AuthorMazzone, Jason
PositionConstitutional Reconstruction: History and the Meaning of the Thirteenth, Fourteenth, and Fifteenth Amendments

INTRODUCTION 1436 I. REPUBLICAN GOVERNMENT IN THE HISTORY OF THE FOURTEENTH AMENDMENT 1437 A. Apportionment 1438 1. A Single Amendment Penalizing Racial Discrimination 1438 2. The Section 2 Formula 1447 3. Statutory Implementation 1452 4. A Note on the Fifteenth Amendment 1454 5. Summary 1455 B. Rights 1456 II. INCORPORATION'S MEANING 1460 A. Equal Rights of Citizenship 1460 B. Enforcement and Justiciability 1463 C. Preservation 1466 III. PLESSFREVISITED 1471 CONCLUSION 1475 INTRODUCTION

Reconstruction did not result in a new Constitution for the United States. Instead, during Reconstruction, three amendments--the Thirteenth, the Fourteenth, and the Fifteenth--were added to the nation's pre-existing Constitution. These three amendments worked significant change, but, as mere amendments, they left in place most of what was already in the document. Accordingly, understanding the meaning of the Reconstruction Amendments, and, more generally, of the Constitution after Reconstruction, requires attention to the entire document, as amended. In other words, to make sense of what Reconstruction brought means starting with the Constitution's Preamble and reading forward to the Reconstruction-era Amendments--and then, as necessary, going back again to the beginning--rather than focusing solely on the three amendments themselves. Taking that approach, this Article advances a single claim: that the Fourteenth Amendment should be understood to incorporate the Republican Guarantee Clause of Article IV. (1) The Article was prepared for a symposium to mark the publication of The Reconstruction Amendments: The Essential Documents, a collection of materials curated and edited by Professor Kurt Lash. The Article draws heavily on the materials in that collection to set forth some historical evidence for an incorporated account of the Republican Guarantee Clause. Given the constraints of the symposium format, the evidence presented is illustrative rather than exhaustive: more work will be needed to complete the historical record. The Article also explores, again in a preliminary fashion, some implications that emerge from understanding the Fourteenth Amendment to incorporate the Republican Guarantee Clause. Incorporation, the Article suggests, shifts the focus of the Republican Guarantee Clause from the interests of states as states to the interests of citizens, from broad concepts of popular sovereignty to protecting more specifically rights that citizens hold and exercise in a republican system. The incorporated Republican Guarantee Clause should be understood to require states themselves to maintain a republican form of government--as an obligation that states owe to their own citizens and to the citizenry of the nation as a whole--and to act to correct departures from republicanism in their own governing arrangements. The Republican Guarantee Clause also informs the meaning of rights protected against state interference in Section 1 of the Fourteenth Amendment: safeguards for privileges and immunities, due process of law, and equal protection of the laws, are all usefully understood with an eye to republicanism. So, too, the Republican Guarantee Clause informs the meaning of provisions of the Bill of Rights when, through Section 1 of the Fourteenth Amendment, they are applied against state governments. As to the national government, it has an obligation to protect citizenship rights that serve republican ends from state interference. Finally, the shift from forms of government to citizens' rights should alter the traditional assessment that claims under the Republican Guarantee Clause are nonjusticiable.

Part I presents some historical evidence for understanding the Fourteenth Amendment to incorporate the Republican Guarantee Clause. Part II identifies some implications that flow from the incorporated account. Part III takes a fresh look at Justice Harlan's dissent in Plessy v. Ferguson and suggests that it reflects something quite close to the account presented here of the relationship between the Fourteenth Amendment and the Republican Guarantee Clause. A brief conclusion points to some areas of future research.


    This Part draws on historical materials--particularly congressional debates--to trace the role of the Guarantee Clause in the drafting and ratification of the Fourteenth Amendment. The discussion begins, as the Thirty-Ninth Congress itself began, not with rights but with the question of apportionment: the allocation of House seats after the end of slavery, in the urgent context in which, if the Constitution's original apportionment formula in Article I was left intact, the former slave states stood to gain representation in Congress even as they treated freed slaves as outside of the political community. In the various efforts, culminating in Section 2 of the Fourteenth Amendment, to change the Constitution's apportionment formula, republican government provided a backdrop commitment, a common benchmark for discussion and debate. In this process, there emerged, necessarily, competing accounts of what republicanism in practice meant. As this Part shows, republicanism, debated in the apportionment context, took on sharpened form in the drafting and ratification of the rights-protecting provisions of Section 1 of the Fourteenth Amendment and of Congress's enforcement power in Section 5.

    1. Apportionment

      With the ratification of the Thirteenth Amendment, the former slave states stood to increase their representation in the House because there was no longer a slave population subject to the three-fifths discount of Article I of the original Constitution. (2) Further, this increase in state representation would be based on a population-newly freed slaves--the former slave states treated as outside the political community and lacking in political rights. In the Thirty-Ninth Congress, Representative Roscoe Conkling (Republican of New York) described the problem as follows:

      Four million people are suddenly among us not bound to any one, and yet not clothed with any political rights. They are not slaves, but they are not, in a political sense, "persons."

      This emancipated multitude has no political status.

      . . . The three-fifths rule gave the slaveholding States over and above their just representation, eighteen Representatives beside, by the enumeration of 1860. The new situation will enable those States when relationships are resumed, to claim twenty-eight Representatives beside their just proportion. Twenty-eight votes to be cast here and in the Electoral College for those held not fit to sit as jurors, not fit to testify in court, not fit to be plaintiff in a suit, not fit to approach the ballot box. Twenty-eight votes, to be more or less controlled by those who once betrayed the Government, and for those so destitute, we are assured, of intelligent instinct as not to be fit for free agency. (3)

      1. A Single Amendment Penalizing Racial Discrimination

        Efforts in Congress to amend the Constitution to alter the original Article I apportionment formula in light of the end to slavery began in 1865. In December of that year, three members of the House offered separate proposals to base apportionment not on each state's total population--the source of boosted power for the former slave states-but on the number of eligible voters within each state. (4) The newly free population would thus count only if also enfranchised. These three proposals were referred to the Joint Committee on Reconstruction, which, in January 1866, offered, as a Joint Resolution, its own apportionment amendment by which representation would be based upon a state's entire population (excluding Indians) with the limitation that "whenever the elective franchise shall be denied or abridged in any State on account of race or color, all persons therein of such race or color shall be excluded from the basis of representation." (5) In other words, under the Committee's approach, if a state denied anybody the right to vote on the basis of that person's race, everybody of the same race would be excluded from the population count that determined the state's number of House scats. Defending the proposal, Committee co-chair Thaddeus Stevens (Republican of Pennsylvania) announced that the amendment was needed in order to align the Constitution with the principles of the Declaration of Independence, which, he said provided the "intended . . . foundation of our Government." (1) ' According to Stevens:

        If. . . four fathersl had been able to base their Constitution on the principles of that Declaration it would have needed no amendment during all time, for every human being would have had his rights; every human being would have been equal before the law; and no oppression could have been effected except through usurpation against the principles of that Government. (7)

        Slavery, however, "precluded" the Founders "from carrying out their own principles into the organic law of this Union" and thus the Founders had to "compromise [] their principles for what they deemed a greater good." (8) With slavery now ended, Stevens announced, " [t]he time has come when we can make the Constitution what our fathers desired to make it." (9)

        Stevens's invocation of foundational principles set the stage for the debate over the Committee's proposal. Much of the ensuing discussion in Congress centered on the compatibility of the proposed amendment with the Republican Guarantee Clause--which was treated as encapsulating an unbreachable constitutional commitment. Radical Republicans who opposed the amendment argued that-besides the fact it did not mandate black suffrage--if added to the Constitution it would imply that states actually had power to deny voting rights to a portion of the population so long as they were willing to assume the specified penalty. Such power, opponents urged, was inconsistent with republican...

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