Republican Reconstruction and Section Two of the Fourteenth Amendment

Published date01 December 1970
Date01 December 1970
DOI10.1177/106591297002300411
AuthorGeorge P. Smith
Subject MatterArticles
829
REPUBLICAN
RECONSTRUCTION
AND
SECTION
TWO
OF
THE
FOURTEENTH
AMENDMENT
GEORGE
P.
SMITH
California
State
College
at
Los
Angeles
T
IS
WELL
KNOWN
that
the
Republicans
intended
to
perpetuate
their
~
party’s
ascendency
after
the
Civil
War.’-
Section
Two
of
the
Fourteenth
Amendment2
was,
of
course,
an
important
part
of
their
plan.
Where
that
particular
section
of
the
amendment
should
have
fitted
into
the
party’s
blueprint
and
how
it
was
to
do
so,
has
not
yet
been
adequately
sketched.
Specifically,
then,
this
study
will
attempt
to
determine
just
what
the
framers
of
Section
Two
of
the
Fourteenth
Amendment
thought
it
would
accomplish.
The
basic
research
source
for
such
an
inquiry
is
the
Congressional
Globe.3
It
is
not,
however,
the
only
source.
For
the
era’s
general
history
is
necessarily
rele-
vant
to
the
study
of
the
law
which
issued
from
it.
To
avoid
repetition
of
abun-
dantly
available
materials,
however,
a
passing
familiarity
with
that
history
will
be
assumed.4
Suffice
it
to
say
the
Republicans
built their
hopes
upon
a
projected
coali-
tion
between
their
power
in
the
North
and
the
&dquo;loyal&dquo;
votes
in
the
South.
Of
course,
the
&dquo;loyal&dquo;
Southern
vote
was
to
be
drawn
primarily
from
the
approxi-
mately
650,000
adult,
male
freedmen
living
there.
The
nature
of
this
relationship
between
the
potential
Negro
vote
in
the
South
and
Republican
ascendancy
will
emerge
more
clearly
as
we
progress.
For
it
was
the
pivotal
point
around
which
much
of
the
congressional
debate
over
Section
Two
revolved.
The
debates
on
the
subject,
which
eventually
led
to
the
section
as
it
is
in
the
amendment
today,
may
be
seen
as
expressed
through
four
dimensions.
The
intro-
duction
of
a
bill
allowing
Negro
suffrage
in
the
District
of
Columbia
precipitated
the
debate.
Although
the
bill
passed
in
the
House,
the
Senate
did
not
give
it
serious
consideration
during
the
Congress’
first
session.
The
second
dimension
of
debate
1
Claude
G.
Bowers,
The
Tragic
Era
(Cambridge:
Riverside
Press,
1962),
p.
115.
John
Hope
Franklin,
Reconstruction
After
the
Civil
War
(Chicago:
U.
of
Chicago
Press,
1961),
p.
97.
Joseph
B.
James,
"The
Framing
of the
Fourteenth
Amendment,"
Illinois
Studies
in
the
Social
Sciences
(Urbana:
Illinois
U.
Press,
1956),
Vol.
37,
p.
20.
2
The
Section
reads
as
follows:
"Representatives
shall
be
apportioned
among
the
several
States
according
to
their
respective
numbers,
counting
the
whole
number
of
persons
in
each
State,
excluding
Indians
not
taxed.
But
when
the
right
to
vote
at
any
election
for
the
choice
of
electors
for
President
and
Vice
President
of
the
United
States,
Representa-
tives
in
Congress,
the
Executive
and
Judicial
officers
of
a
State,
or
the
members
of
the
Legislature
thereof,
is
denied
to
any
of
the
male
inhabitants
of
such
State,
being
twenty-one
years
of
age,
and
citizens
of
the
United
States,
or
in
any
way
abridged,
except
for
participation
in
rebellion,
or
other
crime,
the
basis
of
representation
therein
shall
be
reduced
in
the
proportion
which
the
number
of
such
male
citizens
shall
bear
to
the
whole
number
of
male
citizens
twenty-one
years
of
age
in
such
State."
3
The
Congressional
Globe,
39th
Congress,
1st
Sess.,
1865,
Vols.
1-5.
Hereinafter
all
refer-
ences
to
the
Globe
will
be
to
this
source
unless
specifically
indicated
otherwise.
Since
the
Fourteenth
Amendment
was
framed
during
this
first
session
of
the
39th
Congress
(December
5,
1865-July
28,
1866)
this
study
is
limited
to
that
session.
4
In
addition
to
the
works
cited
in
fn.
1
supra,
see:
Paul
H.
Buck,
The
Road
to
Reunion
1865-1900
(New
York:
Vintage
Books,
1937);
William
A.
Dunning,
Reconstruction,
Political
and
Economic
1865-1877
(New
York:
Harper
&
Brothers
TB
1073,
1907);
George
F.
Milton,
The
Age
of
Hate
(New
York:
Coward-McCann
Inc.,
1930) ;
Eric
L.
McKitrick,
Andrew
Johnson
and
Reconstruction
(Chicago:
U.
of
Chicago
Press,
1960).
830
involved
intensive
consideration
of
Section
Two
in
an
early
form.
This
proposal,
however,
was
debated
as
a
single
amendment
to
the
Constitution.
The
third
dimension
emerged
out
of
the
consideration
of
the
multi-sectioned
Joint
Resolution
that
became
the
Fourteenth
Amendment.
And
the
fourth
dimension
consisted
of
general
remarks
made
during
speeches
covering
Reconstruction
generally.
In
the
Senate
they
were
liberally
salted
throughout
almost
any
speech.
In
the
House
such
remarks
were
usually
confined
to
evening
or
Saturday
speeches.
Although
most
of
the
information
set
forth
and
relied
upon
here
will
be
taken
from
the
first
three
sources,
the fourth
source
will
be
included
as
well.
For
it is
the
debate
on
the
general
subject,
rather
than
the
debate
on
a
specific
item,
which
tells
us
what
the
men
in
that
Congress
thought.
To
consider
only
the
debate
when
a
proposal
is
directly
on
the
floor,
builds
in
an
assumption
that
such
debate
encompasses
all
the
important
statements
made
on
a
particular
subject
during
the
Congress
being
studied.
Considering
the
complexity
of
most
major
legislation
and
the
mechanics
of
debate
in
even
so
small
a
body
as
the
Senate,
such
an
assumption
is
naive
at
best.
A
final
caveat
is
in
order.
We
will
not
deal
with
two
questions
that
are
of
indirect
importance
to
the
subject
under
consideration.
Whether
the
South
was
&dquo;in&dquo;
or
&dquo;out&dquo;
of
the
Union
will
not
be
considered.
It
was,
of
course,
the
subject
of
extensive
debate
during
the
39th
Congress.
Not
only
is
the
question
not
truly
germane
to
the
inquiry
here,
but
its
answer
rests
upon
a
logically
prior
problem -
the
nature
of
the
American
Union -
which
may or
may
not
be
finally
resolvable
at
all.
Second,
we
will
not
consider
the
validity
of
the
procedures
through
which
the
amendment
was
adopted.
It
has
been
a
subject
of
some
dispute
but
is
not
relevant
to
the
question
considered
here.
THE
CHARACTER
OF
THE
39TH
CONGRESS
A
short
consideration
of
the
character
of
the
39th
Congress during
its
early
months
will
be
useful.
The
Fourteenth
Amendment
was
a
product
of
the
first
few
months
of
that
Congress
and
necessarily
reflects
its
character
and
tone.
It
will
be
recalled
that
the
Congress
convened
on
December
5,
1865
-
six
months
after
Lincoln’s
death
and
the
cessation
of
hostilities.
The
war
had
cost
a
total
of
about
six
billion
dollars
and
approximately
500,000
lives.
It
had
been
generated
by
bitter
sectional,
cultural,
economic,
political,
and
ideological
differences
between
the
North
and
South.
Action
by
Congress
from
1861
to
1865
had
taken
a
distinctive
turn
because
of
the
war,
the
absence
of
delegates
from
the
Southern
states,
and
the
ascension
to
positions
of
power
by
men
young
in
congressional
age
and
abolitionist
in
their
views.5
The
Apportionment
Act
of
1862
set
the
membership
of
the
House
of
Repre-
sentatives
at
241
seats.6
Fifty-seven7
seats
had
been
allocated
to
the
eleven seceded
states,
and
of these
seats
fifteen
were
assigned
according
to
the
three-fifths
formula
5
See:
Jacobus
tenBroek,
Antislavery
Origins
of
the
Fourteenth
Amendment
(Berkeley:
U.
of
California
Press,
1951),
Parts
III
and
IV.
6
12
Stat.
353.
7
Some
confusion
exists
in
the
Globe
as
to
whether
57
or
58
is
the
correct
figure.
In
view
of
its
implications
here,
the
smaller
figure
was
utilized.

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