A People's History of the Supreme Court

by Peter Irons

  16

  “A Higher Law Than the Constitution”

  The Thirteenth Amendment to the Constitution is short and simple: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” Section II provides that “Congress shall have power to enforce this article by appropriate legislation.”

  But the political struggle to abolish slavery through constitutional amendment was neither short nor simple. In fact, after the Senate approved this article in 1864, President Lincoln and Republican leaders could not secure the necessary two-thirds vote for adoption in the House. Not until Lincoln won his second term and Radical Republicans picked up congressional seats in 1864 did the House narrowly approve the amendment, 119 to 56. The switch of three votes would have blocked the abolition of slavery once more. The final House tally on January 31, 1865, ignited wild cheering in the galleries, while congressmen “joined in the shouting” and wept openly with relief and joy.

  However simple in wording, the Thirteenth Amendment reflected a complex mixture of legal doctrine and political discord. Many of the Radical Republicans who pressed for its adoption based their support on “higher law” principles. They did not view the Constitution—which they recognized as the charter of American laws and liberties—as paramount in legal authority, but as subordinate to a “higher law” rooted in “the laws of nature and of nature’s God,” as Senator William Seward put it. In a famous speech, Seward spoke in biblical terms. “The Constitution regulates our stewardship,” he said of Congress, and “devotes the domain to union, to justice, to defense, to welfare, and to liberty. But there is a higher law than the Constitution, which regulates our authority over the domain, and devotes it to the same noble purposes.”

  Most political leaders who appealed to “higher law” principles also recognized the “positive law” enactments of legislatures, and counseled obedience to them. Lincoln, for example, agreed in 1858 that “the people of the Southern states are entitled to a fugitive-slave law” and vowed that he would not obstruct its enforcement. But others preached resistance to all laws they saw as violating the “higher law” that rejected slavery on moral grounds. “Let no man tell you that there is no higher law” than fugitive slave laws, proclaimed Joshua Giddings, a former congressman and fervent abolitionist. Benjamin Wade won election to the Senate from Ohio with a pledge to disobey all slavery laws. And Senator Hannibal Hamlin of Maine, Lincoln’s first vice president, warned southerners that they “must answer to a higher power for the wrongs they perpetrate” against slaves.

  These fire-and-brimstone fulminations illustrate the moralistic fervor of those who vowed to abolish every vestige of slavery. They expected the Thirteenth Amendment to accomplish this goal, assuming that all the southern laws that enforced slavery were struck down by this constitutional provision. Radical Republicans soon learned that many former Confederate leaders had no intention of treating the freedmen as political equals, or even as fellow humans. Their resistance to Reconstruction—even President Johnsons modest and conciliatory program—encouraged widespread violence against blacks who dared to seek the ballot or challenge “the established usages, customs and traditions” of white southerners, the racial practices which the Supreme Court later cited in Plessy v. Ferguson as grounds for upholding Jim Crow laws.

  For blacks across the South, 1865 and 1866 were years of terror. Stung by their military defeat, unrepentant Confederates responded to Reconstruction and the Thirteenth Amendment with a wave of violence. A few examples from the bloodstained list will show the carnage. Henry Adams, a former slave, testified before Congress that after the Confederate surrender in 1865, “over two thousand colored people were murdered” in the area around Shreveport, Louisiana. The following year, after disputes with freedmen over land, whites near Pine Bluff, Arkansas, set fire to a black settlement and rounded up its residents. A white man who visited the scene the next morning described “a sight that apaled me 24 Negro men women and children were hanging to trees all round the Cabbins.” White mobs massacred hundreds of blacks during 1866. In Memphis, Tennessee, a collision between two horse-drawn cabs—one driven by a white and the other by a black led to three days of violence in which forty-six died and hundreds of black homes, schools, and churches were pillaged or burned. Later that year, Louisiana’s Reconstruction governor called a state convention to enfranchise blacks and bar former “rebels” from voting. Blacks who gathered to support the convention were attacked by New Orleans police, most of them former Confederate soldiers. Before federal troops arrived, thirty-four blacks had been shot dead and more than one hundred others injured. One Union army veteran who witnessed the scene wrote that “the wholesale slaughter” on the streets of New Orleans rivaled anything he had experienced on Civil War battlefields.

  Reports of violence against blacks and restrictions on voting enraged Radicals in Congress and prompted them to support the Civil Rights Act of 1866. Sponsored by Senator Lyman Trumbull of Illinois, a moderate Republican who chaired the Judiciary Committee, this bill granted national citizenship to all persons born in the United States (except Indians) and provided that every citizen enjoyed “full and equal benefit of all laws and proceedings for the security of person and property.” Trumbull’s bill also authorized federal attorneys to file suits in federal courts against local and state officials who deprived “any person” of rights guaranteed by the law, subject to fine and imprisonment.

  Supporters of Trumbull’s bill viewed it as a means to enforce the Thirteenth Amendment. If southern states could deprive blacks of rights to own land and vote, one Republican asked, “then I demand to know, of what practical value is the amendment abolishing slavery?” Opponents of the Civil Rights Act charged that it violated the Tenth Amendment, which “reserved to the states” those powers not granted to Congress. Even its advocates recognized the bill’s replacement of state with federal authority. “I admit,” Senator Lot Morrill of Maine said, “that this species of legislation is absolutely revolutionary. But are we not in the midst of a revolution?”

  Determined to appease the South, President Johnson rejected Trumbull’s bill and vetted it after congressional passage. Sounding like the Dixiecrats of the next century, he denounced it as a “stride toward centralization, and the concentration of all legislative powers in the national Government.” Johnson also displayed his racism in claiming that the bill—which provided equal rights for both races—was “made to operate in favor of the colored and against the white race.” In the end, Johnson dug his own political grave by vetoing the Civil Rights Act of 1866. Although both houses of Congress overrode Johnson’s veto by more than the required two-thirds majority, enacting Trumbull’s bill into federal law, Radical Republicans decided to protect the freedmen from any future congressional revision or judicial invalidation of its provisions by adding them to the Constitution through the amendment process. Even before passage of the Trumbull bill over Johnson’s veto, members of Congress had introduced more than seventy proposed amendments. One of them, sponsored by Representative John A. Bingham of Ohio, provided that “Congress shall have power to make all laws which shall be necessary and proper to secure to citizens of each State all privileges and immunities of citizens in the several States, and to all persons in the several States equal protection in the rights of life, liberty, and property.”

  Speaking to the House, Gingham stated that he had designed his proposed amendment “for the enforcement of these essential provisions of our Constitution, divine in their justice, sublime in their humanity, which declare that all men are equal in the rights of life and liberty before the majesty of American law.” Bingham rested his argument on “higher law” principles that he derived from the Declaration of Independence. But he wanted to give Congress the power to enact these principles into “positive law” that would allow federal enforc
ement of “rights of life and liberty” against southern obstruction.

  With Senator Trumbull’s bill on the floor, Bingham agreed to postpone consideration of his proposed amendment, but after the Civil Rights Act became law over Johnson’s veto, Bingham renewed his campaign to place its provisions in the Constitution. His first proposal was designed to enlarge Congressional powers in the field of civil rights. The southern resistance to Reconstruction spurred Bingham to recast his proposal as a limitation on state powers. He revised the amendment to provide that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”

  Bingham’s words survived lengthy congressional debate without change and became the heart of the Fourteenth Amendment. During that debate, he declared his intention to extend “protection by national law from unconstitutional State enactments” to “citizen and stranger” alike. This last phrase expressed Bingham’s desire to extend the Constitution’s protection to immigrants who had not yet become citizens. His amendment would shelter “any person” under the Constitution’s wide umbrella. A century later, Justice William O. Douglas wrote of the “penumbras” of the Bill of Rights—the shadow cast by this metaphorical umbrella—as creating “Zones of privacy” that protect “the people” from governmental invasion of public and private spaces. Bingham had no such expansive purpose; he simply wanted to protect the freed slaves from state oppression.

  The amendment that Congress finally adopted contained five sections; the first included the protections of individual rights that Bingham had drafted. Before its final passage, Congress added a sentence at the beginning of Section I: “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.” These twenty-eight words reversed the twenty thousand words of Chief Justice Taney’s Dred Scott opinion. The Constitution now recognized the former slaves—and free blacks as well—as citizens with legal rights equal to those of whites. The significance of this sentence must not be overlooked as we examine the Constitution’s long and troubled history. Six hundred thousand Americans died in the Civil War that followed Taney’s ruling that blacks were not citizens, but the “property” of their owners.

  The grant of citizenship to “all persons” born in the United States has continued to provoke debate. In recent years, politicians in California and other states have pressed for legislation and constitutional amendments to deny citizenship to children born in the United States of parents who illegally crossed the border. During the nineteenth century, however, there were no “illegal immigrants.” The nation welcomed “all persons” who left their native lands to seek a better life in the United States. Many states allowed immigrants to vote even before they became naturalized citizens, and their children did not fear deportation or denial of constitutional rights.

  Congressional debate on the Fourteenth Amendment focused less on Bingham’s wording of Section I than on provisions aimed at the former Confederate states. Section II erased from the Constitution the clause that counted slaves as “three fifths” of a person in allocating House seats. The new provision based apportionment on “all persons” rather than “free persons,” and punished states that denied voting rights to any “male inhabitants” by reducing their representation in the House. Section III barred from Congress or federal office any former Confederate who had previously held federal or state office, had taken an oath “to support the Constitution of the United States,” and had “engaged in insurrection or rebellion” against the Union. Some congressional Radicals wanted to deny federal office to any former Confederate, but they finally agreed to this watered-down version, which affected only state and federal officials among those who had waged war against the Union.

  Section IV of the proposed amendment barred federal payment of “any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave,” and held such debts and claims to be “illegal and void.” This slap at the Confederate states was aimed at slave owners and wealthy merchants who had financed the Confederacy, but Congress had no sympathy for those who hoped to “profit from treason,” as some Radicals put it. Finally, Section V authorized Congress “to enforce, by appropriate legislation, the provisions of this article.” This section, like the similar provision in the Thirteenth Amendment, gave Congress sweeping powers to protect the former slaves against southern hostility.

  Congressional passage of the Fourteenth Amendment in June 1866 did not guarantee that it would become part of the Constitution. Ratification by three fourths of the state legislatures was still necessary. The question was, which states? Could the former Confederate states block the amendment? Could their readmission to the Union be conditioned on ratification? At the time Congress adopted the amendment, the Union included of ten states, with Nevada the most recent addition in 1864. The refusal of ten states to ratify the Fourteenth Amendment would create another political crisis.

  Sentiment in the white South was “very unanimous against adopting the Amendment,” observed an Alabama editor. To make matters worse, President Johnson openly campaigned against ratification. His position cost him what little Republican support he had inherited from Lincoln, especially after he suggested that Providence had removed Lincoln to elevate Johnson to the presidency. One former supporter wrote that Johnson had “sacrifice the moral power of his position, and done great damage to the cause of Constitutional reorganization.”

  Among the former Confederate states, only Tennessee ratified the Fourteenth amendment, although it required strongarm tactics to gain a House quorum. One recalcitrant member was arrested and brought to the chamber after a “wild night-chase by mule and on foot through the bills,” and two who refused to take their seats were forcibly detained and marked “present” for the session. After the vote, Tennessee’s governor sent a telegram to Congressman Bingham: “Battle fought and won,” he wrote. “Two of Johnson’s, tools refused to vote. Give my compliments to the dead dog in the White House.” All ten remaining Confederate states refused to ratify by huge margins. A few southerners saw the inevitable retribution from Radical Republicans, who vowed to punish the rebellious states. “Are we not,” one South Carolinian asked, “actually inviting our own destruction?”

  The Radicals turned the 1866 congressional elections into a referendum on the Fourteenth Amendment. Public sentiment in the North became almost as unanimous in support as the opposition in the South. Rarely in American politics, observed the New York Times, had elections been fought “with so exclusive reference to a single issue.” Even moderate Republicans scrambled on the bandwagon. “If I was ever Conservative, I am Radical now,” vowed one California congressman. The Congress that convened in December 1866 had more than enough Radicals to override any presidential veto of its Reconstruction measures.

  Radicals in Congress quickly moved to depose the state governments that President Johnson had installed, replacing them with military rule. The Reconstruction Act of 1867 divided the former Confederate states—except Tennessee—into five military districts, each governed by a Union general. As conditions for readmission to the Union, southern states were required to hold conventions and write new constitutions. Each state had to provide the ballot to all males—white and black—and ratify the Fourteenth Amendment before electing members of Congress. Since Congress had denied voting rights to most Confederate army veterans and officials, black voters formed a substantial majority in several states. The law provided that military commanders would register voters and conduct elections. This was, pure and simple, government at gunpoint. But the southern states had, in fact, invited their own destruction by refusing to ratify the Fourteenth Amendment. After t
he “reconstructed” southern legislatures voted for ratification, the amendment finally became part of the Constitution on July 9, 1868.

  Protected by federal troops, blacks voted in large numbers during the early years of Military Reconstruction. Turnouts ranged from 70 to 90 percent, of eligible black voters in the southern states. In elections to state conventions, blacks not only voted but gained seats in all ten states, including a majority in South Carolina and Louisiana and nearly 40 percent in Florida. More than half of the 265 black delegates to state conventions later gained election to state legislatures, and nine served in Congress. Despite their voting strength, however, blacks did not receive their fair share of state and federal offices. Only one black, P. B. S. Pinchback of Louisiana, served as a state governor during Reconstruction, and his tenure lasted just one month. Blacks did hold statewide office in five states, but in the other states under military rule they were shut out from political office or real influence. Sixteen blacks gained election to Congress during Reconstruction, including two senators from Mississippi, Hiram Revels and Blanche Bruce. But no more than five served during any congressional session. The reasons for this decided shortfall in electoral officers are complex: blacks often deferred to white Republicans; many felt themselves unqualified by education or experience; and many others feared the violence unleashed on “upstart” blacks b the Ku Klux Klan and other vigilante groups.

  It is difficult in retrospect to measure the full extent of Klan violence during Reconstruction, or its impact on the black population, Founded in 1866 as a social club in Memphis, by 1870 the Klan had spread across the South and imposed a reign of terror on blacks and their white supporters. A few examples, selected from congressional testimony on Klan violence, will illustrate this bloody record: Jack Dupree, a black leader in Monroe County, Mississippi, known as a man who “would speak his mind,” was disemboweled in front of his wife, who had just given birth to twins. In October 1870, armed whites attacked a Republican rally in Greene County, Alabama, killing four blacks and wounding fifty-four. That same month, after a Republican election victory in Laurens County, South Carolina, Klansmen held a “Negro chase” that ended with thirteen murders.