This is an 8-part series on the 14th Amendment to the US Constitution and how it affects among other things, “birthright citizenship.” Today’s offering is: Part 3: What do we do now? Chaos surrounds us? Do we need an Amendment to create order?
Ed.
The Civil War was a bloodbath. It is estimated that between 650,000 to 850,000 combatants died, with the gruesome figure in that, many believe, over 66% perished due to infections from wounds or disease. Had the War not occurred, the South would not have lost 13% of its male population, with the North losing 7%.
When the war ended and the 13th Amendment ratified, there were some 3-million freed slaves. They were no longer chattel, they were free persons living lawfully within the United States, but without any status as a citizen. The 3/5’s rule for apportionment was gone, and a national census was only 4-years away.
The first order of business for the 39th Congress was defining the status of the newly freemen and women. The Civil Rights Act of 1866 was passed by Congress, after overriding a Presidential veto, but there was no representation from the former Confederate States. The Civil Rights Act “guaranteed” that whites and blacks would be treated the same, however, the privilege of voting was excluded.
Though the war had ended, the former Confederate States had with no path to provide delegates to the Federal Congress, hence, the Committee to establish the Reconstruction of the Union was created.
Congress understood that many would not support equalizing the races, for they believed that the African Americans were mentally inferior. But not so for Elizabeth Cady Stanton, who turned the women’s suffrage movement into a abolitionists movement, with the keynote speaker of one event being Frederic Douglas. (1) In an open letter late December 1865, Stanton concluded
“If our rulers have the justice to give the black man suffrage, woman should avail herself of that new-born virtue to secure her rights; if not, she should begin with renewed earnestness to educate the people into the idea of universal suffrage.” (2)
Members of the 39th Congress became concerned, that the Civil Rights Act of 1866 could not permanently secure the citizenship rights of the former slaves and their families, should a future Congress recede the Law. Indeed, the entire war ultimately resolved to a single belief in the Republican party: that the new freedmen and families were entitled to the same rights of life, liberty and pursuit of happiness as the citizens of the 36 States. That these freedmen and women could make contracts, sue, be parties in agreements, give evidence, inherit, purchase, own, lease, sell, convey, be provided equality under the Law, just punishment and so many other basic freedoms. And though not part of the Civil Rights Act of 1866, the freedmen had to have the privilege to vote. (3)
Even with the Civil Rights Act, chaos remains, questions abound, whatever is done must be thorough, so that the evils of slavery are destroyed, and the citizens are equal under the Law.
The questions were complex indeed…
How difficult would it be to void the Civil Rights Act, and deny freedmen and families the basic rights to live as free men and women? Are the teeth in the Act enough to maintain the Act, or could State and local Law simply ignore the Statute?
The Constitution addresses Citizen of the United States for Federal Congressional offices and Article IV of the Constitution states that “Citizens of a State are entitled to Privileges and Immunities of Citizens in the several States.” There is a difference, and it is difficult to explain, except by antidote.(3) At the signing of the Declaration and the Constitution, each State had separate requirements for citizenship, as each State, each former colony was a separate entity, who were giving some of their power to the Federal Government. During the Civil War, the opposing armies were comprised of separate Regiments, the greater majority bearing the name of the State, which primarily was comprised of men who were citizens of that State. One of the arguments for the War was “states’ rights,” that each State was different. The question remained for the 39th Congress, is it within the framework of the Constitution to dictate the requirements of citizenship within a State and to specify the rights of that citizenship? Or is the citizenship of the United States the same as the State citizenship?
Can a State ignore a statute, passed by the Federal Congress, if that Statute is passed without the input of all the States?
How should the Nation address the new Apportionment of Delegates, understanding that the freedmen and women no longer count as 3/5’s, but as individuals? If a State does not allow all freedmen to vote, should that State be allowed to keep the additional House of Representative seats, or should the House representation be reduced by the percentage of disenfranchised?
What if a State denies the privilege to Vote based on color? The Constitution never set voting rules for the States. Can Congress use the Constitution to mandate those eligible to vote or should the States maintain that power? Who ultimately determines who can vote in Federal, State and local elections?
Should we look at female suffrage at this time?
The smartest and brightest of the Southern States were officers in the War. With the loss of so many knowledgeable men during the War, is it practical to deny the States the talent and expertise of these men to serve in peacetime, helping this Nation heal? Is there a method to allow them to serve?
The debt and obligations incurred by the North and the South are enormous. Now that the War is over, is the North responsible for the debts of the South?
The Work Commences, first, renew the Freedmen Bureau
Even before the passage of the Civil Rights Act, committees were setup to discuss the needs of a permanent solution to the guarantee that “all men are created equal.”
Early in January 1866, the Senate acting in a Committee of the Whole, opened considerations to enlarge the power of the Freedmen’s Bureau. Senator Hendricks of Indiana, a prominent Democrat, was recognized.
“I intend, however, briefly to discuss what I think are the prominent features of the bill. It is entitled “A bill to enlarge the powers of the Freedmen Bureau.” It should be entitled “A bill to enlarge the powers and extend the jurisdiction of the Freedmen’s Bureau” … The most remarkable sections of the bill are the seventh and eighth, — I think if we can pass those two sections and make them a law, then indeed this Government can do anything. It will be useless to speak any longer of limitations upon the powers of the General Government; it will be idle to speak of the reserved power of the States; State rights and State power will have passed away if we can do what is proposed in the seventh and eighth sections of this bill.” (4)
Senator Lyman Trumbull of Illinois rose, to refute:
“What was the object of the constitutional amendment abolishing slavery? It was not, as the Senator says, simply to take away the power of the master over the slave. Did we not mean more than that? Did we not mean that hereafter slavery should not exist, no matter whether the servitude was claimed as due to an individual or the State? The constitutional amendment abolishes just as absolutely all provisions of the State or local law which make a man a slave as it takes away the power of his former master to control him.” (5)
The new bill authorized over $11-million ($220-million in 2025) to place representatives in every district of the South, it provided additional assistance for freemen in the North, it added additional requirements for the former Confederate States, expanded the roles of the military governors, and defined how the southern States should organize. The bill was targeted at a single group of people, excluding all others, which, in many aspects justified the comments of Senator Hendricks.
The Freedmen Legislation passed but a Presidential veto was not overridden. The original Freedmen’s Bureau of 1865 remained and was modified.
Tom Weaver, Patriot ©2/16/25
- https://constitutioncenter.org/the-constitution/historic-document-library/detail/frederick-douglass-what-to-the-slave-is-the-fourth-of-july-1852
- The Reconstruction Amendments, The Essential Documents Volume 2, Edited by Kurt T.Lash, University of Chicago 2021, page 30
- Is voting a Right or a Privilege? I am of the belief that voting is a privilege, much like driving. There are rules and requirements required prior to voting and prior to driving. But there are no rules or requirements that one has the right to life, safety, equality under the law. That said, it is a grey area as to which word to use.
- Congressional Globe, 39th Congress, 1st Session, S.p. 315/318 (January 19,1866) Hendricks voted against the 113th, 14th, and 15th Amendments.
- Congressional Globe, 39th Congress, 1st Session, S.p. 322 (January 19,1866).
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