Republicanism on the outside: a new reading of the Reconstruction Congress.

• Author: Korobkin, Daniel S.

1. INTRODUCTION

   The irregular process under which the Fourteenth Amendment was adopted has long been the source of controversy among legal historians. (2) The Thirty-Ninth Congress, which met during the two years directly following the end of the Civil War and the assassination of President

   Lincoln, amended the Constitution pursuant to its responsibility to "guarantee to every State in [the] Union a Republican Form of Government." (3) One historian, Bruce Ackerman, argues that the adoption of the Fourteenth Amendment did not conform to the requirements of Article V of the Constitution. (4) Article V, however, is properly read in the context of the Republican Guarantee Clause. (5) Furthermore, as articulated by Akhil Reed Amar, the Republican Guarantee Clause is properly understood against the backdrop of a "geostrategic vision." (6)

   This Article promotes a "republican" reading of Reconstruction, including the Fourteenth Amendment, during the Thirty-Ninth Congress. The reading invokes not only what I call "republicanism on the inside"--equal citizenship, popular sovereignty, and other traditional republican principles--but also what I call "republicanism on the outside"--the structural stability and geostrategic security that flow from republican government. The Reconstruction Congress viewed the Republican Guarantee Clause not solely as a vanguard of individual political rights, but also, and perhaps more importantly, as a guardian of the United States itself. Under the republican reading, Congress did its best to follow the Constitution, not to subvert it.

   This Article also enters into an ongoing legal-historical debate over the constitutional legitimacy of the Reconstruction Congress. Bruce Ackerman has taken the position that congressional activity during the Reconstruction era can only be defended by a theory of constitutional "moments." Akhil Amar, meanwhile, invokes the Republican Guarantee Clause to defend the constitutionality of the Thirty-Ninth Congress, arguing generally that the Republican Guarantee Clause ought to be interpreted in "geostrategic" terms and not simply in reference to individual rights. This Article will definitively demonstrate, with references to congressional debates, that the members of the Thirty-Ninth Congress viewed republicanism as a national security concept. This theory of republicanism, which I call "republicanism on the outside," explains and justifies the Reconstruction era activity of the Thirty-Ninth Congress when no rights-based theory of republicanism would suffice.

   This Article proceeds in four parts. Part I reviews the history of, and debate surrounding, the adoption of the Fourteenth Amendment. Part II outlines a theory of the Republican Guarantee Clause, including the dual framework of republicanism on the inside and republicanism on the outside. Part III shows how this theory animated the Thirty-Ninth Congress in its first session, as it closed its doors to representatives and senators from the former confederate states and proposed what would in time become the Fourteenth Amendment. Part IV discusses how the same theory applied to the second session of the Thirty-Ninth Congress as it enacted the First Reconstruction Act of 1867.

2. STRANGE HISTORY: "FORMALIST DILEMMAS" (7) OF THE FOURTEENTH AMENDMENT

   It is widely recognized that the circumstances surrounding the adoption of the Fourteenth Amendment were highly irregular. (8) From the first day of the Thirty-Ninth Congress, would-be representatives and senators sent from the former confederate states were excluded. (9) For months, a number of Democrats called for the admission of these legislators from former confederate states. (10) But legislators from ten former confederate states remained barred from Congress throughout both sessions of the Thirty-Ninth Congress, with only Tennessee's delegation gaining admission late in the first session. (11)

   During this first session, both chambers of Congress debated and officially proposed what would later become the Fourteenth Amendment. (12) Section 1 of the proposed amendment contained the citizenship, privileges and immunities, due process, and equal protection clauses. Section 2 effectively cancelled the Three-Fifths Clause of Article I, but conditioned the expected increase in representation for Southern states on the enfranchisement of blacks. Section 3 disqualified former rebels from future office-holding, while Ssection 4 repudiated the confederate debt. Finally, Section 5 gave Congress the power to enforce the foregoing provisions. (13)

   During its second session, the Thirty-Ninth Congress became frustrated when ten of eleven excluded states refused to ratify the Fourteenth Amendment. (14) There was some internal debate within the Republican Party, however, over whether the excluded states' votes were needed for ratification. (15) In response to this debate, Congress moved to ensure that the rebel states would reconsider their rejection of the amendment. The First Reconstruction Act, enacted the final day of the Thirty-Ninth Congress over President Johnson's veto, (16) imposed martial law on the South and conditioned readmission of each state on its ratification of the Fourteenth Amendment. (17) Readmission was further conditioned on the addition of race-blind suffrage to each state's constitution and congressional approval of each constitution. (18)

   Bruce Ackerman contends that these irregularities are so great that the Fourteenth Amendment cannot possibly be considered valid under Article V of the United States Constitution. (19) First, Article V's requirement that two-thirds of each chamber of Congress agree to propose an amendment was met only because the Southern states were denied representation. If congressmen from the eleven former confederate states had joined those from the twenty-six loyal states, the Fourteenth Amendment would never have left Congress. (20) Second, Congress's enactment of the First Reconstruction Act conditioned the rebel states' readmission to Congress on their ratification of the Fourteenth Amendment, essentially forcing the states to ratify the amendment through illegal coercion. (21) Just as Congress would never have mustered the supermajorities necessary to propose the amendment had it not barred Southern representatives from admission, the three-fourths threshold necessary for ratification of the proposed amendment would never have been achieved had Congress not forced the Southern states to ratify it almost literally at gunpoint. Third, if one adopts the position that the Southern states' participation in the adoption of the Fourteenth Amendment was unnecessary due to their treason against the Union, this position merely capitulates to the "secessionist logic" rejected by President Lincoln and the Republican Congress throughout the war. (22) Fourth, this position cannot be reconciled with the procedures adopted for the Thirteenth Amendment: if the Southern states "counted" for the ratification of the Thirteenth Amendment, why did they not count for admission to Congress or the ratification of the Fourteenth Amendment? (23)

   Professor Ackerman does not believe that Congress's failure to conform to Article V procedures invalidates the Fourteenth Amendment, (24) as his theory of constitutional interpretation holds that the Constitution can be legitimately amended outside of Article V, and even non-textually at times. (25) But for textualists like Akhil Amar, there are only three options: explain the strange history of the Fourteenth Amendment as legal under Article V; declare the Fourteenth Amendment null and void; or find a new theory of constitutional interpretation. Professor Amar prefers the first approach, and he briefly answers Professor Ackerman's claims in America's Constitution: A Biography. (26)

   According to Professor Amar, the Southern states were properly excluded from representation in the Thirty-Ninth Congress because their "representatives" were elected by unrepublican governments. (27) Congress is the "Judge of the Elections, Returns and Qualifications for its own Members." (28) If these members were elected by all-white constituencies in violation of the Republican Guarantee Clause, Congress had the right to not seat such members and to continue on without them. (29) Congress also had the right to condition readmission on ratification of the Fourteenth Amendment, as the amendment itself was essential to the achievement of republican government guaranteed by the Constitution. (30) Furthermore, the republican government theory is not inconsistent with the history of the Thirteenth Amendment, because if unrepublican white governments ratified a pro-black amendment, it is virtually undeniable that republican governments would have done so as well. (31) Lastly, the denial of representation to unrepublican governments does not buy into the "secessionist logic," so long as one is careful to distinguish between a state that is out of the Union entirely--the secessionist position--and a state which remains in the Union but whose government has been destroyed and must be restored by Congress. (32)

   Professor Amar's defense of the Fourteenth Amendment demands a more thorough explanation of both the Republican Guarantee Clause and the behavior of the Thirty-Ninth Congress. The remainder of this Article defends a republican understanding of the Thirty-Ninth Congress in more detail. Before turning to the debates and acts of the Thirty-Ninth Congress, however, I will first explain the theory of republicanism that I use to analyze the Reconstruction Congress.

3. THE REPUBLICAN GUARANTEE

   The Republican Guarantee Clause comprises less than one sentence in the Constitution, and a vague one at that: "The United States shall guarantee to every State in this Union a Republican Form of Government...." (33) What is a "republican" government, and why was it made a part of the Constitution? The theory that animated both the...