History
in 1991, going through the arguments and concluding
that the 14th Amendment was never constitutionally ratified.
Now, he argued that because it stuck around so long, we still more or less have to live with it.
But in the future, he said, let's try to make sure that we legally ratify amendments.
So that's probably good advice, I think.
But let's see, what are these arguments that are raised against the ratification of the 14th Amendment?
Well, for one thing, the southern states had in fact ratified the 13th Amendment abolishing slavery in 1865.
Nothing about those states had changed by the time of 1866 and 1867,
at the time when they refused to ratify the 14th Amendment.
But it was at that time that radical Republicans in their radical reconstruction programs
and other programs insisted that other than in Tennessee there were no legal governments in any of the states of the former Confederacy
and that therefore they have to be militarily occupied and then readmitted under other conditions.
Well, a legitimate argument would be, then how come you accepted their ratification of the 13th Amendment two years earlier?
Why was that okay? Because you liked the outcome?
It seems that you've got to have it both ways.
If you say the southern states are illegal when they refuse to ratify the 14th then they'd also have to be illegal when they did ratify the 13th and so we don't have the 13th in them either.
There are all kinds of inconsistencies here that were simply brushed aside.
But a more fundamental problem is this.
On the one hand, Congress says 10 of the former 11 Confederate states are illegal governments not to be recognized by the U.S. government, not entitled to representation in the U.S. government,
And so they're illegal and they have not been set up to the satisfaction of the U.S. government.
But at the same time, these very states are being told they have to vote to ratify an amendment as the price for being readmitted.
Well, if they are not legal states, they're not legal governments, then how can they vote to ratify an amendment?
You can't make them legal governments for some purposes and not for others.
Either they are or they aren't.
And if they have the power to vote to ratify an amendment, they should also be having representation in Congress.
Again, there's an inconsistency there.
But there's also the fact that in individual states, there were all kinds of irregularities.
Even in Tennessee, the southern state that ratified the 14th Amendment right away, there were irregularities.
And the example I give involves the fact that opponents of the 14th Amendment had been staying home,
with people who had served in the State House in Tennessee and staying home
so as to prevent
there being a quorum
in Tennessee so that they couldn't actually
transact any business and ratify the amendment.
Well in fact what wound up happening was that supporters of the amendment kidnapped
two of these state legislators
and brought them to the State House and in effect ordered them just to stand there
so that the vote could take place.
Now when the Speaker of the House
was calling the roll, these two refused to answer because their view was that
it's not really legal to kidnap us like this, so we don't consider ourselves to
be present
but nevertheless the vote went ahead to ratify the amendment.
Alright, well you might say that, you know, kidnapping is basically wrong.
There's also the fact that in Oregon,
so it's not even a southern state, in Oregon
the ratification of the amendment had apparently occurred
But it had occurred at a time when two of the seats in the Oregon legislature were disputed.
There were two Republicans who had been elected under suspicious circumstances.
Well then, when an investigation was done and it was concluded that the Democrats should have held those seats rather than Republicans,
it was decided that the vote on the 14th should be taken a second time.
So they did, with the people who were legal sitting in the government, and this time the amendment failed.
But the U.S. government declared that, well, we take your first answer.
So Oregon was declared as having accepted the amendment.
And it goes on. New Jersey attempted to change its mind unsuccessfully.
There was at least one other state that attempted to, before the amendment had taken effect,
that attempted to rescind their ratifications. That was not permitted.
But what we can certainly say is that something extremely odd happened here.
Something very, very unusual happened, and I think it is safe to say that constitutionally, the amendment was not ratified using normal, legal, constitutional procedures.
Now, one of the, this is back when I used to follow this, when my book came out and I actually cared what people were saying on Amazon, you know, because I was following it, I wanted to know what's going on.
One person said, this guy's an idiot, he says the 14th Amendment wasn't ratified, but just look at the Constitution, there it is.
Well, no, that's not the point. Yes, I understand that it was declared to be ratified, I know it's in the Constitution,
because later in the book I refer to the 14th Amendment being used, so obviously I know it's in there.
The point is simply that it does not seem that the proper legal forms were observed.
Well, finally, I would just simply note, because we won't get into the impeachment of President Johnson, you can read all about that.
It was a partisan fiasco where they maneuvered him into committing an impeachable offense.
The radicals were extremely impatient with him, not only because he vetoed all their legislation,
but because he belongs to the executive branch, that's the branch that enforces legislation.
And their feeling was, this guy's heart is obviously not in it. He doesn't support our legislation, so his heart's not in it.
It's not going to enforce the reconstruction legislation reliably, it's going to be lax
in enforcing it, so we've got to get rid of them, and it was just a horror show.
But what I do want to end with though is just a few examples of what wound up happening
with the Fourteenth Amendment.
In order to show that people weren't just being stupid and backward and unreasonable,
that in fact the Fourteenth Amendment did amount in large part to depriving some of
The States of the Rights of Self-Government
So I give in the book the example of
I guess we're all old enough to remember Proposition 187
from 1994 in California
because they've got this big illegal immigration problem in California
and it was obviously bankrupting the state
and you can't just, everybody can't just come and get free stuff
eventually, you know, you run out of money
So Proposition 187 was going to say that
if you're illegally in the country
you can't get free stuff
You can't get free education, you can't get this or that, you can still get emergency medical care, which is expensive enough, you can still get that, but that was about it.
And all the fashionable people were against it, all the Democrats were against it, and all the Republican leaders were all against it.
And there was all this money poured into it being against it.
But it passed by two to one. The voters said, well, we don't care what these fashionable people say, we're very unfashionable, so we want a favorite.
Well, almost immediately it was declared null and void by a Federal Court on 14th Amendment grounds.
Now, what does that have to do with the 14th Amendment, which is supposed to protect the rights of contract and suing in the courts?
What does that have to do with this? Nothing I can see, but there it is.
Or you have the example that a couple years later, again, the state budget is going crazy because they have very generous welfare benefits.
So you have this practice that some people are moving to California for the express purpose
of going on welfare. This is not just some crazy right-wing interpretation. Everybody
knew this was happening. And so what California tried to do in 1996 was to say, all right,
if you come to California and go on welfare, the rule is the first year you're here, your
welfare benefits have to be limited to whatever amount you would have gotten in your home
state that you're coming from. And then after that you can get the full California benefits.
I was also struck down on 14th Amendment grounds. Why? Because that violates the, quote, right to travel, which the 14th Amendment protects.
Now, I must be too simple to be able to follow the deep and profound reasoning in cases like this, but I don't see the relation of that to the 14th Amendment.
And there are other examples as well. But what happened with the 14th Amendment is what happened with the Constitution at large.
The Constitution started off with a very specific understanding of what various clauses meant, as I showed weeks ago, and then it just became this kind of giant loophole you could drive a truck through.
Same thing with the 14th Amendment. Initially it's very modest. It's only to just make sure these few things are being done.
And then it just becomes a giant loophole to drive a truck through.
Some of you may remember the case of the Citadel in South Carolina. It's South Carolina, right? The military academy.
In the 1990s they were told that you have to admit women.
And on what grounds were they told they had to admit women?
Because you're violating the 14th Amendment by not having women in the citadel.
Now, I'm pretty sure there were single-sex military academies at the time the 14th Amendment was ratified.
And nobody thought that contradicted the amendment.
But all of a sudden we discovered that we've been violating the law for over a hundred years and that we need to integrate that.
So the 14th Amendment basically became one of the federal government's crowbars to work its way into local institutions and to in effect make sure that all sort of distinctive institutions were all flattened out and made the same.
So that in the name of diversity, every single institution will look exactly the same.
So you won't have all male military academies anymore. Every institution will look exactly the same. Men and women, this and that, they'll all be the same.
So diversity will give us sameness, is what the 14th Amendment has done.
So people who were concerned about it were not just stupid and racist and evil and wicked,
but they did have legitimate concerns that have, unfortunately, proved all too well-founded.