The dubious origin of the fourteenth amendment

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The scene shifts back to Washington. The Radicals have a majority, by over a two-thirds vote, in the “rump” Congress from which all representation of the ten Southern States is excluded. They accomplish the passage of the Reconstruction Act of March 2, 1867.30 This Act had, as one of its major objectives, the attainment of ultimate ratification of the Fourteenth Amendment through compelling and coercing ratification by the ten Southern States which had rejected it.

The Act dealt with these ten Southern States, referred to as “rebel States” in its various provisions. It opened with a recital that “no legal State government” existed in these States. It placed these States under military rule. Louisiana and Texas were grouped together as the Fifth Military District, and placed under the domination of an army officer appointed by the President. All civilian authorities were placed under the dominant authority of the military government.31

This Act, as supplemented by subsequent amendments, completely deprived these States of all their powers of government and autonomy, until such time as Congress should approve the form of a reorganized state government, conforming to rigid and extreme specifications set out in the Act, and should have recognized the States as again entitled to representation in Congress.

The most extreme and amazing feature of the Act was the requirement that each excluded State must ratify the Fourteenth Amendment, in order to again enjoy the status and rights of a State, including representation in Congress. Section 3 of the Act sets forth this compulsive coercion thus imposed upon the Southern States.32

The most apt characterization of this compulsive provision, placing these States under military authority, there to remain until they complied inter alia with this requirement of ratifying the rejected Fourteenth Amendment, is found in a speech by Senator Doolittle of Wisconsin, a Northerner and a Conservative Republican. During the floor debate on the bill, he said:

“My friend has said what has been said all around me, what is said every day: the people of the South have rejected the constitutional amendment, and therefore we will march upon them and force them to adopt it at the point of the bayonet, and establish military power over them until they do adopt it.” 33

Surely, the authors of our Constitution never contemplated or understood that ratification of a constitutional amendment proposal by a State could lawfully be compelled “at the point of the bayonet,” and by subjecting all aspects of civil life in the recalcitrant State to continued military rule, until this State recanted its heresy in rejecting the proposed amendment, and yielded the desired ratification34 to the duress of continued and compelling force.

President Johnson vetoed the Reconstruction Act in an able message,35 stressing its harsh injustices and its many aspects of obvious unconstitutionality. He justifiably denounced it as “a bill of attainder against nine million people at once.”

Notwithstanding this able message, the Act was promptly passed over his veto by the required two-thirds majority in each House.36 Military rule took over in the ten Southern States to initiate the process of conditioning a subjugated people to an ultimate acceptance of the Fourteenth Amendment.37

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