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 4: Drafting and Ratification of all Sections, Except Citizenship Clause
Ed.
What was the thinking of the Congress in 1866? They and a divided Nation had just witnessed a devastating war, an assassination of an elected President, the loss of friends whom had died, the destruction of property, the straining of international relationships and, foremost, the abolishment of slavery.
In the end, it was the conclusion of a dream that started with the Founding Fathers, a simple paragraph written by a slave owner, but removed, from the Declaration of Independence to end slavery as an abomination to mankind and to build a new Nation,
“separate and equal to which the Laws of Nature and Nature’s God… where all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” (1) .
It was time to rebuild, to restore a Nation. The elected Republicans of Lincoln’s party controlled about 75% of both Houses in Congress, but the opposition was verbal and unrelenting. Everyone knew that legislation was required to protect the rights of all men, of all colors and many understood the need to establish citizenship for legal black freemen
John Bingham of Ohio addressed the House in early January 1866, stating:
“I propose with the help of this Congress and of the American people, that hereafter there shall not be any disregard of that essential guarantee of your Constitution in any State of the Union. And how? By simply adding an amendment to the Constitution to operate on all the States of this Union alike, giving Congress the power to pass all laws necessary and proper to secure to all persons – which includes every citizen of every State – their equal personal rights; and if the tribunals of South Carolina will not respect the rights of the citizens of Massachusetts under the Constitution of their common country, I desire to see the Federal judiciary clothed with the power to take cognizance of the question, and assert those rights by solemn judgement, inflicting upon the offenders such penalties as will compel a decent respect for this guarantee to all the citizens of every State.” (2)
The 14th Amendment Process Begins
John Bingham introduced a Joint Resolution to amend the Constitution on Feb 28,1866.
“The Congress shall have the power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States, and in all persons in the several States equal protection in the rights of life, liberty and property.” (3)
Note: this resolution was prior to the Civil Rights Act of 1866 which conferred citizenship to black freedmen and families.
The language of Bingham’s Resolution upset many members of Congress. Article IV of the Constitution already included the language that citizens of a State had the privileges and immunities of citizens of the several States. The V Amendment stated that no person shall be deprived life, liberty or property. Up until the 13th Amendment, the Constitution was a compact where the people told the Federal government what was expected, there were very few items within the document addressing a relationship with the State. The 13th Amendment changed that relationship, and it was restated in the proposed 14th Amendment – Congress could meddle in the affairs of the State and the citizens.
One cannot blame the Republicans for wanting the power to enforce the Constitution: southern states were ignoring the rights of the legal freedmen and families. Yes, the Civil Rights Act of 1866 conferred citizenship. But could a statute overturn the worst decision in the history of the Supreme Court – the Dred Scott decision which stated that slaves were not citizens but legal chattel, and they were not entitled the protection from the Federal government or the courts.
Where is the Representation of the Southern States?
Congress understood the severity of not having southern representation in Congress, but a change in the Nation had occurred, a war was won, the South was decimated, governance was in shambles, and sadly, many were blaming the freedmen who had shed the shackles of slavery. After studying the issue to allow Southern members to submit their credentials, three items were deemed essential:
- Constitutional changes for equal and just representation;
- Constitutional changes providing security of life, liberty, and property to all the citizens of all the States;
- and Constitutional changes to reject all debts or obligations incurred in aid of the rebellion. (4)
After much debate, the outline of the 14th Amendment was presented and accepted. It was comprised of 6 sections, later reduced to 5 sections by combining “debt”. It was a radical departure from the previous 13 amendments, for each of the five sections addressed a different topic because of the war and reconstruction, and each section had to be approved to ratify in Amendment in Congress.
Section 1 summary: States will not make laws that abridge the privileges and immunities; deprive life, liberty or property; or deny equal protection.
Section 2 summary: Representatives will be apportioned based on the total population, excluding Indians not taxed. But if any group of males over 21 years of age were denied the right to vote, then that State would have a reduction in the State Congressional representation.
Section 3 summary: Those that fought, supported, gave aid and comfort to the South were not allowed to participate in the affairs of government until 1870.
Section 4 summary: The United States will pay its debt, but not assume the debt of the South.
Section 5: Congress has the power to enforce these provisions via legislation.
Discussion Section 2: there were approximately 4-million freed and legal persons in the South as a result of the 13th Amendment, which meant an additional 1.5 million added to the total population of the Nation with the negation of the 3/5 Rule. Given that each member of the House represented 100,000 people, this shifted the allocation of Congress by some 15 seats, primarily in Southern States.
Not only would this shift affect the House, it also affected the Electoral College and the allotment of the Federal tax to the States.
The Congress wanted the freedmen to vote, but the Constitution reserved that privilege to the States. Congress devised a work around – if a State denied the right to vote of any group of males over the age of 21, that States representation decreased by that percentage.
As an example, if Alabama had 8 original representatives and gained 2 additional representatives due to apportionment, if freedmen were not allowed to vote, Alabama could only seat 8 members in Congress and the Electoral College, until the voting issue was resolved and approved.
Discussion Section 3: there were huge divisions in what to do with those who legally support the South and took up arms. The Republicans demanded that there be a punishment, up to never being allowed to participate in the affairs of government, but Lincoln wanted something more lenient, as discussed previously. President Johnson had similar beliefs, but his ideas never addressed the status of the freedmen. Ultimately, this section evolved into denying elected office to the senior members of the South, but Congress could remove the disability by a 2/3’s vote in both Houses.
Discussion Section 4: Congress would authorize payment of Federal debt due to the war, but Congress would not pay for Confederate debt in any manner.
Tom Weaver, Patriot ©2/23/25
- Declaration of Independence
- Congressional Globe, 39th Congress, 1st Session, H.p. 158 (January 9,10, 1866)
- Congressional Globe, 39th Congress, 1st Session, H.p. 1088 (February 28, 1866)
- The Reconstruction Amendments, Volume 2, Edited by Kurt T Lash, University of Chicago Press, 2021, page 172
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