Representation After the Civil War
Bill Long 8/10/05
Working towards the 14th Amendment
One of the neglected, because outdated, sections of the 14th Amendment is the second. It deals with the issue of how the Southern States will be represented in Congress after they are readmitted to the Union. This readmittence took place largely from 1868-1870; the topic was therefore a "front burner" one when Congress convened in December for the first time since the cessation of hostilities in April 1865.
Congressional representation in the 39th Congress (Dec. 1865-July 1866) consisted of Senators and Representatives from 25 Northern and border states. Several of the 11 CSA states sent their chosen representatives to the 39th Congress, but the House, under the unofficial leadership of Radical Republican Thaddeus Stevens (until Schuyler Colfax of IN was elected Speaker), forbade the Clerk of the House to recognize the credentials of the Southern delegates. Hence, this Congress, as with the 37th and 38th, was mostly Republican (about 4:1 in the Senate and 3:1 in the House). When Stevens pushed through a resolution authorizing the Joint Committee on Reconstruction, a bill proposed and voted on the day before President Johnson gave his state of the Union address (Dec 4; Dec 5), two of the nine Representatives on it would be Democrats, while only one of the six Senators would be a Democrat. Thus, the Republicans had a pretty free hand in shaping the legislation and approach to Reconstruction that the nation would follow.
This observation must be tempered, however, by the dual realization that President Johnson, from Tennessee, was not at all taken by the plans of the Radical Republicans (who wanted to raise the bar for readmission of the South) and that there was a fairly sizable split within the Republical ranks themselves on Reconstruction. As an illustration of the first, President Johnson developed a plan where amnesty would immediately be granted to poor and middling Southerners while only the most wealthy (with $20,000 or more in assets) would have to come to him, cap in hand, for personal pardon/amnesty. This bespoke a kind of poetic justice for Johnson, for he always had felt put upon by the wealthy planter class in his native Tennessee. The Radicals wanted severe restrictions to be placed on allowing former "rebel" leaders or supporters of the "rebellion" back into leadership roles. As an indication of the second point, one only has to realize that the chairman of the Joint Committee, Senator Fessenden from ME, was a fairly outspoken opponent of the Radicals. Whereas they would push for Congressional support for black suffrage, the more moderate Republicans advocated a "go-slow" policy.
The Subject is Representation
But the focus of this and the next two essays is how Stevens thought about the problem of Southern Representation in Congress after the War. He was probably the most influential US Representative in Washington, D.C. and his carefully-worded speech, printed in the Congressional Globe for December 18, 1865 (pp.72-75) gives us a window into the first stages of roiling debate on this issue which finally crystallized in the 14th Amendment. In addition, since the Joint Committee didn't actually begin to meet until early January 1866, Stevens' speech in December may be seen as a sort of "advanced declaration" of where he and other Radical Republicans stood on the issue at the time.
Part of Stevens' speech was an analysis of the legal position of the South at the conclusion of hostilities, while the balance of it was his practical proposal for representation. In a nutshell, his proposal was that the Southerners should be "counted" and therefore represented according to the number of male voters in the region (and not according to the "federal" figures, i.e., the census figures). Since, as he saw it, black men would largely if not exclusively vote Republican, and since black men represented at least 30%, in many states, and up to 50% in a few, of the Southern male voting-age population, the Republicans would be assured of continual dominance in Washington D.C. But, in order not to get ahead of ourselves, let's first consider his legal arguments.
Was the South Still Part of the United States?
Stevens is not going to give an unequivocal answer to this question, though the testimony he elicits from legal sources as well as Southern documents (e.g., minutes from the South Carolina secession debate and vote in early 1861) seems to support the notion that the Confederate States actually were, in law, a belligerent power that was subdued by an enemy power (the North). He posed the issue in this way: "The President assumes...that the late rebel States have lost their constitutional relation to the Union.." On the other hand, it may be that they are still within the Union "but are only dead carcasses lying within the Union." But ultimately the question didn't matter for Stevens. In both cases "it is very plain that it requires the action of Congress to enable them to form a State government and send representatives to Congress.
If they had excised themselves, the Constitutional provision that would apply is in the Fourth Article: "New states may be admitted by the Congress into this Union." However, if the Southern states were simply defunct members of the Republic, then the Guarantee Clause (Art. 4, sec. 4) applied to them: "The United States shall guaranty to every State in this Union a republican form of government." The real point he is trying to establish in the first half of his speech is that it is the Congress in toto, with the consent of the President, that will allow the Southern states to "rejoin." Neither the President himself, nor either of the two Congressional Houses by itself has the power to restore the states on their own. By arguing for Congressional priority in allowing States to return he was directly attacking the President's policy of executive clemency, which was his modus operandi during the Congressional recess in Summer/Fall 1865.
But it was Stevens' practical arguments about the number of representatives from the South that got the issue off the ground. The next essay discusses the problem of representation more specifically and is followed by an essay on Stevens' suggestion.
Copyright © 2004-2008 William R. Long