16 After the war ended, the League worked for the adoption of a Republican policy to extend equal political and legal rights to Negroes. In November 1865, its New York State Council adopted a resolution embodying these principles. It provided: 17 Resolved that all persons, without distinction of in any State, or by their indisposition or in- Copies of the document were sent to members of Congress and to other influential persons. Congress Responds In December 1865, Congress established the Joint Committee on Reconstruction "to inquire into the condition of the States which formed the so-called Confederate States of America and report whether they, or any of them, are entitled to be represented in either house of Congress." While the committee was hearing testimony from scores of witnesses, white and Negro, northerner and southerner, Congress enacted legislation extending the life of the Freedmen's Bureau and enlarging its powers within those States "in which the ordinary course of judicial proceedings has been interrupted by the rebellion." The bill established military 16 Franklin, op. cit. supra note 14, at 321-22. 17 Quoted in Franklin, op. cit. supra note 15. jurisdiction over all parts of the United States containing refugees and freedmen, extending it in 11 States to all cases affecting freedmen and refugees discriminated against "by local law, custom, or prejudice." White persons charged with depriving a freedman of "any civil rights or immunities belonging to white persons" were to be tried by a military judge, without jury, and if convicted, could be imprisoned, fined or both. The bill referred to certain of the Johnson Reconstruction States as not "fully restored in all their constitutional relations to the United States." It was predictable that President Johnson would exercise his veto power. When he did, he inaugurated open warfare with the powerful but as yet untried "Radical" wing of Congress.18 On March 13, 1866, after weeks of debate in both Houses, Congress adopted civil rights legislation embracing many of the "objectionable" provisions of the Freedmen's Bureau Bill. It provided, in part: 19 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, and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, and shall be sub 188 Richardson, op. cit. supra note 2 at 3596-603; McKitrick. op. cit. supra note 6, at 315-16. 19 Act of Apr. 9, 1866, 14 Stat. 27. See note 24, infra. ject to like punishment, pains, and penalties, and to Congressional authority to declare a native-born person a citizen was questioned. Senator Peter G. Van Winkle of West Virginia declared that the provision could not be justified under the power of Congress to pass uniform laws of naturalization, for "it involves not only the Negro race, but other inferior races that are now settling on our Pacific coast, and perhaps involves a future immigration to this country of which we have no conception." " "20 Senator Lyman Trumbull of Illinois argued that there was no doubt of the constitutional authority of Congress to declare native born persons citizens. Such a declaration he considered necessary to remove any doubt that might persist in any of the former Confederate States.21 Further debate centered on whether the legislation carried with it the right to vote and whether it violated the right of the States to establish qualifications for citizenship. Those who opposed the bill answered both questions in the affirmative. Senator Jacob Howard of Michigan, a member of the Judiciary Committee when the 13th amendment was drafted, declared that there was no invasion of the "legitimate rights of the States. It contemplates nothing of the kind; but it simply gives to persons who are of different races or colors the same civil rights. We will not say to the emancipated slave, 'We set you free, but beyond this we give you no protection; we allow you again to be reduced to slavery by your old masters, because it is the right of the State which has enslaved you for two hundred and fifty years.' 22 On March 27, 1866, President Johnson vetoed this legislation. His message to the Senate set the tone that was to per 20 Cong. Globe, 39th Cong., 1st Sess., 475 (1866). 21 Id. at 497. 22 Id. at 504. meate Executive policy for the remainder of his term in office:28 In all our history, in all our experience as a people living under Federal and State law, no such system as that contemplated by the details of this bill has ever before been proposed or adopted. They establish for the security of the colored race safeguards which go infinitely beyond any that the General Government has ever provided for the white race. In fact, the distinction of race and color is by the bill made to operate in favor of the colored and against the white race. They interfere with the municipal legislation of the States, with the relations existing exclusively between a State and its citizens, or between inhabitants of the same State-an absorption and assumption of power by the General Government which, if acquiesced in, must sap and destroy our federative system of limited powers and break down the barriers which preserve the rights of the States. It is another step, or rather stride, toward centralization and the concentration of all legislative powers in the National Government. The tendency of the bill must be to resuscitate the spirit of rebellion and to arrest the progress of those influences which are more closely drawing around the States the bonds of union and peace. . On April 9, 1866, Congress overrode the President's veto." The Civil Rights Act of 1866 became law. The President did nothing to implement the act. Supporters who might have agitated for vigorous enforcement turned their efforts instead toward incorporating the provisions of the act into the 14th amendment. In this manner, 23 8 Richardson, op. cit. supra note 2, at 3610–11. Cong. Globe, 39th Cong., 1st Sess. 1861 (1866). 24 they hoped to answer questions of constitutionality and avert any prospect of repeal by a subsequent Congress.25 Radical Rule Anticipating an inevitable attack on the constitutionality of the Civil Rights Act of 1866, the Joint Committee on Reconstruction on April 30, 1866, formulated a set of resolutions which ultimately became the 14th amendment to the Constitution of the United States.26 The proposed legislation enjoined the States from abridging the privileges or immunities of citizens of the United States, depriving any 25 Flack, The Adoption of the Fourteenth Amendment 75–87 (1908). 26 The full text of the 14th amendment is as follows: 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 |