Aug.30

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The Fourteenth Amendment, Part I: The Passage of the Amendment

Lo and behold! As you can see, there actually wasn't that much Donald Trump legal news yesterday. So, we have an opportunity to get to some of the things that have been on the back burner. Although one of those things is the historical background... to Trump's legal problems. Specifically, we thought we'd try to make clear, as best we can, why the Fourteenth Amendment is both very assertive, and yet also very vague, when it comes to disqualifying insurrectionists from political office.

To begin note that, bar none, there is no period of American history that is more difficult to teach than the Reconstruction Era (1865-77). The Colonial Era, the Revolutionary Era, the Jacksonian Era and the Roaring Twenties are no walk in the park, either, but nothing comes close to Reconstruction. There are many, many moving parts; there are a lot of nuances and subtleties that turn out to be very important; and things changed quickly on the ground, such that something that was definitely true in 1866 might be completely untrue by 1870. It's a real mess, and it's somewhat laughable that college professors are expected to teach The Civil War (doable, but also complicated) and Reconstruction in just one quarter or just one semester.

Point is, this isn't terribly easy. We've decided the best way to start is to run down the key considerations that played a role in the promulgation and adoption of the Fourteenth Amendment:

• Was It Not Real?: The victorious North paid a terrible price for the Civil War, with more than half a million men killed, well over a million more left with significant physical or psychological damage (or both), people on the homefront who were stretched to (or beyond) the breaking point, and an enormous financial investment, among other things. Naturally, the people who endured a 4-year "fiery trial" wanted it to mean something. Yes, the union and democracy had been saved, but the country already had union and democracy before the Civil War. Many Northerners wanted the country to end up somehow better as a result of the years of bloodshed. For some, that meant greater equality between the races. For considerably more, it meant re-inventing the South in the image of the industrial North.
  
  
• Southern Intransigence: The defeated South also paid a terrible price for the Civil War, with over 300,000 killed, at least a million more men left physically or psychologically scarred, a homefront where many had lost everything and where the infrastructure was in a shambles, and an economy that was left a shadow of its former self, thanks both to the damage wrought by war and to a dramatic drop in the value of cotton. All of this said, most Southerners did not desire a New South. They liked the Old South just fine, thank you very much. They knew slavery was a Lost Cause (and we mean that on multiple levels), but most white Southerners otherwise wanted to re-create what they had known before the War. That included keeping the same political elite, with the result that in the very first election after the War (before whites were temporarily disenfranchised), they elected nearly a dozen key Confederate politicians to Congress, most notably Confederate VP Alexander Stephens. The Northern-dominated Congress refused to seat these Southern members and, over the course of Reconstruction, ultimately gave about 30 members-elect the heave-ho because of their Confederate background.
  
  
• A Plethora of Problems: Beyond the fact that Southerners did not appear to have learned their lesson from the Civil War, there were other serious legal and political issues for Congress to wrestle with. For example, both sides financed their war efforts by assuming lots of debt. There was a need to make clear that Northern citizens were going to be repaid, while those people who had invested in the Confederacy were out of luck. It was also important to give the federal government a free hand in imposing the will of Congress, since the Southerners were perfectly happy to resort to extralegal means (like, say, vigilantism) in order to resist change.
  
  
• The Future of the Freedpeople: The freedpeople were a particularly tough puzzle to tackle. To start, there were certainly some Northerners, and some Northern members of Congress, who supported racial equality as a matter of philosophy or ethics. On top of that, there was some additional number who had an understanding of manhood and of citizenhood that was very much tied to military service. Abraham Lincoln, at least in his public pronouncements, thought along these lines. The basic idea was that if you are a man and a citizen, you have a duty to serve as a soldier. And the converse was also true, that if you served as a soldier, you had earned your spurs as a man and a citizen. During the Civil War, 150,000 Black men had served as soldiers. Ipso facto, they had proven their worthiness for citizenship and for being regarded as "men." (The alternative notion, which was widespread prior to the Civil War in both sections, was that Black people were actually animals, and not "men" or "women." Well, at least until some Southern plantation owner needed someone to rape.)
  
  The upshot is that civil rights for Black people (or, sometimes, just for Black men), had a fair bit of support on a philosophical level among the members of the Northern public. There was also a more practical consideration, however, particularly among the politicians. Recall that the infamous three-fifths clause does not use the word "slavery" directly, but it does say that anyone who is not "free" or "Indians not taxed" counts as three-fifths of a person for representation purposes. Well, the moment the Thirteenth Amendment became law on December 6, 1865, all of the formerly enslaved people were free, and thus counted 100% for purposes of representation. And the not-so-intended byproduct of that was that the South was suddenly entitled to many more seats in the House of Representatives. Many Republicans wanted to make sure that the freedpeople (or, at least, the freedmen) could vote, as a counter-weight to this.
  
  All of this said, be clear that the white North was, on the whole, pretty racist. Not as bad as the South, on the whole, but still pretty racist. That meant there were some Northerners who were perfectly OK with keeping the Black folks as second-class citizens. And there were some Northerners who resisted too much change too fast, just as a general principle. And there were some who supported greater equality for Black people, but not TOTAL equality for Black people. Point is, there were limits to how much could be accomplished here on the racial equality front, and whatever was done was going to require quite a bit of politicking.

Now that the major considerations have been addressed, let's run down the key players in late-1860s politics:

• Congressional Liberals: These folks were the Bernie Sanderses and Alexandria Ocasio-Cortezes of their day, elected to the Senate from what would later be called "deep blue" states (e.g., Charles Sumner of Massachusetts) or to the House from what would later be called "deep blue" districts (e.g., Thaddeus Stevens of Pennsylvania). That said, the lefties weren't called Democratic socialists back then, they were called Radical Republicans (because the Republicans were the lefty party) or, by their opponents, Jacobins. This faction tended to support total racial equality, and was also OK with imposing very punitive measures on the South like, say, permanently revoking their statehood. This faction had a seat at the table, to be sure, and even got to drive the ship of state (well, the ship of Congress) on occasion, but was always in the minority.
  
  
• Congressional Moderates: This was the largest faction, and the one Abraham Lincoln would have been part of had he lived past 1865 and had he been a member of Congress. They were certainly open to the idea that steps needed to be taken to preserve the positive results of the Civil War, and to help Black people, but they were also very pragmatic, and were committed to the notion that the Southerners remained fellow citizens and so could not just be steamrolled en masse. Nothing got through Congress in the late 1860s without significant buy-in from this faction.
  
  
• Congressional Conservatives: This included a small number of white Southerners who had been allowed to take seats in Congress in 1866 or 1868, as well as all of the Northern Democrats. To a fairly large extent, these individuals, who were greater than the radicals in number, wanted to restore the status quo ante bellum as much, and as quickly, and as painlessly as possible.
  
  
• The President and Supreme Court: The President, until March 1869, was Andrew Johnson. He was a Democrat, having been elected on a "national fusion" ticket with Lincoln, under the "National Union Party" banner. Although he talked like a class warrior upon taking office, and threatened to exact his vengeance on rich white Southerners, he did not have the backbone to actually do that. Further, he was a racist. So, he became a member of Team Status Quo Ante Bellum pretty quickly (by the end of 1865), and remained that way for the rest of his presidency.
  
  Meanwhile, the Supreme Court was in an unusual situation for most of the late 1860s. The Judicial Circuits Act of 1866 decreed that the number of seats on the Court would be reduced from ten to seven. However, nobody was removed from the court; the reduction was to occur through departures. There was already one vacancy when the bill was signed into law (as chance would have it), and then on July 5, 1867, James Moore Wayne died. For about 2 years thereafter, until Congress decided to re-set the number of justices back to nine, the Court had eight members. Three of those were conservatives appointed by Democrats. Five of them were Lincoln appointees, from the very liberal Chief Justice Salmon Chase to the politically independent David Davis to the fairly conservative Stephen Johnson Field. Because there were only eight justices, it meant that all five Republican votes were generally needed in order to issue a precedential ruling. And given the ideological diversity of the Republican justices, five votes were never a sure thing.

As a consequence of the considerations outlined in the first list, there was plenty of potential in late-1860s America for broad, transformative legislation of one sort or another. After all, there were plenty of things that needed to be addressed, and the Congress was firmly in control of Republicans (the moderates plus the liberals) who liked the idea of flexing their muscles a bit.

That said, there were a couple of very big obstacles. The first of those was Andrew Johnson, who was more than happy to wield his veto pen, and did so multiple times, most notably for the Civil Rights Act of 1866. His veto was overridden, but that takes a supermajority, of course, and those are not always so easy to put together. Sometimes, but not always.

The second obstacle, meanwhile, was the Supreme Court. The nineteenth century was a time of limited government, and quite a few officeholders had serious scruples about what powers Congress did, and did not, have. And so, even many of the moderates who voted for things like the Civil Rights Act of 1866 wanted the Supreme Court to weigh in and confirm that everything was kosher. And even absent the moderates' concerns, people were nearly as lawsuit-happy back then as they are today. So, any transformative bills passed by Congress, even with a veto override, were likely to end up before the Supreme Court. And, as noted, the Supreme Court was a known unknown in the late 1860s.

There is, however, a workaround available. Or, at least there was from 1865 to 1870, or so. The one thing that a president can't veto, and that a Supreme Court can't strike down, is a constitutional amendment. And the fact that the Southern states had left the union conferred two... opportunities when it came to passing amendments. The first is that the states left with deciding power were Northern states, and more likely to sign off on something pieced together by a bunch of predominantly Northern congressmen. The second is that when Southern states rejoined the country, one of the prices of admission was... they had to sign off on the new amendments. If you were to try to pass, say, an anti-gerrymandering amendment today, then a state like Tennessee would be an automatic "no." Back then, not only was Tennessee not an automatic "no," it was an automatic "yes." The residents literally had no choice if they wanted back in. So, if that vote was needed, all that was required was to wait a little bit.

The direction in which all these threads were pointing was so obvious, particularly after Johnson became veto-happy, that there were more than 70 different variants of the Fourteenth Amendment put before Congress. At the same time, it was clear that the window of opportunity was going to close. First, as memories of the war faded, the taste for transformative change was sure to wane. Second, once Southern states were readmitted, they were no longer required to vote as ordered on amendments. Add it all up, and it's no surprise that the Fourteenth is something of an omnibus amendment that covers a great deal of territory. The Republicans in Congress just weren't sure they'd have another chance. They did ultimately get one more bite at the apple, with the Fifteenth Amendment (1870), but they didn't know that at the time.

The breadth of the Fourteenth is indicated by the vast number of issues in which it's been invoked, from jus soli citizenship (e.g., United States v. Wong Kim Ark), to the right to be represented by appointed counsel if you cannot afford an attorney (e.g., Gideon v. Wainwright), to access to contraceptives (e.g., Griswold v. Connecticut), to abortion rights (e.g., Roe v. Wade; Dobbs v. Jackson Women's Health Organization), to Japanese internment (e.g., Korematsu v. United States) to voting rights (e.g., Shelby County v. Holder).

But now let us return to the main question at hand. Here is the actual passage from the Fourteenth Amendment that might (or might not) apply to Donald Trump and his band of merry co-conspirators:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.

This passage was put into the amendment for two main reasons, both of which we've already mentioned. The first is that there was an actual problem with Confederates being elected to high office. The second is that the members of Congress wanted to be on 100% firm legal ground when they rejected former Confederates who showed up with their certificates of election. Recall that jurisprudence making clear exactly which members Congress can, and cannot, refuse to seat was close to 100 years in the future.

But why is it so imprecise? There are three good answers to that question. The first is that the members did not know what form an insurrection might take in the future. For Americans today, the only true insurrection in U.S. history was the Civil War. But someone living in 1868 might well have living memory of other rebellions that were quite different from the Civil War. They might have thought about Dorr's Rebellion (1841-42), or perhaps one of the slave rebellions, like Nat Turner's Rebellion (1831). They almost certainly were thinking about various acts of resistance undertaken by the Native Americans, like the Sioux Uprising of 1862. They might also have been mindful of incidents from recent European history, like the Revolutions of 1848. The upshot is they had every reason to think that insurrection could take many forms, and it was necessary to cover for them all, as opposed to trying to implement a definition for what does and does not constitute "insurrection."

A second issue is that the courts still had plenty of Democratic appointees left over from the string of Democratic presidents who served prior to Lincoln. Meanwhile, as of 1868, Congress had already acted decisively to eject Confederate members-elect. So, at the moment the amendment was passed, most members undoubtedly preferred to reserve the enforcement of this clause to themselves. That said, they knew that a pretty Democratic and conservative judiciary, and an overwhelmingly Republican Congress, were not states of affairs that would last forever. This is why the Amendment includes no clear directions as to who gets to decide on disqualification, or even if any decision is needed at all. The members had some fairly good reasons to keep it loose, and to neither claim the power solely for themselves nor to assign it to some other entity.

Third, and finally, there were a lot of moving parts when it came to the Fourteenth Amendment, with a lot of different stakeholders needing to be accounted for. And the fact is that the trickiest and most contentious issue was the freedpeople. That's where most of the attention and energy and political capital was expended. As to the Disqualification Clause, it might have been hammered out a bit more in different circumstances, perhaps. But it also might not have passed under different circumstances.

And that, in a nutshell (admittedly, a pretty lengthy nutshell), is how the country ended up with a dictum that is simultaneously assertive and vague. In the next part, we'll talk about how the Disqualification Clause was, and was not, enforced, and why, in the years immediately following the adoption of the Fourteenth Amendment. (Z)