Garrette Epps on the Fourteenth Amendment III

Any attempt to divine the meaning of the 14th Amendment must take seriously the stages of its evolution in the Committee on Reconstruction ("COR"). Indeed, no one probably was sure of the shape of a new constitutional amendment which might come from the COR when it convened early in Jan. 1866, but produce a new amendment it did. This amendment is, without question, the most important one in the last fifty years of constitutional scholarship and interpreation. Thus, a patient attempt to probe the iterations of this amendment in the COR not only helps us recognize the rather wispy hermeneutical foundation of contemporary constitutional interpretation but the complex historical factors at work in early 1866. Epps' hyaline treatment of these stages is exhilarating.

First Stage--The Issue of Representation

The issue of "representation" in the post-Civil War era was this: how do you "count" the African-Americans, clustered primarily in the South, for purposes of congressional representation in the Southern states? The Constitution had chosen a 3/5 ratio when approved in the previous century--i.e., a Black person was considered 3/5 of a white person for purposes of representation. This eventuated in Southern power disproportionate to the number of their free population. But the conundrum facing the COR was that if they counted every Black person as a citizen for representation purposes, the number of representatives in the South would skyrocket, the "Old South" would take over the post-Civil War government and be able to impose an even stricter slavery regimen than before the War. Well, if the COR declared that each state require that Blacks be given the franchise, they would run into two additional problems: (1) the states, historically, had been the arbiters of who voted in that state; and (2) the states might then come up with all kinds of devices to limit the Black franchise without actually questioning its legality (e.g., poll taxes or selective "literacy" tests). So, as Epps well tells us, by Jan. 20, 1866, the COR had come up with the following proposed language for an amendment:

"Representatives and direct taxes shall be apportioned among the several States which may be included within this Union according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed; provided that whenever the elective franchise shall be denied or abridged in any State on account of race or color, all persons of such race or color shall be excluded from the basis of representation."

This suggestion was a "carrot and stick" approach to the South. It suggested that representation would be calculated according to the numbers of people in the state (leaving aside the question of citizenship). This would be a net gain for the South. But then, the hammer--if they excluded people from the franchise according to race or color, then they would lose representatives, because even the 3/5 ratio of the original constitution would be overridden--all people of that race would be excluded from the "basis of representation" (the number of people counted to determine representatives). This suggestion looked like it would pass, even though those on both the far right and left opposed it--until, that is, Sen. Charles Sumner, in high dugdeon, savaged it with a speech on the Senate floor early in March 1866. It didn't pass--but the language never faded from the COR's thoughts.

Second Stage--Enter John A. Bingham

Even before the language of representation was "dead in the water," John Bingham introduced language that would be much more far-reaching regarding citizenship and rights for the newly-freed slaves. Though Bingham had repeatedly brought up this language, he was rebuffed until late February. The reason for his ability to introduce it on Feb. 26, probably, was that Johnson had just humiliated himself by an arrogant speech on Feb. 22, and that an "opening" for the more Radical Republicans was thereby created. Bingham's proposed amendment read:

"The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several states, and to all persons in the several states equal protection in the rights of life, libery, and property."

Epps does a wonderful job in unpacking the language of this suggestion. The highly loaded terms "privileges and immunities," "equal protection" and "necessary and proper" were either phrases from earlier parts of the Constitution or would be infused with new meaning for the new historical moment in 1866. Epps convincingly shows that Bingham had in mind a Congressional power to enforce the bill of rights "as it stands in the Constitution today." A more massive transfer of power from the States to the federal government can hardly be contemplated. As Epps then tells the story:

"On February 28, the House voted 110 to 37 to postpone further consideration of his amendment until April 2. Bingham's amendment disappeared forever; but its ghost would reappear in the language of the Fourteenth Amendment..." (p. 172).

Third Stage--Robert Dale Owen's Proposal

I enjoyed no section of his book more than his wonderful descriptin of Robert Dale Owen's forty years of progressive reform interests before he submitted the language of a proposed amendment to his friend, Thaddeus Stevens. Owen had been a US Rep. at one point, and so his entry into the process regarding what would become the 14th Amendment was not particularly unusual.

I follow Epps' treament. Owen's draft amendment had five sections: (1) The first barred any state (and the feds) from discriminating "in the civil rights of persons, because of race, color, or previous condition of servitude." (2) The second section granted black Americans the vote after July 4, 1876 (to give time to "educate" them in democratic ways). (3) Section 3 discussed the "basis of representation," removing all freed slaves from it, thus preventing a Southern white takeover of Congress. (4) Section 4 barred states and the feds from paying debts incurred by the states in rebellion. Finally, (5) Section 5 echoed the 13th Amendment's words, giving Congress enforcement power "by appropirate legislation."

Much, much more could be said about every stage in this proces, but enough has been said for now. We see how words and ideas were very precisely introduced and considered, even as no agreement really arose on almost any issue relative to the freed slaves. It was a fascinatingly complex time, where the clock was moving as inexorably towards action as it was during the Civil War.

Let's now turn to a thing that enabled the "rise" of the Radical Republicans--Johnson's foolish speech on Feb. 22, 1866.

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