Tuesday, June 4, 2019

The Conundrum of the 14th Amendment

Were the former Confederate states welcomed back into the American family after the Civil War?  In President Andrew Johnson's view, they were:

At the end of May 1865, President Andrew Johnson announced his plans for Reconstruction, which reflected both his staunch Unionism and his firm belief in states’ rights. In Johnson’s view, the southern states had never given up their right to govern themselves, and the federal government had no right to determine voting requirements or other questions at the state level.  Apart from being required to uphold the abolition of slavery (in compliance with the 13th Amendment to the Constitution), swear loyalty to the Union and pay off war debt, southern state governments were given free reign to rebuild themselves.
https://www.history.com/topics/american-civil-war/reconstruction

So, in this view, I will call it the Johnsonian view, the only real requirement was that the states ratify the 13th Amendment, which abolished slavery, but which did not make the former slaves citizens and didn't give them any rights.  Johnson encouraged the southern states to form governments, which however were not recognized by Congress.  The 13th Amendment was ratified by the southern states of: Virginia, Louisiana, Tennessee, Arkansas, South Carolina, Alabama, North Carolina, and Georgia.  Only 27 states were needed to ratify because Nebraska did not become a state until 1866. Florida ratified it a few days it was officially approved. The southern states that refused to ratify the 13th Amendment were: Texas, Kentucky and Mississippi.  But it didn't matter because it was already part of the Constitution.

However, Congress, controlled by the Republicans, passed the Reconstruction Acts, which imposed military governments on the South and it also passed a law on March 2, 1867, requiring that a former Confederate state must ratify the Fourteenth Amendment before "said State shall be declared entitled to representation in Congress".  I will call this the Radical Republican view.

So we are looking at the seven recalcitrant states (Arkansas, Florida, North Carolina, South Carolina, Louisiana, Alabama and Georgia).  Were they accepted back into the family because they ratified the 13th Amendment?  Or were they rejected and deserved to be ruled by the military?

The conundrum was that the 14th Amendment was essentially coerced on these seven states and it wasn't their voluntary act.  Maybe you could say that these seven states weren't really part of the union, and along with the other 3 (Texas, Virginia, and Mississippi), they were conquered territory to be ruled by the military.

If you subtract out the 10, then there were only 27 states (including Nebraska).  Three-fourths of 27 is 21.  But the 14th Amendment had been rejected by Oregon, New Jersey, Ohio, Kentucky, California, Delaware, and Maryland.  So only 20 of the 27 states voted for it (including Nebraska).  That isn't enough to pass.

Now obviously after the reconstructed southern states were reconstructed enough and ratified it, there were enough states to get to the 3/4 mark.  But it does appear that the 14th amendment was never properly ratified.  

The conundrum is, if the state was welcomed back as part of the family, then respect its vote.  If the state wasn't welcomed back, then exclude its vote.  Either way, there weren't enough votes to pass the 14th Amendment until sometime in the 1870s.  The Supreme Court has never ruled on this.  Interesting.

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