garrett epps and democracy reborn

Garrett Epps, veteran professor of law at the University of Oregon, has just come out with his long-anticipated book on the historical context out of which the Fourteenth Amendment (1868) emerged. Since this Amendment has been of critical importance to US Constitutional jurisprudence in the last 50 years, a careful treatment of the issues, people and meaning of the amendment is welcome. And Epps does not disappoint. He gives us unforgettable descriptions of some characters of the 39th Congress (1865-67) as well as full and helpful descriptions of events leading up to the work of that most important Congress. His style is accessible and even splendid at times. He has lived deeply with his subject, and his love for it is evident.

Mistakes--In General

Before I review some of the more helpful things he does to aid our understanding of the Amendment, however, I register here my disappointment that his editors and he either have not caught several seemingly picky errors or have not considered the importance of answering certain basic questions that really need to be answered in order to understand the immensely complex world of the 1860s-1870s. In fact, I consider this era so complex that any aspiring American legal historian ought to be required to cut his or her teeth on describing the rich chronology of events in this period with legal implications. If you can "get it right" for this period, any other period is a piece of cake.

Thus, I am not too disappointed that Epps hasn't completely gotten his facts correct. It happens. Here is my "picky" list for just the first three chapters. My point ought to be clear. Unless you really struggle to get the facts straight from this period, your treatment may be a little more ethereal than necessary. Get your facts clear; then you will see how well everything else seems to fall into place.

Specific Errors

Let's begin with a few that will make you say, "Bill! Stop that! Be reasonable!" Here we go.

(1) On p. 22, he says that future President Andrew Johnson was the only Southern senator to remain in Congress during the war years. Be more specific. Johnson was governor of TN from 1853-57, became Senator in Oct. 1857 and remained "at his desk" until he was appointed by Lincoln as military governor of TN in early March 1862. But this was in the 37th Congress. The 28th Congress (from 1863-65) had no representative from TN or anyplace in the South, though West Virginia (formerly part of VA) gained two seats in 1863. At least tell us how members of Congress were counted in this difficult period. Tennessee didn't get representatives back in Congress until it was readmitted as a state in July 1866. The other 10 states of the Confederacy didn't get representatives until 1868 or 1870, when they were readmitted as states.

(2) On p. 23 Epps says that Johnson arrived in TN from NC in 1825 at age 17. Well, Johnson was born on Dec. 29, 1808, so he was probably 16. Really picky.

(3) Epps is correct when he tells us that Thaddeus Stevens was 73 when the 39th Congress convened on Dec. 4, 1865. But then, a few pages later (p. 46) Epps says that earlier in his career, in 1852, he was defeated while seeking his third term in the US House. Thus "at age 61, Stevens seemed to have come to the end of an honorable...career." Stevens was born April 4, 1792. Thus, he was 60, not 61 in November 1852. Even if Epps was thinking of the last day of adjournment of Congress, Stevens still would have been 60.

Three More

(4) He describes Abraham Lincoln's gradualist plan for Reconstruction well. An important element was his "10 percent plan"--i.e., when 10% of men from a specific Southern state who voted in the 1860 Presidential election had expressed loyalty to the Union, plans for readmission as states could be commenced. Epps said that Lincoln inaugurated this plan in 1864 (p. 55). Actually it was December 1863. This is important because Congress tried to override this action by the Wade-Davis bill in July 1864, which Lincoln vetoed (pocket veto). An attention to chronology here would probably have forced him to tell us the legal effect of each action. How close were any states to readmittance before 1866?

(5) and (6) He talks on p. 62 of the "Democratic landslide" of 1863, which changed the complexion of Congress. Only problem is, there was no election in 1863. There was one in 1862 and one in 1864. Which one does he mean? He has to be more specific. The 38th Congress (elected in 1862; served in 1863-65) had 33 Republican and 10 Democratic Senators, with 5 Unconditional Unionists and 4 Unionists. The 39th Congress (1865-67) had 39 Republican and 11 Democratic Senators, with 3 Unconditional Unionists and 1 Unionist. No landslide thus in 1862, as far as I can tell. Indeed, the 37th Congress (elected 1860; served 1861-63) had 31 Republican and 15 Democratic Senators, so it looks like, in the Senate, the 38th Congress, rather than being a "landslide" for the Democrats, actually saw them lose seats, at least in the Senate. So, how does he define "landslide?"

Granted, the numbers in the House of Representatives between these years show the Republicans gaining a considerable number of seats in 1864, and losing several in 1862, so the term "landslide" to describe the 38th Congressional House races might be more to the point. But, one could have wished that he had given us some statistics to make his point. Statistics aren't boring and those who use them aren't necessarily pedantic. Indeed, unless you use them you might not fully have grasped the point you are trying to make. He probably should have given us three columns of representative numbers from the 37th-39th Congresses. It wouldn't have been hard.

(7) Let's close this essay with one other error. He speaks about the ratification of the 13th Amendment by the States throughout 1865. Interestingly enough, he never tells us why the seceded states had to approve this amendment. It didn't trigger their readmittance as states, since TN, the first state from the confederacy permitted back in the Union, didn't come back in until July 1866 (the 10 others returned in 1868 (6) and 1870 (4)). So, why did they have to vote on it? Who decided? Was there any debate? And then, since 27 states had to adopt it, he points to Alabama as the 27th state to do so (p. 64). But Alabama wasn't the 27th state to adopt it; it was the 25th, on Dec. 2, 1865. Georgia was the 27th, and it adopted it on Dec. 6, 1865.

Conclusion

I plan to say lots of good things about the book. But I always have to "clear the factual decks" first, before I do so. I don't claim that my list of mistakes here is complete. But it does make me a bit wary whenever he mentions a date. Let's move to what he does right in the book.

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