As part of the National Constitution Center’s on-going Interactive Constitution project, leading constitutional experts interact with each other to explore the Constitution’s history and what it means today.In this special look at the ground-breaking 14th Amendment, three sets of experts find common ground on the amendment's Equal Protection, Due Process and Enforcement Clauses and also explore Matters of Debate on each subject.
Link: Read The Entire Text Of The 14th Amendment
Nathan S. Chapman and Kenji Yoshino examine the Due Process Clause. "The Due Process Clause of the Fourteenth Amendment is the source of an array of constitutional rights, including many of our most cherished—and most controversial," they write in an essay written together. Click here for the full essay and separate Matters of Debate essays from these scholars.
Brian Fitzpatrick and Theodore M. Shaw discuss one of the Constitution's best-known clauses, the Equal Protection Clause. "Ratified as it was after the Civil War in 1868, there is little doubt what the Equal Protection Clause was intended to do: stop states from discriminating against blacks. But the text of the Clause is worded very broadly and it has come a long way from its original purpose," they write. Click here for the full essay and separate Matters of Debate essays from these scholars.
And Erwin Chemerinsky and Earl M. Maltz jointly look at the Enforcement Clause. "Section Five of the Fourteenth Amendment vests Congress with the authority to adopt 'appropriate' legislation to enforce the other parts of the Amendment—most notably, the provisions of Section One," they write. "By adding to the authority of Congress, Section Five changed the balance of power between the state and federal governments that is the hallmark of the federal system." Click here for the full essay and separate Matters of Debate essays from these scholars.
These experts were selected with the guidance of leaders of two prominent constitutional law organizations—The American Constitution Society and The Federalist Society. This project is sponsored by a generous grant from the John Templeton Foundation.
More About The 14th Amendment on Constitution Daily10 huge Supreme Court cases about the 14th AmendmentVideo: The history and legacy of the 14th AmendmentJohn Bingham: One of America’s forgotten “Second Founders”
For nearly thirty years, I have attempted to resolve a series of questions that are common to the patriot, or constitutionalist, community. These questions relate to what has happened to the legal system that we were supposed to have adopted, at the time of the formation of this country, based upon both the Common Law of England, as it existed on July 4, 1776, and, a concept of justice that removed us from the arbitrary control of government.
Over the years, I have listened to what others had to say I have watched their actions to see the results. I have read cases that seemed to bear on the subject, and, I have "experimented", when the opportunity to do so arose.
Over time, as will be explained in the following, the pieces seem to fit a pattern. Rather than trying to wrap the facts around a theory, I developed a theory that fit all of the facts that I could find. However, in finding that some of the facts were, inexplicably, unwilling to fit any theory, I realized that there must be two theories, and it was a matter, then, of determining which theory fit which facts.
The two outstanding theories, neither of which will recognize the other, are:
- We are subject to all laws enacted by the government, unless the Supreme Court overrules them.
- We are subject to no laws enacted by the Congress; instead, we are only subject to the common law.
The two sides (theories) have advocates who faced off with the other side, each insisting that they are right and the other is wrong. While, in fact, both sides are partially right, and, partially wrong.
The former recognized the supremacy of government (statist). They do not accept that there was an alternative, even though England had three jurisdictions, in times past: The King's Bench, the Common Law, and, the Ecclesiastic Court. The have accepted that which is taught in law schools, that administrative law is the law of the land, and can only be changed by legislation, or a decision of the Supreme Court. The concept of common law has no place in our society, according to this theory.
The latter, on the other hand, determined that the federal legislature has no authority to enact laws that are not in the purview of the common law (extreme constitutionalists). The assertion is that no federal laws operate on them. To this last claim, I do believe that they are, in part, correct, as will be explained in the body of this work. They ignore, however, that the Constitution did empower the Congress to enact certain laws, which, if enacted consistent with the Constitution, do operate on them.
It appeared to me that these two 'schools' are face to face, arguing that the other is wrong. They do not seem to realize that a chasm existed between them, and, that the chasm is the distinct separation of two classes of people, each subject to a different jurisdiction. After all, the courts are not going to explain that separation, as they did in Twining v. State of New Jersey. Instead, the courts are going to accept the acquiescence to jurisdiction, as they did in Dred Scott v. Sandford.
Though there may be an easier, and, perhaps, more succinct means of establishing which jurisdiction you are in, whenever you do enter a courtroom, or find yourself dealing with any federal (or state) agency, the means that I have used to "test" such relationships are addressed herein.
Though not mentioned in the body of this work, it might be worth pointing out that the nexus (interconnection) between Social Security Account Numbers and being a federal citizen does not appear to be valid, as the one side claims. I have a Social Security Account Number. I am not a "taxpayer" (explained herein), though I do receive Social Security Benefits. Simply having, and using, that number does not appear to have forced me into a jurisdiction, since I have managed to separate myself from imposition of federal jurisdiction, without regard to, or any consideration, of that account number. Unfortunately, the banks have been duped into seeing things differently, so I do not deal with them.
It does, however, appear that many of the intermediate jurisdictions (other than courts), institutions, and even private corporations, believe that the nexus is there, and, that they are bound by such laws they are told to abide by. They insist that you, too, are bound by such laws. To argue the point with them is fruitless, and, at best, will only create dissension. They, too, have been duped, along with most of the people in this country, into believing that which is not true.
It is for the purpose of exposing that deception that the following has been prepared, for your consideration.
March 23, 2011
For over twenty years, I have had the opportunity to meet and exchange ideas with numerous patriots, constitutionalists, and, legal advocates (on both sides of the fence). It is from others, as well as my own research, that I have been able to delve into the question that is, perhaps, the most trying, concerning both our rights and our relationship with the federal government.
Probably first among these was Richard McDonald, State Citizen advocate. In 1992, while still on crutches with a broken foot, I flew to California and spent two weeks as Richard's guest. I had free access to his library, writings, and, his time, when he was not engaged in teaching classes on State Citizenship. Those two weeks were a crash course, and my introduction, to this pursuit of what really is.
Over the years, I was able to spend time, speak with, or, correspond with, many others, some whose names I have forgotten, though not what I learned from them. Among them are Larry Becraft, John Wolfgram, Charles Stewart, Emilio Ippolito, Susan Mokdad, and others, unnamed, who were in pursuit understanding the complexities of the legal institutions of this country. To all of them, I offer my grateful thanks for the part that you played in my education.
During the preparation of this document, I have relied upon friends to assist me in proofreading; continuity; reduction of complex or confusing presentations to wording understandable to a layperson, and general overall comprehensibility of the writings. Their patience, and, yes, endurance, to go through this multifaceted subject with a fine-toothed comb, is indicative of their desire to understand, and help to bring to others, an understanding, of the subject matter contained herein. To them I extend my gratitude.
Finally, to those who read this work, whether you agree with my conclusions, or not, your seeking an understanding of the subject matter is indicative of your desire to learn, understand, and correct, these problems.
TOC \o "1-4" \h \z \u Preface. PAGEREF _Toc298767206 \h i
Acknowledgement. PAGEREF _Toc298767207 \h iii
The Ratification of the Constitution.. PAGEREF _Toc298767208 \h 1
Judicial Review.. PAGEREF _Toc298767209 \h 2
Jurisdiction.. PAGEREF _Toc298767210 \h 3
Prior to the Civil War. PAGEREF _Toc298767211 \h 3
The Civil War. PAGEREF _Toc298767212 \h 4
The 14th amendment. PAGEREF _Toc298767213 \h 6
Ratification.. PAGEREF _Toc298767214 \h 6
Reconstruction, and its effect on ratification.. PAGEREF _Toc298767215 \h 8
What the Fourteenth Amendment says. PAGEREF _Toc298767216 \h 15
Intent of the Fourteenth Amendment. PAGEREF _Toc298767217 \h 16
What is a citizen of the United States?. PAGEREF _Toc298767218 \h 24
Prior to the Fourteenth Amendment. PAGEREF _Toc298767219 \h 24
Dred Scott v. Sandford - 60 U.S. 393 (1856). PAGEREF _Toc298767220 \h 24
Subsequent to the Fourteenth Amendment. PAGEREF _Toc298767221 \h 29
Minor v. Happersett, 88 U.S. 162 (decided in 1874). PAGEREF _Toc298767222 \h 30
Twining v. State of New Jersey - 211 U.S. 78 (1908). PAGEREF _Toc298767223 \h 34
Malloy v. Hogan, 378 U.S. 1 (1964). PAGEREF _Toc298767224 \h 38
John Bad Elk v. U S, 177 U.S. 529 (1900). PAGEREF _Toc298767225 \h 40
What has all of this lead to?. PAGEREF _Toc298767226 \h 42
Administrative Agencies. PAGEREF _Toc298767227 \h 42
Ashwander v Tennessee Valley Authority - 297 U.S. 288 (1936). PAGEREF _Toc298767228 \h 43
Administrative Procedure Act of 1946. PAGEREF _Toc298767229 \h 46
A Rather Confusing Form of Jurisdiction.. PAGEREF _Toc298767230 \h 49
Conclusion.. PAGEREF _Toc298767231 \h 58
Appendix. PAGEREF _Toc298767232 \h 59
Oath of Office Act - July 2, 1862. PAGEREF _Toc298767233 \h 59
Reconstruction Act I - March 2, 1867. PAGEREF _Toc298767234 \h 60
Reconstruction Act II - March 23, 1867. PAGEREF _Toc298767235 \h 62
Johnson's Veto of the First Reconstruction Act March 2, 1867. PAGEREF _Toc298767236 \h 64
Reconstruction Act III - July 19, 1867. PAGEREF _Toc298767237 \h 68
Reconstruction Act IV - March 11, 1868.. PAGEREF _Toc298767238 \h 70
Judiciary Act of March 3, 1863. PAGEREF _Toc298767239 \h 71
Judiciary Act of May 11, 1866. PAGEREF _Toc298767240 \h 74
The 14th Amendment is, without a doubt, the most controversial Amendment to the Constitution. It is, perhaps, also, the most misunderstood.
To understand the Amendment, it is necessary to go back to 1787-88, during the ratification conventions, to understand what the sympathies toward Article III (Judiciary) were.
The Ratification of the Constitution
During the various state Constitution Ratification conventions, there were concerns about the effect of that Article (III). Some of those, the fact that it did not extend jury trials to civil matters, and, that it did not prohibit an accused from furnishing evidence against themselves, were rectified in the subsequent ten Amendments (now known as the Bill of Rights).
Though little had been said in previous convention debates, the Virginia debates brought forth the consideration of that Article, and all subsequent conventions spent days on that subject.
During that convention, a few significant objections arose, always with the same defense.
James Mason argued that the judicial branch was "so constructed as to destroy the dearest rights of the community", that its jurisdiction was so broad that it left no business for state courts that would be wiped out by the Federal courts who would try all cases under the laws of Congress, whose power was essentially unlimited.
Patrick Henry argued that the Constitution demanded "the surrender of our great rights". The Virginia state judiciary was" one of the best barriers against strides of power", that the Federal judiciary would support what the Constitution declared, that Federal law would be superior to that of the states.
Both had argued for an amendment that would set limits on federal court jurisdiction.
John Marshall denied Mason's claim that the jurisdiction of Federal courts would expand because they have jurisdiction over cases under the laws of Congress and Congress' power was essentially a limited power. He stressed that Congress' powers were enumerated, and so, are limited that they would not supersede States' rights. If Congress tried to make a law outside of those powers, judges would consider it an infringement of the Constitution that they were pledged to defend to "declare it void".
Federalists had argued that this Article would not impose itself on the states, except in clearly federal matters. With this understanding, the objections to Article III were not, except as before stated, taken into consideration in the subsequent amendments. This condition was accepted, and was held to, for all intents and purposes, until after the Civil War.
John Marshall, Chief Justice of the Supreme Court (1801-1835), established the concept of "judicial review", while deciding the Marbury v. Madison case [5 US 137 (1803)].
The question arose as to which branch of government would determine the Constitutionality of a matter. Congress had established Justice of the Peace positions in the federal district (District of Columbia), which were appointments for a period of 5 years, once approved by the President (Adams), which were made at the end of his term as President. Jefferson did not deliver the Commissions to the appointees, believing that since the Justices had not been seated, he had the right to withhold delivery of the commissions and to make his own appointments.
The concept of judicial review evolved from Marshall's dealing with the Marbury case and espousing the position that since the law (Judiciary Act of 1789, enacted by the Legislature) was enacted under the authority of the Legislative provisions of the Constitution, and, since the President (Jefferson) felt that his executive decision was within his authority as the Executive, meant that the First (Legislative) and Second (Executive) Branches of government both felt that their interpretation of the Constitution was correct.
Who is to decide, when both parties, under the same Constitution, disagree on what is constitutional? Clearly, the Supreme Court was the only option for a 'disinterested' third party, capable of deciding which side had the proper interpretation of the Constitution in the matter before it. There can be little doubt that the final decision could not be left to the Legislative or the Executive Branch, since the passing and signing of laws were powers of the First and Second branches of government, respectively -- a shared authority to enact laws, veto, and veto override, as means of dispute resolution, prior to enactment.
Marshall also provided, in that decision, that "an act of the legislature repugnant to the constitution is void ". Unfortunately, this second provision seems to be what is most often referred to, when citing Marbury v. Madison, with total disregard to the significance of 'judicial review'.
This implementation of judicial review changed the Court from the Circuit Riding Court that had acted in no such capacity, prior to Marbury v. Madison, to the ultimate authority on Constitutional interpretation. Prior to this time, they simply acted in the capacity of judges, dealing with those cases that fell into their purview, as described in Article III, Section 2, and, revised by the ratification of the 11th Amendment, in 1795.
This practice of Judicial Review would remain fully intact until the 1930s, when that same Court provided a means to absolve themselves from the responsibility of making such discernment, if they could otherwise decide matters before them. This will be covered, in detail, later.
When we get the Fourteenth Amendment, we will have to understand what the authority of the Congress was, with regard to jurisdiction. To understand this, we can look at a law enacted in 1825, which lays out the authority of the government to punish crimes against the United States.
An Act more effectually to provide for the punishment of certain crimes against the United States, and for other purposes. (March 3, 1825)
"That if any person or persons, within any fort, dock-yard, navy-yard, arsenal, armory, or magazine, the site whereof is ceded to, and under the jurisdiction of, the United States, or on a site of any lighthouse, or other needful building belonging to the United States, the sight whereof is ceded to them [United States}, and under their jurisdiction, as aforesaid, shall, willfully..."
The Act goes on for a number of Sections, describing crimes, though only within the jurisdiction addressd, above, and on waterways and the open seas. Clearly, Congress (and the President) recognized that their authority had geographical limits. It could, however, extend to those who were not citizens of the various states, as they were not otherwise protected by the state government.
In light of the above, if Congress were to enact laws, or an amendment to the Constitution were ratified, and the wording of the law or amendment was "and subject to the jurisdiction of the United States, it would not, unless something had changed, previously in the Constitution, extend to those citizens of the states who were not within any of the described premises. It could only apply to those who were without an allegiance to the state (non-citizen), by any stretch of the imagination.
Keep this thought stirring in your mind. You will, shortly, find that it is one of two critical considerations, for us to understand, if we truly want to understand the ramifications of the Fourteenth Amendment.
Prior to the Civil War
The period from the ratification of the Constitution (June 21, 1788) through the Civil War, laws were written to support the operation of government (such as the Judiciary Act of 1789), or, were written as protective of the government (such as John Adams' Alien and Sedition Acts). Federal laws that acted to protect people from other people, or from themselves, were unheard of. The authority for any such legislation was clearly understood to reside with the state, or local government.
Many matters that might otherwise be challenged under the Constitution, if simply rights protected thereby could be heard and decided, but any such case must have apparent and direct violation of the Constitution. Since each of the states had Bill of Rights as part of their own constitutions, state decisions were accepted, in accordance with Article IV of the Constitution. States' autonomy was recognized, as was the promise made during in the ratification conventions.
To demonstrate the inability of Congress to enact laws that acted upon the individual, we need simply understand that the original Thirteenth Amendment (whether ratified, or not -- see The Missing Thirteenth Amendment PDF) had wording that demonstrates that inability to act directly upon the people.
The Thirteenth (Titles of Nobility) Amendment, which was ratified by a number of states, read:
"If any citizen of the United States shall accept, claim, receive, or retain any title of nobility or honour, or shall, without the consent of Congress, accept and retain any present, pension, office, or emolument of any kind whatsoever, from any emperor, king, prince, or foreign power, such person shall cease to be a citizen of the United States, and shall be incapable of holding any office of trust or profit under them, or either of them."
Notice that the Amendment does not give the Congress, the Executive, or the Judicial Branch the authority to divest someone of his citizenship; No punishment is prescribed; no crime is committed. It simply states that that person "shall cease to be a citizen of the United States", and, shall hold no public office. It is the act of the individual that removes his citizenship. Since the government could not act directly, they made the act of the individual constitute a voluntary deprivation of citizenship.
The Civil War
Though there were many violations of the Constitution, perhaps justified under the provisions for national emergencies, the most appalling is the suspension of habeas corpus, especially in Maryland.
Washington, D.C. (then "Federal City" or "Washington City") is situated straddling the Potomac River, parts of which were lands in both Virginia and Maryland. Virginia's secession from the Union, created a rather embarrassing situation. The Federal Capital was split, partly bounded by enemy land.
Maryland had many citizens who sided with the South. Secession of Maryland would mean that the enemy surrounded the entire Capital. This was nearly beyond comprehension, and since the Capital could easily be taken (generally indicating victory), it was necessary to curtail any possibility that the people of Maryland could seceded. Jailing those who spoke for secession, especially politicians and newspaper editors, was the best, and, perhaps, only way to stem the tide towards secession and assure that at least a part of the Capital remained under the control of government.
Whether this action was consistent with the Constitution, or not, is not the subject of this discussion, so will be addressed no further. It is simply foundational.
The next significant event, which was clearly a violation of the Constitution, was the acceptance of West Virginia as a state of the Union. West Virginia is comprised of lands that were wholly within the boundaries of Virginia. As such, they were protected from federal dissection by Article IV, Section 3, clause 1, which reads in part, "... no new State shall be formed or erected within the Jurisdiction of any other State... without the Consent of the Legislatures of the States concerned as well as of the Congress."
Now, that is not difficult to understand, and if we look at what really happened, we can see that the Constitution was put aside in the acceptance of West Virginia as a state of the Union.
Virginia secedes from the Union of April 17, 1861. Lincoln had declared that the states were not allowed to secede -- that they were in rebellion, though the country and the Constitution were intact. That being the case, the legislature of Virginia, whether in rebellion, or not, was required by the Constitution to approve the creation of West Virginia, prior to its admission to the Union. It did not.
West Virginia was admitted to the Union on June 20, 1863. Obviously, this admission was contrary to the Constitution, though post Civil War acts attempted to smooth over this transgression with rather feeble arguments.
With a presidential election coming in late 1863, a problem arose. A number of states were in turmoil, and, according to the 12th Amendment to the Constitution, a quorum of two-thirds of the states was necessary to conduct the election. The Amendment (presidential election) states, in part, "A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice". With 34 states in the Union (West Virginia was the thirty-fifth), that would require twenty-four states to make the quorum.
So, we have 34 states with 11 in rebellion (no active legislature willing to oversee the selection of the electors), we have only 23 states with which to make a quorum. Quite simply, without West Virginia, Lincoln would have to proclaim himself President, contrary to the whole concept embodied in the Constitution.
Though there are many other transgressions against the Constitution, the significance of these two is sufficient for the purpose of this discussion.
So, then, we now understand Lincoln's desperation to retain a semblance of the government created by the Constitution, though we can now look back and see if there were, perhaps, some other motives to his actions. Though he did claim that he wanted to preserve the Constitution and the government, some of his most well known words seem to contradict this assertion.
On November 19, 1863, at the dedication of a cemetery for the war dead from the Battle of Gettysburg, Lincoln concluded his speech with the following:
"...that this nation, under God, shall have a new birth of freedom—and that government of the people, by the people, for the people, shall not perish from the earth."
Ironically, this "new birth of freedom" may be more than simple prose in his speech, for it clearly was a harbinger of a new form to the old government created by the Founders.
Lincoln died shortly after the surrender of Confederate forces at Appomattox, Virginia, so we will never know to what extent he would have restored the nation, had he lived. The foundation, however, was set to allow those who controlled the government to redirect the course away from the reconciliation that Lincoln had promised.
The 14th amendment
The Congress proposed the 14th Amendment to the Constitution on June 13, 1866.
The ratification 3/4ths of the states, or 28 of the then 37 states), by states, is as follows:
Connecticut (June 25, 1866)
New Hampshire (July 6, 1866)
Tennessee (July 19, 1866)
New Jersey (September 11, 1866) *
Oregon (September 19, 1866)
Vermont (October 30, 1866)
Ohio (January 4, 1867) *
New York (January 10, 1867)
Kansas (January 11, 1867)
Illinois (January 15, 1867)
West Virginia (January 16, 1867)
Michigan (January 16, 1867)
Minnesota (January 16, 1867)
Maine (January 19, 1867)
Nevada (January 22, 1867)
Indiana (January 23, 1867)
Missouri (January 25, 1867)
Rhode Island (February 7, 1867)
Wisconsin (February 7, 1867)
Pennsylvania (February 12, 1867)
Massachusetts (March 20, 1867)
Nebraska (June 15, 1867)
Iowa (March 16, 1868)
Arkansas (April 6, 1868)
Florida (June 9, 1868)
North Carolina (July 4, 1868, after having rejected it on December 14, 1866)
Louisiana (July 9, 1868, after having rejected it on February 6, 1867)
South Carolina (July 9, 1868, after having rejected it on December 20, 1866)
Throughout our history, this is the only instance where, a state had previously rejected ratification, it was later allowed to withdraw that rejection. Conversely, when Ohio *, on January 15, 1868, attempted to withdraw its ratification, and, on February 28, 1868, New Jersey * attempted to withdraw its ratification, both were rejected in their withdrawals. Prior to, and since the 14th Amendment, once a state ratifies or rejects a proposed amendment, that action is unchangeable.
Now, that is a sort of one-way ticket to ratification. Eventually, each state, for one reason or another, might have a legislature that would support ratification. Not being able to withdraw from, only to add to indicates that any proposed amendment will, ultimately, be ratified.
To demonstrate, let's suppose that in one session of the state's legislatures, ratification received 50% approval and 50% rejection. In the next session, there was 25% approval (changes in state ratification) and 25% rejection (similarly, changes in ratification). The result, then, would be 75% in favor, since only the changes in one direction (ratification) are counted. By such procedure, any Amendment will, eventually, be ratified. This was not the intention of Article V of the Constitution.
We also have to wonder why a state would vote to ratify an amendment that would deny them the representatives of their own "chusing". More on that, later.
So, let's look at why the southern states would ratify this amendment, and how it was ratified.
Reconstruction, and its effect on ratification
The Constitution Provides for representation of both the people (House of Representatives) and the states (Senate). It sets qualifications for each office, and it provides for the punishment of members for "disorderly Behaviour ". "Each House shall be the Judge of the Elections, Returns and Qualifications" (Art I, Sec 5, cl 1), provides the authority to "Judge", though not to change the qualifications of its members.
However, in July 1862, Congress enacted a law, the Oath of Office Act (See Appendix), providing a new "oath of office" to be taken by anyone elected to "any office of honor or profit under the government of the United States".
This, presumably, displaced the oath that had been previously established for such offices, under the authority of Article VI, clause 3, which reads:
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
However, the Act only applied to federal office holders. Clearly, they questioned their own authority to extend what amounted to a change in qualifications, by virtue of the new oath, which, according to the Act, reads:
"I, A B, to solemnly swear (or affirm) that I have never voluntarily borne arms against the United States since I have been a citizen thereof; that I have voluntarily given no aid, countenance, council, or encouragement to persons engaged in armed hostility thereto; that I have neither sought nor accepted nor attempted to exercise the functions of any office whatever under any authority or pretended authority in hostility to the United States; that I have not yielded a voluntary support to any pretended government, authority, power, or constitution within the United States, hostile or inimical thereto. And I do further swear (or affirm) that, to the best of my knowledge and ability, I will support and defend the Constitution of the United States, against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of the evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter, so help me God".
At war's end, the Congress, in opposition to both Lincoln's expressed after war policy of reconciliation, and the sitting President, Andrew Johnson's continuation of those policies, following the same course, began enacting a series of Acts known as the Reconstruction Acts.
The First Reconstruction Act was enacted on March 2, 1867. (See Appendix)
The Act is titled, "An Act to provide for the more efficient Government of the Rebel States".
This Act begins by stating that "no legal State governments or adequate protection for life or property now exists in the rebel States of Virginia, North Carolina, South Carolina, Georgia, Mississippi, Alabama, Louisiana, Florida, Texas, and Arkansas". Note that Tennessee had, apparently, already been rehabilitated.
Interesting that this declaration was made at this point in time, when West Virginia was brought into the Union to create a quorum. However, Lincoln was alive, at that time, and wielded considerable influence, due to his popularity. Lincoln always stated that the Union was not dissolved, so these states must have remained in the Union -- but how can a state be a state when it has no government? Especially, considering what the Constitution says regarding the States, in Article IV, Section 4:
"The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence."
This seems to support that the right of the State to have a "Republican Form of Government", meaning one elected by its own people, exists, regardless of what Congress might think on the matter.
President Andrew Johnson apparently agreed, since he vetoed the Reconstruction Act, though he was overridden by the requisite two-thirds majority of each house.
Johnson's Veto, of March 2, 1867 (See Appendix)
Johnson's veto makes clear his position, and reason for vetoing the Reconstruction Act. The last paragraph sums up a rather interesting explanation, to wit:
"It is a part of our public history which can never be forgotten that both Houses of Congress, in July, 1861, declared in the form of a solemn resolution that the war was and should be carried on for no purpose of subjugation, but solely to enforce the Constitution and laws, and that when this was yielded by the parties in rebellion the contest should cease, with the constitutional rights of the States and of individuals unimpaired. This resolution was adopted and sent forth to the world unanimously by the Senate and with only two dissenting voices in the House. It was accepted by the friends of the Union in the South as well as in the North as expressing honestly and truly the object of the war. On the faith of it many thousands of persons in both sections gave their lives and their fortunes to the cause. To repudiate it now by refusing to the States and to the individuals within them the rights which the Constitution and laws of the Union would secure to them is a breach of our plighted honor for which I can imagine no excuse and to which I can not voluntarily become a party."
So, what else did the Reconstruction Act accomplish? It divided the 10 named states into five military districts, and established an officer of the rank of brigadier-general, or above, as commander of each district. It also provided that military commissions or tribunals would be used to try criminals, without regard to local, state, or Federal Court systems.
In order to provide a means for these states to return to the union, which they never left, provision was made to provide for a new constitution for the respective states. However, those allowed to vote for delegates, or to be delegates, to the state constitutional convention was limited to those who had not participated in the rebellion and were not felons.
If the new constitution was ratified and submitted to Congress for examination and approval, the Congress would approve the constitution, if the convention had also ratified the 14th amendment. Quite simply, ratification of the 14th amendment, though separate from the State constitution, had to be ratified in order for Congress to accept the state constitution and allow readmission. Now, I realize that this is rather confusing, so let's look at what it says:
SEC. 5. And be it further enacted, That when the people of any one of said rebel States shall have formed a constitution of government in conformity with the Constitution of the United States in all respects, framed by a convention of delegates elected by the male citizens of said State, twenty-one years old and upward, of whatever race, color, or previous condition, who have been a resident in said State for one year previous to the day of such election, except such as may be disenfranchised for participation in the rebellion or for felony at common law, and when such constitution shall provide that the elective franchise shall be enjoyed by all such persons as have qualifications herein stated for electors of delegates, and when such constitution shall be ratified by a majority of the persons voting on the question of ratification who are qualified as electors for delegates, and when such constitution shall have been submitted to Congress for examination and approval, and Congress shall have approved the same, and when said State, by vote of its legislature elected under said constitution, shall have adopted the amendment to the Constitution of the United States, proposed by the Thirty-ninth Congress, and known as article fourteen, and when said article shall have become a part of the Constitution of the United States, said State shall be declared entitled to representation in Congress, and senators and representatives shall be admitted therefrom on their taking the oath prescribed by law, and then and thereafter the preceding sections of this act shall be inoperative in said State: Provided, That no person excluded from the privilege of holding office by said proposed amendment to the Constitution of the United States, shall be eligible to election as a member of the convention to frame a constitution for any of said rebel States, nor shall any such person vote for members of such convention.
Trying to put this into perspective, the state must ratify the 14th amendment, which it is not qualified to do since it is not a state, for consideration to be made regarding readmission to the union, so that as a state, the ratification of the 14th amendment would have the appearance of satisfying Article V of the Constitution. So, the Amendment had to be ratified before Congress would accept the state constitution and readmit it to the Union. Is a ratification valid if it is done be a non-entity (not a legal state), as a condition of becoming an entity (legal state)?
The first Reconstruction Act concludes with the admonishment that all civil government is provisional, until such time as the Congress accepts that state back into the union.
The Second Reconstruction Act was enacted on March 23, 1867 (See Appendix).
Just three weeks later, Congress enacted the Second Reconstruction Act, overriding, once again, a veto by President Johnson.
The Act is titled, "An Act supplementary to an Act entitled "An Act to provide for the more efficient Government of the Rebel States," passed March second, eighteen hundred and sixty-seven, and to facilitate Restoration."
The Act begins by modifying the oath prescribed in the Oath of Office Act of July 2, 1862, to wit:
"I, _____ do solemnly swear (or affirm), in the presence of Almighty God, that I am a citizen of the State of ______ ; that I have resided in said State for _____ months next preceding this day, and now reside in the county of or the parish of _______, in said State (as the case may be) ; that I am twenty-one years old ; that I have not been disfranchised for participation in any rebellion or civil war against the United States, nor for felony committed against the laws of any State or of the United States; that I have never been a member of any State legislature, nor held any executive or judicial office in any State and afterwards engaged in insurrection or rebellion against the United States, or given aid or comfort to the enemies thereof; that I have never taken an oath as a member of Congress of the United States, or as an officer of the United States, or as a member of any State legislature, or, as an executive or judicial officer of any State, to support the Constitution of the United States, and afterwards engaged in insurrection or rebellion against the United States, or given aid or comfort to the enemies thereof; that I will faithfully support the Constitution and obey the laws of the United States, and will, to the best of my ability, encourage others so to do so help me God".
This oath effectively disenfranchised anyone who had fought on the side of the South, even if conscripted. This leaves the infirm, the freed slaves, and those who refused to abide by their own states call to defend themselves against northern aggression. Rather a selective, though not representative, body of electors. However, because of this Act, they became the people who would decide the future of the state -- a small minority.
This Act, just weeks after the First Reconstruction Act, seemed to be directed at clarifying deficiencies in the former. It goes on to clarify the procedures to be adopted to conduct the elections prescribed in the former.
The Third Reconstruction Act was enacted on July 19, 1867 (See Appendix).
This Third Reconstruction Act once again passed by a veto override, is titled, "An Act supplementary to an Act entitled "An Act to provide ‑for the more efficient Government of the Rebel States," passed on the second day of March, eighteen hundred and sixty-seven, and the Act supplementary thereto, passed on the twenty-third day of March, eighteen hundred and sixty-seven."
It begins with a rather interesting acknowledgement:
"That it is hereby declared to have been the true intent and meaning of the act of the second day of March, one thousand eight hundred and sixty-seven, entitled "An act to provide for the more efficient government of the rebel States," and of the act supplementary thereto, passed on the twenty-third day of March, in the year one thousand eight hundred and sixty-seven, that the governments then existing in the rebel States of Virginia, North Carolina, South Carolina, Georgia, Mississippi, Alabama, Louisiana, Florida, Texas, and Arkansas were not legal State governments ; and that thereafter said governments, if continued, were to be continued subject in all respects to the military commanders of the respective districts, and to the paramount authority of Congress."
If there was any question that the First Reconstruction Act didn't impose martial law on the ten offending states, it is made abundantly clear, two years after the war is concluded.
This Act continues and allows military officers, so delegated, to remove civil officers of the state government, subject, of course, to review by higher authority. It also sets up review to determine a parson's qualification, under the guidelines, rather than the previous reliance on the oath, and extends the restrictions laid out in the oath of March 23, 1867, "executive and judicial" to include all "civil offices" held under the state government.
The Fourth Reconstruction Act was enacted on March 11, 1867 (See Appendix).
This Act provided that elections could be held for representatives in the House of Representatives at the same time that they were ratifying their constitution. This Act was received by the frustrated President Johnson, who acknowledged receipt of the Act on February 28, 1868, and took no further action, allowing that "after ten days (Sundays excluded)", the Act would be passed without further action.
These acts begin to answer the question set out above as to why a state would vote to ratify an amendment that would deny them the representatives of their own "chusing". The coercion to achieve the goals set out by the Congress, for Reconstruction, were meant to impose absolute control over the southern states; impose martial law, extending even to the removal of civil officers; and, to manipulate, by any means necessary, the ratification of the Fourteenth Amendment to the Constitution, so long as it appeared, as much as possible, to be consistent with Article V of the Constitution.
The Judiciary Act of March 3, 1863 (See Appendix)
This Act was the codification of Lincoln's suspension of habeas corpus. It was the first of a number of acts enacted during and after the Civil War that were to change the nature of justice, and, undermine the principle of "judicial review" established by Justice Marshall in 1803 (Marbury v. Madison 5 US 137), which set the precedence for judicial review, when a question arose over the constitutionality of a matter before the court. Marshall soundly reasoned that when a dispute arose over constitutionality between the Legislative Branch and the Executive Branch, it was up to the third, the independent, Judicial Branch to make the determination as to constitutionality.
the Legislative and Judicial branches of government were able to undermine this Presidential prerogative, through legislation, judicial decisions, and, refusal of judicial consideration.
The Judiciary Act of May 11, 1866 (See Appendix)
This Act extended habeas corpus cases and procedure, and, moved certain cases out of state courts and into federal circuit courts, providing a jurisdiction that had not previously existed. This act amended the Judiciary Act of March 3, 1863.
The Judiciary Act of February 5, 1867 (See Appendix)
In early 1867, the Congress passed a Judicial Act that amended the original Judicial Act of 1789, the first organization of the Judicial Branch of the government. It is titled:
An Act to amend "An Act to establish the judicial Courts of the United States," approved September twenty-fourth, seventeen hundred and eighty-nine.
This first section of this Act is procedural to Habeas Corpus. The second section, however, removes from any State court any action that draws into "question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity, or where is drawn into question the validity of a statute of or an authority exercised under any State, on the ground of their being repugnant to the constitution, treaties, or laws of the United States...", and puts it under the Supreme Court. To wit:
"That a final judgment or decree in any suit in the highest court of a State in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United 'States, and the decision is against their validity, or where is drawn in question the validity of a statute of or an authority exercised under any State, on the ground of their being repugnant to the constitution, treaties, or laws of the United States, and the decision is in favor of such their validity, or where any title, right, privilege, or immunity is claimed under the constitution, or any treaty or statute of or commission held or authority exercised under the United States, and the decision is against the title, right, privilege, or immunity specially set up or claimed by either party under such constitution, treaty, statute, commission, or authority, may be re-examined and reversed or affirmed in the Supreme Court of the United States,.."
Congress, no doubt, had concerns over the constitutionality of Reconstruction, and prepared the groundwork for both habeas corpus and any laws that challenged the validity of the actions of the Executive, or laws repugnant to the Constitution.
On April 15, 1867, the State of Georgia filed an action against Secretary of War Stanton (State of Georgia v. Stanton 73 U.S. 50), which is court of original jurisdiction, as per this Act (Judiciary Act of February 5, 1867). The case was filed to challenge the constitutionality of the First (March 2, 1867) and Second (March 23, 1867) Reconstruction Acts, both of which had been vetoed by President Johnson and overridden by the requisite two-thirds vote of both houses of Congress.
Clearly, there was disagreement as to the constitutionality of the two acts. Congress felt that they were constitutional in that they passed them and then passed them, again, to override the veto. On the other hand, the President understood them to be unconstitutional and vetoed them, giving his reasoning.
Equally clearly, the Supreme Court stepped away from the "judicial review" doctrine established by Marshall and suggested that a judicial veto (siding with the President) would be like a Presidential Veto, which could be overridden by the Congress.
To skirt the issue, the Court decided that the Act of Congress (February 5, 1867) which gave original jurisdiction to the Supreme Court was done so to allow the Court to decide whether the Congress had the authority to enact laws repugnant to the Constitution. The court dismissed the matter "for want of jurisdiction". Henceforth, unconstitutional acts of Congress could not be questioned.
The above acts, both Reconstruction and Judicial, are the more significant acts by the Congress, with subsequent support from the Supreme Court, which began the decline of obedience to the Constitution. Their purpose, against the will of the then President, Andrew Johnson, was to force the "rebel states" into absolute submission to the Congress. This would allow federal manipulation of states' rights, including voting, new constitutions, politics and the very nature of the south into subservience to the federal government. Ultimately, this would lead to the formation of the Klu Klux Klan in an effort to regain some of what Congress had stolen from the politics of the south.
It would also lay the foundation for the illegal (though it cannot be challenged in court), ratification of the Fourteenth Amendment to the Constitution.
* * * * * * *
What the Fourteenth Amendment says
Section 1--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; 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.
Section 2--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. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Section 3--No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Section 4--The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay 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; but all such debts, obligations and claims shall be held illegal and void.
Section 5--The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
* * *
First, we will look at Section 1, "All persons born or naturalized... and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." seems to impose dual citizenship -- of the United States and of the State. There is no doubt that there was not a class of citizen known as "citizen of the United States" prior to the Fourteenth Amendment, so it appears that this is imposed on those "subject to the jurisdiction" of the United States, while effecting no change to anyone who is not "subject to the jurisdiction thereof".
To better understand this, it goes on to say that, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States..." These "privileges and immunities" are found in Article IV, Section 2, of the Constitution, "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States". So, why would these "privileges and immunities" have to be conferred by the Fourteenth Amendment, if the Constitution has already conferred them? And, why would the Amendment word it so as to apply only to "citizens of the United States"? It prohibits the state from making or enforcing any law that would abridge "the privileges and immunities of citizens of the United States", though it is silent on that part already conferred by Article IV, Section 2. It cannot, and it need not, confer that which already exists, so, it is applicable ONLY to those who have become "citizens of the United States" by virtue of the Amendment, and is worded only to that affect. Note that it says nothing about "rights".
Since it has created a new class of citizen, "citizen of the United States"', it, was intended to extend federal (United States) jurisdiction into the "privileges and immunities" (as well as due process) requirements, to those who were being made new citizens of both a federal and state nature. Otherwise, it would be surplus, or, unnecessary, verbiage. It is difficult to understand that something as important as an amendment to the Constitution would not be well considered, and therefore, any unnecessary verbiage would be included, without cause.
In addition, though those people affected by the Amendment are also granted state citizenship, the prerogative of state citizenship was already conferred by the Constitution (See Dred Scott v. Sandford, below). The "privileges and immunities" were already in place, though not changed by this Amendment (See Twining v. State of New Jersey, below).
Now, Section 2 of the Fourteenth Amendment has a bit of a conundrum. If those subject to the jurisdiction of the United States were made citizens, then why would not the Indians be included? The Amendment clearly excludes "Indians not taxed". Were they not "subject to the jurisdiction of the United States"? If so, and if the Fourteenth Amendment made them "citizens of the United States", why would they not be counted in conjunction with the determination of the apportioning of Representatives?
Intent of the Fourteenth Amendment
Perhaps a review of the legislative record (legislative intent) will provide some insight into what the purpose of the Amendment was. After all, if there is a clear intent in the passage of a law, or ratification of an Amendment, that must be what the law, or Amendment, means. It is not to be changed by opinion, rather, it is to be what was intended at the time it became law.
The following quotes are from the Congressional Globe, the record of the business of Congress (prior to the Congressional Record), Senate hearings, May 30, 1866, discussing the proposed Fourteenth Amendment (Pages 2090 - 2902).
The Congressional Globe, May 30, 1866, The United States Senate debating the proposed Fourteenth Amendment to the Constitution.
The first point of discussion is whether the phrase "Indians not taxed" should be included in Section one, of the proposed Amendment. The discussion is about just who is able to qualify as "subject to the jurisdiction of the United States": [Note: underscores are mine, brackets [**] are for clarification; quotes from the Congressional Globe are indented.]
Mr. Howard: [at page 2890]
This will not, of course, include persons born in the United States who were foreigners, aliens, who belong to the families of embassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum [something that is desired or felt to be essential. gh] in the jurisprudence and legislation of this country.
This appears to be addressed to clarify (or include) those who are considered as outside of the protections of the Constitution. [See Dred Scott discussion, below]
Mr. Howard: [at page 2890]
I hope that amendment [Indian not taxed] to the amendment [14th] will not be adopted. Indians born within the limits of the United States, and who maintain their tribal relations, are not, in the sense of this amendment, born subject to the jurisdiction of the United States. There are regarded, and always have been in our legislation and jurisprudence, is being quasi foreign nations.
Consider that those who were citizens of a State were also under a jurisdiction other than the United States, both before and after the War.
Mr. Doolittle: [at page] 2892
I moved this amendment because it seems to me very clear that there is a large mass of Indian population who are clearly subject to the jurisdiction of the United States who ought not to be included as citizens of the United States. All the Indians upon reservations within the several states are most clearly subject to our jurisdiction, both civil and military. We appoint civil agents who have control over them on behalf of the government. We have our military commanders in the neighborhood of the reservations, who have complete control. For instance, there are seven or 8000 Navajos at this moment of your the control of General Carleton, in New Mexico, upon the Indian reservations, managed, controlled, fed at the expense of the United States, and fed by the War Department, managed by the War Department, and at a cost to this government of almost a million and a half dollars every year. Because it is managed by the War Department, paid out of the commissary fund and out of the appropriations for quartermasters stores, the people do not realized the enormous expense which is upon their hands.
This argument is to fail, since the amendment to the amendment will fail, since it is unnecessary. Jurisdiction is the issue at hand, and though there is a degree of jurisdiction, it will not satisfy the necessary jurisdiction as expressed in section one of the amendment.
Mr. Trumbull: [at page 2893]
It cannot be said of any Indian who owes allegiance, partial allegiance and if you please, to some other government that he is " subject to the jurisdiction of the United States."
If there is "partial allegiance" to another entity, then he is not "subject to the jurisdiction of the United States". Pretty straight forward.
Mr. Johnson: [at page 2893]
The Senate are not to be informed that very serious questions have arisen, and some of them have given rise to embarrassments, as to who are citizens of the United States, and what are the rights which belong to them as such; and the object of this amendment is to settle that question. I think, therefore, with the committee to whom the matter was referred, and by whom the report had been made, that it is very advisable in some form or other to define what citizenship is; and I know no better way of accomplishing that than the way adopted by the committee. The Constitution as it now stands recognizes a citizenship of the United States. It provides that no person shall be eligible to the Presidency of the United States except a natural born citizen of the United States or one who was in the United States at the time of the adoption of the Constitution; it provides that no person shall be eligible to the office of Senator who has not been a citizen of the United States for nine years; but there is no definition in the Constitution as it now stands as to citizenship. Who is a citizen of the United States is an open question. The decision of the courts and the doctrine of the commentators is that every man was a citizen of a State becomes ipso facto a citizen of the United States; but there is no definition as to how citizenship can exist in the United States except through the medium of a citizenship in a State.
If there are to be citizens of the United States entitled everywhere to the character of citizens of the United States there should be some certain definition of what citizenship is, what has created the character of citizens as between himself and the United States, and the amendment says that citizenship may depend upon birth, and I know of no better way to give rise to citizenship than the fact of birth within that territory of United States, born of parents who at the time or subject to the authority of the United States. I am, however, by no means prepared to say, as I think I have intimidated before, that being born within the United States, independent of any new constitutional provision on the subject, creates the relation of citizen to the United States.
"[A]s to who are citizens", well, that is the very matter determined by the Dred Scott Court, "The words 'people of the United States' and 'citizens' are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government through their representatives." That is what has been, to this point in our history, the definition of both "citizen of the United States" and "people".
Birth was not a factor as much as parentage. For instance, a person both elsewhere and "been seven Years a Citizen of the United States: qualifies, on that point, to be a Representative in the House of Representatives. Similarly, the Senate requires "nine Years" as a citizen. Birth, obviously, was not a factor, heritage was.
Finally, Mr. Johnson says that birth in the United States does not confer citizenship, heretofore. Hence, the need for the amending -- to open up a new class of citizen.
Mr. Johnson: [at page 2894]
In a apportioning the representation, as you propose to do by virtue of the second section, you exclude from the basis "Indians not taxed." What does that mean? The honorable member from Illinois says that that is very uncertain. What does it mean? It means, or would mean, if inserted in the first section, nothing, according to the honorable member from Illinois. Will, if it means nothing inserted in the first section it means nothing were it is proposed to be inserted in the second section. But I think my friend from Illinois will find that these words are clearly understood and have always been understood; they are now almost technical terms. They are found, I think, in nearly all the statutes of the subject; and if I am not mistaken, the particular statute upon which my friend from Illinois so much relied as one necessary to the peace of the country, the civil rights bill, has the same provision in it, and that bill, I believe was prepared altogether, or certainly principally, by my friend from Illinois. I read now from the civil rights bill as it passed:
"that all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens."
This is, without a doubt, a conundrum. It is never fully answered, though it appears that some in the Senate wish to confer citizenship on anybody in the world, except Indians, while others do not understand why Indians should be excepted, especially only in the second section.
Mr. Van Winkle: [at page 2894]
If the senator will permit me, I wished to remind them of a citation from a decision of the supreme court that the himself made here, I think, when the veto of the civil rights bill was under discussion; and if I correctly understand it, as you read it, the supreme court decided that these untaxed Indians were subjects, and distinguish between subjects and citizens.
At least, we have admission that the Indians are "subjects" and, therefore, subject to the jurisdiction, hence the need to mitigate their inclusion in the first section, and exclude them from the second section.
Mr. Howard: [at page 2895]
I think the language as it stands is sufficiently certain and the exact. It is that "all persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."
I concur entirely with the honorable senator from Illinois, and holding that the word "jurisdiction," as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive, or by the judicial department. . .
So, we have, as has been pointed out, "birth" brought into the equation of citizenship, coupled with "jurisdiction". That jurisdiction, however, must be full and complete. This would include those who were freed by the 13th Amendment, former slaves freed by other means, and, foreigners who, by their immigrating to the United States, have subjected themselves to the "complete jurisdiction", by virtue of their guest status.
Mr. Howard:[ at page 2896]
The courts of the United States have had occasion to speak on this subject, and from time to time they have declared that the Indians are subjects of the United States, not citizens; and that is the very word in your amendment where they are" subject to the jurisdiction" of the United States. Why, sir, what does it mean when you say that a people are subject to the jurisdiction of the United States? Subject, first, to its military power; second, subject to its political power; third, subject to its legislative power; and who doubts our legislative power over the reservations upon which these Indians are settled?
Mr. Howard provides three forms of jurisdiction: military; political; and, legislative. The Constitution makes no provision for either of the first two, and only limited provision for the third. This, then, would imply that the requisite jurisdiction, as required by the amendment, does not exist on any but those who were both "citizens of the United States", and those of that nature, and citizens of the respective states.
The debate now moves on to consideration of the need for the Fourteenth Amendment:
Mr. Fessenden: [at page 2896]
I thought the Senator was speaking of this first part of the section, the amendment, not the whole.
No, sir; that is proposed by the senator from Michigan. As I understand, a member from Ohio, Mr. Bingham, who in a very able speech in the House maintained that the civil rights bill was without any authority in the Constitution, brought forward the proposition in the House of Representatives to amend the Constitution so as to enable Congress to declare the civil rights of all persons and that constitutional amendment, Mr. Bingham being himself one of the committee of 15, was referred by the House to the committee, and from the committee and has been reported. I say I have a right to infer that it was because Mr. Bingham and others of the House of Representatives and other persons upon the committee had doubts, at least, as to the constitutionality of the civil rights bill that this proposition to amend the constitution now appears to give it validity and force. It is not an imputation upon any one.
Mr. Grimes: It is an imputation upon every member who voted for the bill, the inference being legitimate and logical that they violated their oaths and knew they did so when they voted for the civil rights bill.
Mr. Doolittle: The Senator goes too far. What I say is that they had doubts.
Mr. Fessenden: I will say to the Senator one thing: whatever may have been Mr. Bingham's motives in bringing it forward, he brought it forward some time before the civil rights bill was considered at all and had it referred to the committee, and it was discussed in the committee long before the civil rights bill was passed. That I will say to him further, that during all the discussions in the committee that I heard, nothing was ever said about the civil rights bill in connection with that. It was placed on entirely different grounds.
Mr. Doolittle: I will ask the senator from Maine this question: if Congress, under the Constitution now has the power to declare that" all persons born in the United States, and not subject to any foreign Power, excluding Indians not taxed, are hereby declared to be citizens of the United States," what is the necessity of amending the Constitution at all on this subject?
Mr. Fessenden: I do not choose that the Senator shall get off from the issue he presented. I meet him right there on the first issue. If he wants my opinion upon other questions, he can ask it afterward. He was saying that the committee of fifteen brought this proposition forward for a specific object.
Mr. Doolittle: I said the committee of fifteen brought it forward because they had doubts as to the constitutional power of Congress to pass the civil rights bill.
Mr. Fessenden: Exactly; and I say, in reply, that if they had doubts, no such doubts were stated in the committee of fifteen, and the matter was not put on that ground at all. There was no question raised about the civil rights bill.
Mr. Doolittle: Then I put the question to the Senator: if there are no doubts, why amend the Constitution on that subject?
Mr. Fessenden: That question the Senator may ask to suit himself. It has no reference to the civil rights bill.
Mr. Doolittle: That does not meet the case at all. If my friend maintains that at this moment the Constitution of the United States, without amendment, gives all the power you ask, why do you put this new amendment into it on that subject?
Mr. Howard: If the Senator from Wisconsin wishes an answer, I will give him one such as I am able to give.
Mr. Doolittle: I was asking the Senator from Maine.
Mr. Howard: I was a member of the same committee, and the Senator's observations apply to me equally with the Senator from Maine. We desired to put this question of citizenship and the rights of citizens and freedmen under the civil rights bill beyond the legislative power of such gentlemen as the Senator from Wisconsin, who would pull the whole system up by the roots and destroy it, and expose the freedmen again to the oppressions of their old masters.
Mr. Williams: [at page 2897]
In one sense, all persons born within the geographical limits of the United States are subject to the jurisdiction of the United States, but they are not subject to the jurisdiction of the United States in every sense. . . All persons living within a judicial district may be said, in one sense, to be subject to the jurisdiction of the court in that district, but they are not in every sense subject to the jurisdiction of the court until they are brought, by proper process, within the reach of the power of the court. I understand the words, "subject to the jurisdiction of the United States," to mean fully and completely subject to the jurisdiction of the United States.
Mr. Salisbury: I do not presume that any one will pretend to disguise the fact that the object of this first section is simply to declare that negroes shall be citizens of the United States. There can be no other object in it, I presume, then a further extension of the legislative kindness and beneficence of Congress towards that class of people.
"The poor Indian, whose untutored mind,
Sees God in clouds, or heirs him in the wind,"
was not thought of. I say this not meaning it to be any reflection upon the honorable committee who reported the amendment, because for all the gentlemen composing it I have a high respect personally; but that is evidently the object. I have no doubt myself of the correctness of the position, as a question of law, taken by the honorable Senator from Wisconsin; but, sir, I feel disposed to vote against this amendment, because if these negroes are to be made citizens of the United States, I can see no reason in justice or in right why the Indians should not be made citizens. If our citizens or to be increased in this wholesale manner, I cannot turn my back upon that persecuted race, among whom are many intelligent, educated men, who embrace as fellow-citizens the negro race.
Regardless of whether, as Mr. Fessenden say, it was brought up even before the "civil rights bill", there must be a serious question as to the constitutionality of the "bill", otherwise, the actions to secure an amendment to the Constitution are moot.
The argument that the bill could be pulled "up by its roots and destroy[ed]" does not hold water. Citizenship cannot be revoked, as had been established by the Supreme Court. Therefore, those who were granted citizenship by the "civil rights bill" were secured in what had been granted to them.
It is far more likely that they were concerned that, eventually, the civil rights bill would be overturned as unconstitutional, absent an amendment granting the Constitution the authority of providing for citizenship.