Sep.05

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The Fourteenth Amendment, Part II: Let Us Have Peace

Last week, we had an item on the passage of the Fourteenth Amendment, with a particular emphasis on the question of how the U.S. ended up with something that is simultaneously so firm in the restrictions it imposes and yet so vague about how exactly they are to be imposed. Today we're going to look at the roughly 4-year period after the Fourteenth Amendment was ratified on July 9, 1868.

To start, note that nobody had any doubt whatsoever that Section 3 of the Amendment, the one that prohibits insurrectionists from holding political office, applied to vast swaths of the Southern populace on the day that the Amendment became law. President Andrew Johnson, though largely endowed with a rubber spine, interpreted it that way, and issued orders to that effect to the generals who were governing the former Confederate states under martial law. The Congress, which had written and passed the Fourteenth Amendment, certainly understood its own intent. The members acted consistent with that intent even before the Fourteenth was passed, refusing to seat at least a dozen former Confederate members-elect, and also impeaching and removing from office the pro-Confederate judge West Hughes Humphreys. Perhaps most importantly, the Southern populace well understood the situation. The House Select Committee on Reconstruction, which sat from 1867-71, received over a thousand requests from Southern would-be officeholders, asking for their eligibility to be restored.

The upshot: It was so abundantly clear that anyone who had violated their oath by rebelling against the United States was out of luck, very few people actually put Section 3 to the test. Between 1869 and 1872, there are only six known cases of someone being explicitly disqualified from office under the terms of the Fourteenth Amendment. Here is a rundown:

1. John H. Christy (1868): Exactly what oath Christy took before the Civil War is not known. It's also not known exactly what he did during the Civil War, as the documentation that is left to us just says he "[gave] aid, countenance, counsel, and encouragement to persons engaged in armed hostility to the United States." Nonetheless, when Christy was elected to the U.S. House of Representatives from Georgia, Gov. Rufus Bullock (R-GA) refused to issue a certificate of election, as he found that Christy was disqualified by the Fourteenth Amendment. The House sustained the Governor, and refused to seat Christy.
   
   Bullock tried to give the job to the other candidate, John Wimpy, but it turned out that Wimpy did not, in fact, pay people back on Tuesday if they bought him a hamburger today. No wait, wrong Wimpy. This one had likewise taken a pre-war oath and had served in the Confederate Army, so he was not eligible, either. Not terribly long thereafter, thanks to his habit of trying to protect the civil rights of formerly enslaved people, Gov. Bullock was strongly encouraged by men in robes and hoods to leave the state before his term was up, lest he find himself with a neck that was no longer intact. He wisely took their advice.
   
   
2. Kenneth H. Worthy (1869): He was a county sheriff, then served in the Confederate government, and then was reelected as a county sheriff after the war. He was barred from assuming office by a county commissioner in North Carolina, and filed suit in state court to be allowed to assume his post. In Worthy v. Barrett, the state Supreme Court found that it did not matter that Worthy had never engaged in acts of violence against the United States, and it also did not matter that the oath he took as sheriff was not a federal oath, he was clearly disqualified under the terms of the Fourteenth Amendment as he had participated in an insurrection in violation of his oath.
   
   
3. William L. Tate (1869): Tate was a county attorney before the Civil War, then served as an officer in the Confederate Army, then was elected a state solicitor. When he submitted his certificate of election to a judge, in order to be sworn in for his new position, the judge said "no." Tate sued, and in In re Tate, his disqualification was upheld.
   
   
4. J.D. Watkins (1869): Watkins was a district attorney prior to the Civil War, and served in some lost-to-time capacity during the War (though likely not as a soldier, as there would be documentation of that). After the surrender at Appomattox, Watkins was elected a state judge, and a quo warranto action was filed against him by one of his fellow judges. This is a demand that can be filed by any citizen, and that requires someone prove they are qualified for the office they hold. In Watkins' case, the argument was made in State ex rel. Sandlin v. Watkins that he was not qualified, both under the terms of the Fourteenth Amendment and under the terms of a state law meant to allow enforcement of the Fourteenth Amendment. Watkins lost and was removed from the bench; the key finding here was that the restriction is a qualification for office and not a criminal penalty. So, one need not commit a crime, necessarily, to trigger the provision.
   
   
5. A.F. Gregory (1871): This is the case about which the least is known. There is no documentation as to what pre-war post Gregory held, or what he did during the Civil War. However, after he was appointed as a postmaster in Grayson County, VA, the U.S. Postmaster General filed a quo warranto action and Gregory was removed.
   
   
6. Zebulon B. Vance (1872): This is the famous one, at least among historians. Vance was a U.S. Representative before the war. During the war, he was not only a Confederate, he was one of the most prominent Confederate officeholders, serving as governor of one of the South's most populous states, North Carolina. In 1872, he was chosen as a U.S. Senator by the North Carolina legislature, which by then was back under the control of white conservatives. The losing candidate challenged the validity of Vance's election under the terms of the Fourteenth Amendment, and ultimately, the U.S. Senate refused to seat either of them.

Those are the six known contemporaneous enforcements of Section 3 of the Fourteenth Amendment. Not a lot, but the following principles were nonetheless clearly established:

• Disqualification does not require a crime to have been committed.
• Disqualification does not require a violent act to have been committed.
• Disqualification does not require a court hearing or a court finding.
• That said, a court CAN be the instrument by which someone is disqualified, as can Congress.
• There is no particular "timeline" for disqualification; a person can be subject to the Fourteenth Amendment even after they've been elected and, in fact, even after they've already assumed office.

So, how come there were only six disqualifications in total, and then they stopped after 1872? That requires another overview of the milieu. Recall how we wrote that things changed rapidly on the ground during the Reconstruction Era? Well, the things on the minds of government officials had evolved a fair bit from 1868:

• White Resistance: White Southerners were not happy to lose the Civil War. They were even more unhappy to lose their slaves, though they had braced for that eventuality by the time it happened, and they found a pretty good substitute in the form of sharecropping. The white folks were furious when Black Americans were granted citizenship and other protections, and were positively livid when suffrage was extended by the Fifteenth Amendment in 1870.
  
  In view of these things, white Southerners asserted themselves... aggressively. It was something of a two-pronged approach. The resistance that was ostensibly legal, like electing white conservatives to political office, was done out in the open. The resistance that was not legal, like threatening or committing violence against Black people and their white allies, was done "anonymously," in costume, by the Ku Klux Klan and other vigilante groups. The locals knew who was under those hoods, but it was rather harder (though not impossible) for the feds to track them down. Klansmen in the 1860s and 1870s were disproportionately military veterans and members of law enforcement, whereas today... well, some things don't change.
  
  During this time, white Southern leaders also undertook a successful whitewashing PR campaign that very effectively rewrote the history of the Civil War and the Reconstruction. Their interpretation, of course, came to be known as the "Lost Cause" view of the Civil War. The attraction of the Lost Cause, including among many Northerners, was due in significant part to the increased speed of industrialization and urbanization in the postbellum era. There are upsides to those things, but also downsides. And for the average person, the downsides—overcrowding, increased crime, increased filth, pollution, ethnic conflict—tended to be more noticeable than the upsides. The antebellum South was romanticized as the counterpoint to "modernization," a time when life was simpler, slower-paced, less crowded, etc. It's an old tendency, dating at least as far back as Marcus Cato the Elder and Livy, and finding expression today in the form of politicians who promise to Make America Great Again.
  
  
• Weariness: The victorious North, through the federal government, spent roughly 15 years trying to impose its will on the South (1861-76). The investment was particularly substantial during the first decade of that period. And the return on investment was... not good. The South barely changed at all, and that is true whether we're talking about politics, culture, economy, or nearly anything else. Nation-building is hard, even when it happens at home. And before you look too askance at the postbellum federal government, and its Northern voters, keep in mind how quickly Americans grew weary of involvement in Korea (≅3 years), Vietnam (≅7 years), or Iraq (≅8 years).
  
  
• Philosophy: There were a fair number of Northerners, including government officials, who regarded themselves as fair-minded. That might even have been a reasonable assessment. And what they increasingly began to think is that white Southerners were fellow citizens, and had paid a pretty serious price for their rebellion, and were ultimately entitled to restoration as the equals of their Northern brethren. The more liberal-minded Northerners hopefully/naively told themselves that Black citizens had been given rights, too, and that everyone in the South would be on equal footing. The less liberal-minded Northerners took the view that, when push comes to shove, the rights of white people (even former rebels) are more important than the rights of Black people (even veterans of the Union Army).
  
  
• Realpolitik: Meanwhile, as we noted in the previous installment, there were some Republican politicians who supported civil rights/suffrage for Black Southerners due to the notion that Black, Republican voters could become a power base for the Republican Party in the South. By the early 1870s, however, two things had become clear: (1) that outcome was not likely, and (2) Republicans would nonetheless be able to dominate national elections based on votes in the North and the West. Both of these suppositions proved to be correct; everyone knows what happened with Black voting in the late nineteenth and early twentieth centuries, while Republicans controlled the White House for 56 out of 72 years between 1860 and 1932. Anyhow, given these realities, those folks who favored Black civil rights for their own selfish/practical purposes tended to lose interest.
  
  
• Let Us Have Peace: For most Americans today, Ulysses S. Grant is famous as a general, and his political career is something of a footnote or a sidebar. In Grant's own time, however, his presidential record was almost as important as his military record. His slogan in 1868, and in 1872, was "Let Us Have Peace." This was important enough to his legacy that it's carved above the entrance to his tomb:
  
  
  
  While some slogans are just empty B.S. (ahem, MAGA), Grant really meant it. And, in view of the various trends outlined above, the voting public was ready for it.

Now, as we did last time, let's run down the key players in early 1870s federal politics:

• Congressional Republicans: The Republican Party still held the reins of power in the Congress, but it was a rather different Republican Party than the one 4 years earlier. The radical faction was all but gone, with members having died off (e.g., Thaddeus Stevens), or having reached the end of their time as power brokers (e.g., Charles Sumner), or having simply been voted out of office (e.g., Benjamin Franklin Wade). By the 1870s, Congressional Republicans were an amalgam of moderates and moderate conservatives, with the (very) occasional liberal mixed in. Think today's Senate Democratic Caucus, and you get the basic idea.
  
  
• Congressional Democrats: The Democratic Party was again a viable concern in the North by the time the 42nd United States Congress took its seats on March 4, 1871. Meanwhile, Southern Democrats had begun to regain some voting power, and thus some representation. The Congress was still dominated by Republicans, but 102 of 241 members of the House (42%) and 14 of the 70 members of the Senate (20%) were Democrats. That meant no more constitutional amendments (the next one was in 1909) and no easy overrides of presidential vetoes.
  
  
• The Supreme Court: By 1872, Republican appointees had a supermajority on the Supreme Court, as the number of seats was back to nine, and there were only two Democratic selections still sitting. That said, it was clear that the liberal chief justice, Salmon Chase, was near the end of the line (he died in 1874). Further, the Republicans seated in the 1860s and 1870s (note that Andrew Johnson made no selections) were of a decidedly conservative Republican bent. One might even say reactionary. By the early 1870s, the pieces were already in place for the civil rights gains of Reconstruction to be significantly dialed back by the Supremes. Keep in mind that Plessy v. Ferguson (1896) was decided by a Court that was 7-2 Republican (including the last remaining Lincoln appointee).
  
  
• Grant: After signing a peace agreement with Robert E. Lee in 1865, Grant sent out an order that said: "The war is over; the rebels are our countrymen again; and the best sign of rejoicing after the victory will be to abstain from all demonstrations in the field." From that day, and for the rest of his life, Grant was committed to treating the defeated Confederates as Americans, and not visiting victors' justice upon them.
  
  That is not to say that he was a white supremacist, however, because he was not. In fact, by the standards of his day, he was a liberal on race. He knew full well that Black men had served with distinction in his army, and he believed that Black veterans, and Black people, were entitled to citizenship and the privileges therein. He was absolutely willing to flex his muscles—as a postwar military commander, then as Secretary of War, then as president—to see that this was the case.

In short, after the Fifteenth Amendment was added to the Constitution on February 3, 1870, the time for transformative legislation was at an end. That said, the next 2 years did see two important pieces of legislation that, while possibly incongruous to the modern reader, made perfect sense in the context outlined above. The first of these was The Enforcement Act of 1871, which is better known as The Ku Klux Klan Act. The original draft was the work of one of the few remaining congressional radicals (Benjamin Butler), and was revised into passable form by one of the moderates (Samuel Shellabarger). It was requested by Grant, passed the Congress a month later, and used to great effect to destroy the first incarnation of the KKK. Hundreds of Klansmen were identified, put on trial (often with Black juries—can someone say "schadenfreude"?), and imprisoned. Habeas corpus was suspended in nearly a dozen counties. The Klan would not come back to life for nearly 50 years.

The second piece of legislation, also passed at the instigation of Grant, was The Amnesty Act of 1872. It says:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each house concurring therein), that all political disabilities imposed by the third section of the fourteenth article of amendments of the Constitution of the United States are hereby removed from all persons whomsoever, except Senators and Representatives of the thirty-sixth and thirty-seventh Congresses, officers in the judicial, military, and naval service of the United States, heads of departments, and foreign ministers of the United States.

When Grant applied his signature to the bill, it restored the eligibility for office of nearly 150,000 former Confederates (including the aforementioned Zebulon Vance, who was promptly sent to the U.S. Senate again by his fellow North Carolinians, where he served for 15 years). Consistent with the spirit of the occasion, Grant also pardoned 500 high-ranking Confederates (though the 500 remained ineligible for officeholding).

The thinking here, whether agreeable to the modern reader or not, should be fairly evident. In the 1870s, Northern leadership, including the President, remained willing to protect the rights of the freedmen and freedwomen (although that impulse would fade fairly quickly). At the same time, they had lost enthusiasm for imposing punitive measures on white people, even former Confederates. The country was, on the whole, ready to move on from the Civil War, and bringing an end to these measures was a way to do that.

That is how the country ended up in a situation where there were literally hundreds of thousands of former Confederates subject to Section 3 of the Fourteenth Amendment, and yet only half a dozen who were actually, formally disqualified by it. In part, this was because thousands of Southerners yielded to the Amendment's terms, and did not try to put it to the test. And in part, it was because in the rapidly evolving postwar world, interest in enforcing Section 3 faded quickly. That said, the events of the four-year period from 1868 to 1872 made very clear that Section 3 was meant to be very broadly applicable, and enforceable in a wide variety of ways.

Next Tuesday, we'll take the story from 1872 up to the present, including the only two enforcements of Section 3 of the Fourteenth Amendment in the past 150 years. (Z)