Framing and Ratifying the Fourteenth and Fifteenth Amendments: "The Reconstruction Amendments: Essential Documents," Vol. 2

The extraordinary drama of framing and adopting the Fourteenth and Fifteenth Amendment involved an extraordinarily diverse group of Americans; black and white, men and women, city and country, north and south, powerful and poor. Volume Two documents their efforts and their voices.

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One of the most extraordinary moments in American constitutional history occurred on December 4, 1865. On this, the opening day of the Thirty-Ninth Congress, congressional Republicans made the extraordinary decision to refuse admission to representatives from the former Confederate States. The bewildered southern representatives were left standing in the aisles, their pleas to be recognized by the Chair ignored. Republicans instead proceeded to create the Joint Committee on Reconstruction and tasked it with determining the constitutional changes that had to be made before the Union could safely allow the return of the former rebel States.

Thus began a constitutional drama that would not be complete until after the passage of two more constitutional amendments. The Fourteenth Amendment would solve the problem of southern state representation created by the ratification of the Thirteenth Amendment and define the scope of post-bellum constitutional liberty. The Fifteenth Amendment would prohibit states from denying the right to vote on the basis of race.

At no point was it certain that either amendment would be passed, much less be ratified. The effort to pass the Fourteenth Amendment almost failed, and its ratification triggered a second civil war (one between Republicans and Democrats). It took the impeachment of an American President and the enforcement of the Reconstruction Acts before ratification was assured. Passing Fifteenth Amendment almost failed due to procedural chaos between the two houses of Congress, and securing its ratification involved kicking a readmitted state out of the Union.

The newly published collection of original historical documents, The Reconstruction Amendments: Essential Documents, Volume Two presents the historical record of this remarkable, and remarkably public, constitutional event. The documents include the key congressional speeches and debates, state ratification debates and reports, newspaper essays, campaign speeches and documents, and efforts by women's suffrage advocates and black civil rights organizations to shape the scope and content of constitutional reconstruction.

Unlike the secret Philadelphia Constitutional Convention debates of 1787, the debates over the framing of the Fourteenth and Fifteenth Amendments were open to the public. Newspapers published transcripts of the speeches and debates on a daily basis and politicians circulated their speeches in pamphlet form as campaign documents. In short, members of the public could follow the arguments supporting or opposing proposed amendments, arguments that included lengthy debates over the scope of the Thirteenth Amendment, the privileges and immunities of national citizenship, the natural rights of all persons and the nature and limits of federal power.

Nor was the public reduced to mere spectator. Women's suffrage groups, for example, continually pressed Congress to enact universal suffrage. When Robert Dale Owen sent Thaddeus Stevens his suggested draft of a five-sectioned Fourteenth Amendment, newspapers reported the draft before Stevens introduced the draft to the Joint Committee ("News of the Proposed Amendments in the Joint Committee," Chicago Tribune, April 16, 1866).

Volume Two also presents a number of previously unpublished documents containing the Fourteenth Amendment ratification debates. Long assumed to be either non-existent or no more than fragmentary, Volume Two contains discussions of the proposed amendment in gubernatorial addresses, committee reports, and state legislative debates (including Pennsylvania's lengthy ratification debates). Ratification documents also include public commentary on the proposed amendment by Frederick Douglass, Wendell Phillips, southern loyalists, Susan B. Anthony, Elizabeth Cady Stanton, S.S. Nicholas, anonymous essayists (the "Madison" essays), northern and southern newspaper editorialists, and much more.

Documented alongside these ratification debates are a number of critical events that had an impact on ratification: The 1866 New Orleans riots, the 1866 congressional election (numerous campaign speeches spoke about meaning of proposed Fourteenth Amendment), the impeachment of President Andrew Johnson, and the passage of the 1867 Reconstruction Acts. One of the most sublime documents in this section is the notice of ratification by the majority black legislative assembly of South Carolina, the state that started the Civil War.

The second half of Volume Two focuses on the framing and ratification of the Fifteenth Amendment. The question of black suffrage had been part of constitutional reconstruction debates even before the ratification of the Thirteenth Amendment. Now, sensing that the window for constitutional change was closing, Republicans in the final days of the Fortieth Congress rushed to pass a proposed suffrage amendment and send it to the states before the end of the current state legislative session.

The result was procedural chaos, with competing drafts sent back and forth between the houses of Congress. Within this chaos, however, are extraordinary speeches on the meaning of American citizenship, the nature of constitutional federalism, the scope of Fourteenth Amendment enforcement power, and the perceived limits of public support for universal suffrage.

Although a number of reconstructed southern legislatures quickly ratified the amendment, northern opposition emerged in the form of Democrat-controlled state legislatures and, most startlingly, from women's rights advocates like Susan B. Anthony and Elizabeth Cady Stanton. In language increasingly racist in tone and content, Stanton and Anthony called for the defeat of the Fifteenth Amendment (see Stanton's "All Wise Women Should Oppose the Fifteenth Amendment"). At the 1869 Equal Rights Association, with Frederick Douglass seated on the same stage, Stanton announced that she "did not believe in allowing ignorant negroes and ignorant and debased Chinamen to make laws for her to obey."

In fact, significant pockets of opposition to black suffrage remained both north and south. Ohio ratified the Amendment by a single vote. New York ratified, but then rescinded its ratification. When the newly readmitted state of Georgia refused to seat newly elected black state representatives, Congress expelled the state of Georgia and demanded the ratification of the Fifteenth Amendment as the price of re-readmission. Similar "Requirement Bills" were passed for the readmission of Virginia, Mississippi and Texas.

Finally, on March 30, 1870, President Grant announced the ratification of the Fifteenth Amendment, "a measure of grander importance than any other one act of the kind from the foundation of our free Government to the present day." Frederick Douglass, in a message to a group celebrating the passage of the Fifteenth Amendment, wrote, "[h]enceforth, we live in a new world, breath a new atmosphere, and have a new earth beneath and a new sky above us."

Tomorrow: Using the Collection for Research and Teaching a Course on the Reconstruction Amendments

NEXT: A Testimonial for Kurt Lash's "The Reconstruction Amendments"

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  1. These Amendments are great. If only the Supreme Court could read and comply with their 8th grade English. They say, person. The Supreme Court read the minds of the Congress instead of the word. They said, the Congress meant black men, not women, could vote. We had to endure 40 years of whining and annoying beseeching by feminists.

    Person is a 4th grade word, it means, a human, an individual. That includes female humans. The Supreme Court is unbelievably stupid and lawless. They just impose their stupid biases and beliefs. All should be replaced by members of a jury pool from Virginia. Get rid of the most toxic occupation in our nation, 10 times more toxic than organized crime.

    1. The 15th Amendment says the “right to vote” can not be denied to person “on account of race, color, or previous condition of servitude.” The amendment does not say anything about such denial based on sex, that was rectified by the 19th Amendment. So what is your problem with the Supreme Court in this matter?

      1. The 1880 case claimed Equal Protection of persons.

        1. Equal protection of persons prohibits outlawry. It had nothing to do with voting rights, or else you’d never have needed a 15th amendment in the first place.

          1. Considering that there are now 27 amendments, even if equal protection did cover voting rights and the existing 15th and 19th were superfluous, there would still have eventually been a 15th amendment.

            1. OK, or else it would have been a different 15th amendment.

    2. “These Amendments are great….Get rid of the most toxic occupation in our nation, 10 times more toxic than organized crime.”

      Of course the Congress that drafted and submitted these Amendments was made up of mostly lawyers. Derpity-derp!

  2. I once borrowed a book on the congressional debates on the Reconstruction Amendments from the school library. This sounds like a much fuller (and necessary) account, but that was an eye-opener in itself.

    1. The account of how the 14th and 15th got ratified was pretty eye opening, too, if you ask me. As recounted above, at least one state that had already been readmitted to the Union was expelled again until they agreed to ratify the 15th. I defy you to locate anywhere in the Constitution the power to expel states against their will; The case for that is a thousandfold weaker than the case for secession.

      1. Technically, what the political branches did was two things:

        1. Congress expelled Georgia’s elected representatives, which was a power Congress holds under the Constitution.

        2. The army reimposed military rule on Georgia, which is effectively constitutional under the same implied powers Lincoln had to impose military rule during the civil war.

        So even though it effectively kicked Georgia back out of the union, de jure, it was by doing two things that are generally considered to be constitutional.

        1. Technically, the Constitution permits a lot of things that would utterly void the social contract, and justify nuking DC from orbit. For instance, tomorrow the Democrats could, constitutionally, expel every Republican member of the House, and all but one Republican Senator, (Just to preserve a quorum, of course!) then pack the Supreme court, admit each different residential block of D.C. as a separate state, and then use the D.C. voting block to amend the Constitution to abolish elections and declare Kamala Harris queen.

          Continued civil order depends on both parties refraining from doing those sorts of things.

          During the Civil war, and for a while after, radical Republicans did void the social contract, and got up to a lot of things that even at the time were viewed as outrages, and that were tolerated only at the point of a gun.

          It’s a valid question why we, in a time of peace, feel obligated to regard those actions as legitimate. Doesn’t doing that lower the threshold for doing them again?

          1. Technically, the Constitution permits a lot of things that would utterly void the social contract, and justify nuking DC from orbit.

            You must never forget that it is a Constitution we are expounding, Brett.

            The Constitution isn’t exactly silent in time of war or rebellion, but it takes a hands off approach on a lot of things. It certainly DOES NOT say that any state whose leaders and militias committed treason against the United States had to be let back into the union at all, let alone under the conditions they wanted.

            The Reconstruction Amendments are completely legitimate because when the confederacy fired on Fort Sumter and then prosecuted a four year long civil war against the United States, and lost, they lost the right to demand ANYTHING and the victors had every right to tell them “look, it’s this or we prosecute every last one of you for treason”.

            1. Georgia had been readmitted on theoretically equal status with the rest of the states, and then got kicked out when they refused to ratify the 15th amendment.

              Permitting that sort of tactic makes a hash of the ratification procedure, it really serves no purpose if it isn’t voluntary.

              And I would say that the Union invested Fort Sumter, (It was vacant when the South seceded.) and then prosecuted a four year long war of conquest. And that’s the truth of what happened, even if the South’s motive for seceding was execrable.

  3. In some ways this looks like hard cases make bad law. In particular the 14A grants citizenship to persons under control of the government except for persons born to foreign diplomats but includes persons born to illegal aliens; something I never understood.

    One reason I am a supporter of the filibuster is it insures not just majority support but wide spread support. As the OP confirms there was serious opposition to these amendments and the result was a rift that still exists even today.

    I would also point that while the EC has good reasons to exist (including I doubt the Union would exist without it) it magnifies just how much the prez won buy (not to mention you don’t need a majority of the popular vote to win). Both Trump and Biden won by less than 80,000 votes in key states yet the EC made it seem like they had significant victories. Sad to say both governed as if they had a real mandate instead of a razor thin victory.

    My take is there was a good reason the FF made it very hard to amend the constitution and taking shortcuts like was done for these amendments was not a good idea. Just as a lot of what is going on in the current administration is not a good idea.

    1. “In particular the 14A grants citizenship to persons under control of the government except for persons born to foreign diplomats but includes persons born to illegal aliens; something I never understood.”

      It’s quite simple really. When 14A was ratified, there were diplomats with diplomatic immunity, but there was no such as “illegal aliens” as the first US immigration restrictions weren’t enacted until 1882, 14 years after the ratification of 14A. The US was full open borders when 14A was ratified.

      1. In short, it would have been very odd indeed for the drafters of 14A to exclude a category of persons who did not yet exist.

  4. “Ladies and gentlemen of the jury, I will provide witnesses who were playing an innocent game of cards with the Fourteenth Amendment at the time of the alleged incident…”

    Wait, not that kind of “framing”?

    1. If the card game was innocent, how would that be a framing of any kind?

  5. WTF. Email from Amazon:

    The Reconstruction Amendments:…

    Did I want to buy the book at $175?

    1. You’ve probably visited a site associated with Amazon in the last year, and not wiped your hard drive and reinstalled everything from original media. The NSA envies Amazon’s surveillance capabilities.

  6. The most revealing action of Congress as to the scope and reach of the 14A was with the requirements for former rebel states to be readmitted into the union. Radicals required their constitutions and laws to conform with the 14A’s requirements to the letter before they would allow readmittance. Many of the states found conforming with the 14A had segregation laws on the books, etc.

    1. Oh, sure, at the time racial segregation wasn’t viewed as a violation of the 14th amendment, and IIRC, Lincoln himself was in favor of it. He wanted all the blacks resettled in another country, remember.

      It took a long time for the legal system to acknowledge that, in practice, separate never actually was equal, because nobody who wanted separate actually intended equal.

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