Background
On January 1, 1863, President Abraham Lincoln invoked his powers as commander-in-chief to free “people held in slavery in areas designated in rebellion against the United States.” Although Lincoln’s Emancipation Proclamation had little immediate impact on the status of slaves in the Confederate States, it eventually freed millions of people by the time the American Civil War ended. After the war, white southerners responded to the prospect of living as a minority amongst former bondsmen by enacting “Black Codes” aimed at suppressing newly emancipated slaves. Left to the caprice of state governments, these laws denied blacks the ordinary civil liberties enjoyed by whites.
Congress convened following its summer recess in 1865, determined to address the plight of former slaves in the South. When the House assembled on December 4, 1865, the clerk of the House, Edward McPherson, refused to recognize representatives from the former Confederate states, citing an 1862 statute requiring congressmen to swear an oath they had never actively taken part in the rebellion against the United States government. Following a heated debate, the House majority upheld McPherson’s position, and the Senate later followed suit. Thus, except for Tennessee (whose members were seated for the second session) Congress excluded the former Confederate states from the evolution of federal Reconstruction policies during 1866 and 1867.
Joint Committee on Reconstruction
Unfettered by legislative opposition from Southern states, Congress quickly began revamping President Johnson’s Reconstruction plan, which abetted, or at least tolerated, abusive behavior toward former slaves. A little more than a week after convening, on December 13, 1865, Congress established a Joint Committee on Reconstruction to craft a more comprehensive approach to issues related to emancipation, abolition, civil rights, and reconstruction of the Union.
Civil Rights Act of 1866
As early as January 5, 1866, Illinois Senator Lyman Trumbull introduced “A Bill to protect all persons in the United States in their civil rights, and furnish a means for their vindication,” more commonly known as the Civil Rights Act of 1866. After several weeks of debate, Congress approved Trumbull’s proposal. Overriding President Andrew Johnson’s veto the Civil Rights Act of 1866 became law on April 9. The act conferred the status of citizenship on persons of every race and color, without regard to any previous condition of slavery or involuntary servitude (except for most American Indians). It also confirmed many of the same legal rights for former slaves as enjoyed by white citizens. Finally, the measure established various methods of enforcement by executive and judicial officials and imposed penalties and punishments on officials for failing to enforce the law.
Congressman John Bingham’s Proposed Constitutional Amendment
During Congressional debates leading to the enactment of the Civil Rights Act of 1866, some legislators who supported the concept of federally ensured civil rights fretted over the constitutionality of the measure. Their concerns prompted efforts to ensure civil rights by amending the Constitution rather than by simple acts of Congress. As early as December 6, 1865, Ohio Congressman John Bingham proposed a constitutional amendment establishing the authority of Congress to protect civil rights. Referred to the Joint Committee on Reconstruction on January 12, 1866, Bingham’s proposal served as the basis of what eventually became the first section of the Fourteenth Amendment.
Bingham introduced his proposal to the full House on February 26, but members tabled debate on the idea until April while Congress and the Committee entertained other Reconstruction measures. Among those were proposals to address:
- Apportionment in the House of Representatives. Ratification of the Thirteenth Amendment, abolishing slavery, rendered the Three-fifths Compromise (Article 1, Section 2, Paragraph 3 of the Constitution) obsolete. During December 1865 and January 1866, the Joint Committee considered five resolutions introduced in the House for constitutional amendments regarding apportionment. On January 20, 1866, the committee endorsed the proposal of Representative James Blaine of Maine by a vote of 13 to 1. Two days later, committee chairman Senator William Fessenden introduced the resolution in the Senate, and Congressman Thaddeus Stevens introduced it in the House. A Senate vote on March 9 failed to reach the two-thirds majority required for amending the Constitution.
- The political status of former Confederate officials. On the opening day of the session (December 4, 1865), Massachusetts Senator Charles Sumner introduced a measure that, in part, would prohibit persons who were not “of constant and undoubted loyalty” from holding federal and state offices. A few weeks later, in the House, Pennsylvania Representative John Broomall proposed that Congress should “forever exclude from all political power . . . active and willing participants in the late usurpation.” Ohio Congressman Rufus Spalding introduced a similar measure on January 5, 1866. The House submitted those proposals to the Joint Committee for consideration.
- The disposition of public debt assumed during the Civil War. On the second day of the session (December 5, 1865), Pennsylvania Congressman Samuel J. Randall introduced a resolution affirming that “the public debt created during the late rebellion was contracted upon the faith and honor of the nation; that it is sacred and inviolate, and must and ought to be paid.” The House overwhelmingly endorsed Randall’s proposal by a vote of 162-1. On the same day, Pennsylvania Congressman Thaddeus Stevens introduced a proposal repudiating the “debt of the so-called Confederate states.” The House referred both measures to the Joint Committee. The committee members drafted a proposed constitutional amendment incorporating both resolutions. The committee submitted a proposed amendment that the full house approved on December 19, 1865. The Senate never acted on the house measure because the enactment of the Fourteenth Amendment superseded it.
Congressman Thaddeus Stevens’ Proposed Constitutional Amendment
Attempting to unify prospective recommendations issued by the Joint Committee, Congressman Thaddeus Stevens proposed combining the various proposals into a single constitutional amendment on April 21, 1866. A week later, on April 28, the committee completed drafting what would become the Fourteenth Amendment to the Constitution.
The proposed amendment contained five sections, four of which paralleled the separate resolutions the Joint Committee was considering.
Section One
Section One established that:
- “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside”;
- “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”;
- No state “shall deprive any person of life, liberty, or property, without due process of law,” and that;
- No state “shall deny to any person within its jurisdiction the equal protection of the laws.”
Section Two
Section Two addressed apportionment. Superseding the Three-fifths Compromise, the proposed amendment proclaimed that “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.” In short, the law would count all men, black or white, equally. Adding teeth to the measure, this section warned the various states that any attempts to abridge the right of male inhabitants to vote in federal elections would lead to a reduction in congressional representation.
Section Three
Section Three excluded many former Confederate officials from holding public office. Specifically, this section prohibited former Congressmen, officers of the United States, and state officials who “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof,” from serving as “a Senator or Representative in Congress, or elector of President and Vice President” or from holding “any office, civil or military, under the United States, or under any state.”
Section Four
Section Four verified the intent of Congress to guarantee repayment of the public debt incurred during the Civil War. The affirmation specifically included “the payment of pensions and bounties for services in suppressing insurrection or rebellion.” Concurrently, Section Four repudiated any debts assumed by the Confederation or any of the Confederate States, or any claims for “the loss or emancipation of any slave.”
Section Five
The Joint Committee also recommended an enforcement clause much like that attached to the Thirteenth Amendment. Section Five of the proposed Fourteenth Amendment decreed that “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
Congressional Approval
Thaddeus Stevens introduced the Joint Committee’s proposed constitutional amendment to the full House on April 30, 1866. Stevens also reported a recommendation that Congress enact legislation requiring Southern states to ratify the proposed Fourteenth Amendment as a condition for being readmitted to the Union. The House members began floor debate the committee’s proposal on May 8. On May 10, 1866, the House endorsed the proposed amendment as House Resolution 127, by a vote of 128 to 37.
On May 23, Michigan Senator Jacob M. Howard introduced H.R. 127 on the Senate floor. After two weeks of debate over various changes, on May 31, 1866, the Senate endorsed a revised version of the house resolution by a vote of 33 to 11. On June 13, the House voted to adopt the Senate version of the proposed amendment by a vote of 120 to 32. Both votes were well above the two-thirds requirement for proposals to amend the Constitution.
Ratification
On June 25, 1866, Connecticut became the first state to ratify the Fourteenth Amendment, but the ratification process was not without controversy. When the process began, there were thirty-six states in the Union. Nebraska joined in 1867. The Constitution required three-fourths of the thirty-seven states to approve the proposed amendment for it to become law. Between October 27, 1866, and March 23, 1867, thirteen Southern and Border States (Texas, Georgia, Florida, Alabama, North Carolina, Arkansas, South Carolina, Kentucky, Virginia, Louisiana, Delaware, Maryland, and Mississippi) voted against ratification. Of the remaining twenty-four states, twenty had approved the amendment by March 2, 1867.
On that date, Congress passed the first Reconstruction Act over President Andrew Johnson’s veto. That act disbanded the sitting governments of Virginia, North Carolina, South Carolina, Georgia, Mississippi, Alabama, Louisiana, Florida, Texas and Arkansas and divided the South into five large districts under military control. The act further required the Southern states to create new governments and ratify the Fourteenth Amendment before being readmitted to the Union.
By January 15, 1868, two more states (Massachusetts and Nebraska) voted for ratification, raising the total to twenty-two states—still short of the required twenty-eight states. On that date, the Ohio legislature voted to rescind the state’s ratification, but Congress ignored the rescission. On March 16, 1868, Iowa added its approval. On March 24, New Jersey’s legislature rescinded its ratification, but again, Congress ignored the rescission. By July 9, 1868, five reconstructed Southern states (Arkansas, Florida, North Carolina, Louisiana, and South Carolina) had approved the amendment, thus reaching the required twenty-eight states (counting Ohio and New Jersey). On July 28, 1868 (even though Ohio and New Jersey had rescinded their approval), Secretary of State William Seward verified the ratification results and the Fourteenth Amendment became law.
After Seward confirmed ratification, Oregon attempted to rescind its approval in 1868, but to no avail. By 1870, the five remaining reconstructed Southern states (Alabama, Georgia Virginia, Mississippi, and Texas) approved the measure as their only means to be readmitted to the Union.
The Twentieth Century saw a series of symbolic approvals of the Fourteenth Amendment that had no effect on the legal standing of the measure. Delaware ratified the amendment in 1901. Maryland and California followed suit in 1959. Oregon reversed its rescission in 1968. Kentucky ratified in 1976.
Shortly after the dawn of the Twenty-first Century, New Jersey reversed its rescission vote and approved the amendment. On March 12, 2003, the Ohio General Assembly enacted a resolution to reverse Ohio’s rescission. Governor Robert Taft approved the resolution on September 17, 2003, making Ohio the last state to ratify the Fourteenth Amendment.