Fourteenth Amendment and committee on reconstruction and 39th Congress and john bingham and william pitt fessenden

The purpose of this and the next essay is to take you into some issues surrounding the development and interpretation of parts of the Sec. 1 of the 14th Amendment. I will divide the two essays as follows: (1) concepts you should be aware of in studying the Amendment; (2) the evolution of Sec. 1 language.

Background Issues to Understand the Amendment

I will list these as a number of individual points, even though they are all related.

1. The Amendment was drafted in the Committee on Reconstruction, consisting of 15 members (9 House/6 Senate) appointed in Dec. 1865. They reported out their Amendment by March 1866. They also formed subcommittees to deal with various issues.

2. The 1865-1866 Congress (they met annually from Dec-June or July, usually) was the 39th Congress and was not the first Reconstruction Congress. Those meeting in Dec. 1865 were elected in Nov. 1864, well before Lincoln was assassinated.

3. The "big three" issues to consider were: (a) How to let the Southern states back into the Union*; (b) On what basis representation of the South would happen (citizens or voters?) and (c) The status of the African-Americans, many of whom fought for the Union during the Civil War.

[*For example, Rep. Roscoe Conkling (R-NY) introduced on January 16 a list of requirements which should be demanded of the South as conditions for restoration. They included: (a) renunciation of the idea of secession--get the South to say that they were wrong for having seceeded; (b) repudiation of the Confederate debt--the bondholders were primarily in England and the Netherlands; (c) guarantees of civil rights to Southern Blacks; (d) disqualification of Confederate leaders from holding office. This was only one proposal. Several others, as you might imagine, were debated.]

4. The distinction was already being made in 1865 about the types of rights that African-Americans might receive. Care should be taken to distinguish between civil, political, and social rights. The first dealt primarily with legal entitlements (holding property, rights to sue and contract, rights to testify); the second concerned the right to vote; the third touched on issues such as equal access to public accommodations (hotels, the theater, railroad travel). Though some Congressmen were supportive of equal rights across all categories, the majority were not. Thus, the issue had to be broken up because of the political impossibility of securing all at once. This will be one of the important interpretive issues for the 14th A.

5. Though this is a "background" and "foreground" issue, you should be aware of the legal context in which this Amendment developed. The Confiscation Acts of 1862 divested Southerners of various kinds of "property;" the Emancipation Proclamation (effective Jan. 1, 1863) freed slaves in states outside of the Union; the 13th Amendment was passed by the States in 1864-65 and ratified by Congress in Dec. 1865; the Civil Rights Act of 1866 was being drafted in the Judiciary Committee at the same time the 14th A was being drafted in the Reconstruction Committee, and was passed over Johnson's veto in the Spring; the 14th A was approved by Congress in June 1866 but not ratified until 1868; the 15th A, on voting, went into effect in 1870; the Ku Klux Klan Act was passed in 1871; the bill providing for equality in accommodations was passed in 1875. Thus, even though we are focusing on the 14th A history, we really need to understand an era.

6. There has been a vigorous scholarly debate, to which Finkelman makes reference, regarding how to understand the pre-Civil War "climate" for African-Americans. He points out in his article (13 Temp. Pol. & Civ. Rts. LR 389 (2004)) that it was fashionable among scholars in the 1950s-1970s to characterize the North in the pre-Civil War days as equally racist as the South, though without slavery. Conservative legal thinkers (he cites Raoul Berger) then picked up on this and argued that the 14th Amendment couldn't possibly have been interested in extending equal rights in the political or social areas because of the negative climate surrounding race at the time of the Civil War. But, Finkelman now wants to revisit the characterization of the pre-Civil War North as vigorously racist. The purpose of his article is to argue that the two leading shapers of Sec. 1 (Thaddeus Stevens of PA and John Bingham of OH) were themselves committed to equal rights across the board. In addition, he tries to show that while the North did enact some punitive/racist legislation in the 1830s, by the 1840s-1850s there was a growing sense that these laws were not good. He also argues that the two issues of the passage of the Black Codes in 1865-66 and the testimomy received by the Committee on Reconstruction would have made members be very supportive of extending full protection to Blacks. Thus, Finkelman wants to "right the balance" in the historical analysis of both the context shaping the leaders of the Committee as well as the commmittee deliberations themselves.

Committee Members

7. Finally, let's introduce the members of the Committee on Reconstruction, so that you will get to know them a bit. Finkelman mischaracterizes some of them as "Southerners." Not so. Three were from border states, and three (not the same three) were Democrats. There were nine from the House and six from the Senate. First, the House members. The House members were appointed by Speaker Schuyler Colfax, R-IN, who himself had Radical leanings.

A. House Members

a. Thaddeus Stevens, R-PA, was 73 at the time. Finkelman argues persuasively that he was committed to full equality of Blacks. He was buried in an integrated cemetery near York, PA, the only such cemetery in the area.

b. Elihu Washburne, R-IL, was a veteran of the House at 49. He had been an anti-slavery Whig before the formation of the Republican Party in the mid-1850s and was a friend of Lincoln.

c. Justin Morrill, R-VT, was 55 and chair of the Ways and means Committee. He was not as "radical" as Stevens, and was not as engaged in this issue as he was in others. He is best known for the "Morrill Act" of about this time, which is the basis of why we have state land-grant universities today. I have visited his house in VT, which is very nicely preserved and gives a full review of his political and family history.

d. John A. Bingham, R-OH, was 51 and was the drafter of the flow of Sec. 1. He was beginning his fourth term in 1865, even though he had been defeated in the election of 1862. He, like Stevens, was considered a Radical Republican. He was an experienced lawyer and had just finished participating in the prosecution of those charged with the murder of Lincoln.

e. Roscoe Conkling, R-NY, was 37. His political star was just rising, and he would become one of the most powerful politicians in the US in the 1870s and 1880s. He was arrogant and intrusive, and of a more conservative bent than Bingham/Stevens.

f. George Boutwell, R-MI, was 47 and a former governor of MI. He also was a Radical Republican and was often seen as one who not only disliked what the South had done with Blacks but had personal animosity towards Southerners.

g. Henry Blow, R-MO, 48, had become wealthy operating some lead mines in MO. He was a native Virginian but was anti-slavery in his politics. The source I read says that the "ultimate freedom of Dred Scott had been due to Blow," but I don't know yet what that means...

h. Henry Grider, D-KY, was 69 and at the end of a long career. He was one of the two Democrats on the Committee. He would die before the adjournment of Congress in July, 1866.

i. Andrew Rogers, D-NJ, was only 37 and was nearing the end of a short political career, even though he lived until 1900.

B. Senate Members

a. Chair of the Joint Committee was William Fessenden, R-ME. He was a more moderate Republican (as were all of the Senators), and did not favor Johnson's Reconstruction Plan. He was 59, in poor health, but known as the most able debater in the Senate.

b. James Grimes, R-IA, was 49 and a former governor of Iowa. He, too, was a moderate, and spent a lot of his time overseeing the Senate Naval Affairs Committee. He, as well as Fessenden, voted for the acquittal of Johnson in 1868.

c. Jacob Howard, R-MI, was possibly the most radical of the Senate Republicans. He had come out in support of "Negro suffrage."

d. George Williams, R-OR, was 45 and had been chief justice of the Oregon territory. He would eventually become Grant's AG. He was a Democrat until 1864, when he skillfully changed sides and was elected to the Senate from OR. It would be an interesting paper to see what the State Archives (or OR Historical Society) has on him and his role on the committee..

e. Ira Harris, R-NY, was 63 and serving his first and only term as a senator. Roscoe Conkling defeated him when he ran for re-election. He did not make a major contribution to the committee.

f. Reverdy Johnson, D-MD, was the lone Democrat. Nearly 70 and blind, he still managed to be an active participant in all aspects of the committe work.

The next essay gives some of the history of Sec. 1.

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