The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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The newly published collection of original historical documents, The Reconstruction Amendments: Essential Documents, Volume Two presents the historical record of this remarkable, and remarkably public, constitutional event.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