The Reconstruction Amendments: The Essential Documents, Volume 2

The Reconstruction Amendments

The Reconstruction Amendments

The Essential Documents / Volume 2

Edited by Kurt T. Lash

The University of Chicago Press     Chicago and London

The University of Chicago Press, Chicago 60637

The University of Chicago Press, Ltd., London

© 2021 by The University of Chicago

All rights reserved. No part of this book may be used or reproduced in any manner whatsoever without written permission, except in the case of brief quotations in critical articles and reviews. For more information, contact the University of Chicago Press, 1427 E. 60th St., Chicago, IL 60637.

Published 2021

Printed in the United States of America

30 29 28 27 26 25 24 23 22 21    1 2 3 4 5

ISBN-13: 978-0-226-68895-4 (cloth)

ISBN-13: 978-0-226-68900-5 (e-book)

DOI: https://doi.org/10.7208/chicago/9780226689005.001.0001

Library of Congress Cataloging-in-Publication Data

Names: Lash, Kurt T., editor.

Title: The Reconstruction amendments : the essential documents / edited by Kurt T. Lash.

Description: Chicago ; London : The University of Chicago Press, 2021. | Includes bibliographical references and index. | Contents: Volume 1. Part 1. The antebellum Constitution; Part 2. The Thirteenth Amendment — Volume 2. Part 1. The Fourteenth Amendment; Part 2. The Fifteenth Amendment.

Identifiers: LCCN 2020013708 | ISBN 9780226688787 (v. 1 ; cloth) | ISBN 9780226688954 (v. 2 ; cloth) | ISBN 9780226688817 (v. 1 ; ebook) | ISBN 9780226689005 (v. 2 ; ebook)

Subjects: LCSH: United States. Constitution. 13th–15th Amendments—History—Sources. | Constitutional amendments—United States—History—19th century—Sources. | Constitutional history—United States—19th century—Sources.

Classification: LCC KF4757 .R43 2021 | DDC 342.7303/909034—dc23

LC record available at https://lccn.loc.gov/2020013708

This paper meets the requirements of ANSI/NISO Z39.48-1992 (Permanence of Paper).

Contents

Introduction to Volume 2

Part 1. The Fourteenth Amendment

A. Drafting

Introduction to Part 1A

The Thirty-Ninth Congress: Membership

1. US Senate, Opening Day of Thirty-Ninth Congress (Dec. 4, 1865)

2. US House, Opening Day of Thirty-Ninth Congress, Exclusion of Former Rebel States, Appointing Joint Committee on Reconstruction (Dec. 4, 1865)

3. US House, Thaddeus Stevens, Proposed Amendments (Dec. 5, 1865)

4. US House, John Bingham, Proposed Amendment (Dec. 6, 1865)

5. US Senate, Appointing Joint Committee on Reconstruction (Dec. 12, 1865)

6. Joint Committee on Reconstruction, Membership (1865–1867)

7. US Senate, Freedmen’s Bureau Bill, Black Codes (Dec. 13, 1865)

8. Secretary of State William Seward, Proclamation of Ratification of the Thirteenth Amendment (Dec. 18, 1865)

9. US Senate, Lyman Trumbull, Freedmen’s Bureau Bill (Dec. 19, 1865)

10. US House, Passage of Proposed Amendment on the Rebel Debt (Dec. 19, 1865)

11. Elizabeth Cady Stanton, This Is the Negro’s Hour, National Anti-Slavery Standard (Dec. 30, 1865)

12. US House, James G. Blaine, Proposed Suffrage-Based Apportionment Amendment (Jan. 8, 1866)

13. Joint Committee, Proposed Apportionment Amendment, Exclusion of Insurgent States (Jan. 9, 1866)

14. US House, John Bingham, Proposed Amendment to Grant Congress Power to Secure Equal Personal Rights (Jan. 9, 1866)

15. US Senate, Lyman Trumbull, Judiciary Committee Reports S. Nos. 60 & 61 (Freedmen’s Bureau and Civil Rights Bills) (Jan. 11, 1866)

16. US Senate, Lyman Trumbull, Reporting Amendments to Civil Rights Bill (Jan. 12, 1866)

17. Joint Committee, Proposed Amendments, Apportionment, Power to Secure to All Persons Equal Protection in Their Rights of Life, Liberty and Property (Jan. 12, 1866)

18. US Senate, Debate, Freedmen’s Bureau Bill (Jan. 19, 1866)

19. Joint Committee, Proposed Amendments, Vote on Apportionment Amendment (Jan. 20, 1866)

20. US House, Debate, Apportionment Amendment (Jan. 22, 1866)

21. US House, Debate, Apportionment Amendment, Women’s Suffrage Petition (Jan. 23, 1866)

22. US House, Debate, Apportionment Amendment (Jan. 24, 1866)

23. US House, Debate, Apportionment Amendment, Speech of John Bingham (Jan. 25, 1866)

24. US House, Debate, Apportionment Amendment, Speech of William Wright (D-NJ) (Jan. 26, 1866)

25. Joint Committee, John Bingham, Proposed Amendment Granting Congress Power to Enforce the Rights of Citizens and All Persons (Jan. 27, 1866)

26. US Senate, Debate, Civil Rights Bill, Proposed Addition of Citizenship Clause (Jan. 29, 1866)

27. US Senate, Debate, Civil Rights Bill, Amended Citizenship Clause (Jan. 30, 1866)

28. US House, Proposed Apportionment Amendment Referred Back to Joint Committee (Jan. 30, 1866)

29. US House, Apportionment Amendment, Speech of Thaddeus Stevens, Vote and Passage (Jan. 31, 1866)

30. US House, Freedmen’s Bureau Bill, Adding the Constitutional Right to Bear Arms (Feb. 1, 1866)

31. US Senate, Civil Rights Bill, Debate, Vote, and Passage (Feb. 2, 1866)

32. US House, Freedmen’s Bureau Bill, Debate and Passage (Feb. 2, 1866)

33. Joint Committee, John Bingham, Proposed Amendment Granting Power to Secure the Rights of Citizens in the Several States and to All Persons in the Several States Equal Protection in the Rights of Life, Liberty and Property (Feb. 3, 1866)

34. US Senate, Apportionment Amendment, Speech of Charles Sumner (Feb. 6, 1866)

35. US Senate, Apportionment Amendment, Remarks of William Pitt Fessenden (Feb. 7, 1866)

36. Joint Committee, Adoption of John Bingham’s Version of Proposed Amendment (Feb. 10, 1866)

37. US Senate, William Pitt Fessenden Reports Proposed Amendment (Feb. 13, 1866)

38. US Senate, Freedmen’s Bureau Bill, President Andrew Johnson’s Veto Message (Feb. 19, 1866)

39. US Senate, Freedmen’s Bureau Bill, Speech of Lyman Trumbull, Vote to Override Fails (Feb. 20, 1866)

40. US House, John Bingham Reports Proposed Amendment Empowering Congress to Secure the Privileges and Immunities of Citizens and the Due Process Rights of All Persons, Response by Andrew Rogers (Feb. 26, 1866)

41. US House, Debate, Proposed Amendment Empowering Congress to Secure the Privileges and Immunities of Citizens and the Due Process Rights of All Persons (Feb. 27, 1866)

42. US House, Debate Continued, Privileges and Immunities Amendment, Speeches of John Bingham and Giles Hotchkiss, Vote to Postpone Consideration (Feb. 28, 1866)

43. US House, Debate, Civil Rights Bill, Speeches of James Wilson and M. Russell Thayer (Mar. 1–2, 1866)

44. US Senate, Debate, Apportionment Amendment, Opposition of Charles Sumner (Mar. 7, 1866)

45. US House, Debate, Civil Rights Bill (Mar. 8, 1866)

46. US House, Debate, Civil Rights Bill, Speech of Columbus Delano (R-OH) (Mar. 8, 1866)

47. US Senate, Debate, Apportionment Amendment, Fails Two-Thirds Vote (Mar. 9, 1866)

48. US House, Debate, Civil Rights Bill, Speech of John Bingham in Opposition (Mar. 9, 1866)

49. US House, Debate, Civil Rights Bill, Vote and Passage (Mar. 13, 1866)

50. US Senate, Motion to Retroactively Exclude John Stockton (Mar. 22, 1866)

51. US Senate, President Andrew Johnson’s Message Accompanying Veto of the Civil Rights Bill (Mar. 27, 1866)

52. US Senate, Exclusion of John Stockton (Mar. 27, 1866)

53. US Senate, Civil Rights Bill, Veto Override (Apr. 6, 1866)

54. US House, Civil Rights Bill, Speech of William Lawrence, Veto Override (Apr. 7, 1866)

55. S. S. Nicholas, The Civil Rights Bill (Apr. 12, 1866)

56. News of Proposed Amendments in the Joint Committee on Reconstruction, Chicago Tribune (Apr. 16, 1866)

57. Joint Committee, Thaddeus Stevens Introduces Five-Section Constitutional Amendment (Apr. 21, 1866)

58. Joint Committee, Proposed Constitutional Amendment (Apr. 25, 1866)

59. Joint Committee, Proposed Constitutional Amendment, Adoption of John Bingham’s Draft of Section One (Apr. 28, 1866)

60. US House, Thaddeus Stevens Introduces Proposed Five-Section Fourteenth Amendment (Apr. 30, 1866)

61. The Progress of Reconstruction—What the ‘Secret Directory’ Proposes, New York Times (Apr. 30, 1866)

62. US House, Proposed Fourteenth Amendment, Speech of Thaddeus Stevens Introducing the Amendment, Debate (May 8, 1866)

63. US House, Proposed Fourteenth Amendment, Debate and Passage (May 10, 1866)

64. US Senate, Proposed Fourteenth Amendment, Speech of Jacob Howard Introducing the Amendment (May 23, 1866)

65. The Reconstruction Debate in the Senate, Mr. Howard Speaks on Behalf of the Committee, New York Times (May 24, 1866)

66. US Senate, Proposed Fourteenth Amendment, Debate, Citizenship Clause Added, Section Three Removed and Replaced, Alterations to Section Four (May 29, 1866) /

67. US Senate, Proposed Fourteenth Amendment, Debate (May 30, 1866)

68. US Senate, Proposed Fourteenth Amendment, Debate Continued (May 31, 1866)

69. US Senate, Proposed Fourteenth Amendment, Debate Continued (June 4, 1866)

70. US Senate, Proposed Fourteenth Amendment, Debate Continued, Speech of Luke Poland, Remarks of William M. Stewart (June 5, 1866)

71. US Senate, Proposed Fourteenth Amendment, Speech of Garrett Davis (June 7, 1866)

72. US Senate, Proposed Fourteenth Amendment, Debate, Passage of Amended Version (June 8, 1866)

73. Majority and Minority Reports of the Joint Committee (June 8, 1866)

74. US House, Proposed Fourteenth Amendment, Speech of Thaddeus Stevens, Vote and Passage of Amended Senate Version (June 13, 1866)

75. US House, Proposed Fourteenth Amendment, Discussion Regarding Presentment to the President for Signature (June 15, 1866)

76. US Senate, Proposed Fourteenth Amendment, President Andrew Johnson’s Message of Transmission (June 22, 1866)

B. Ratification

Introduction to Part 1B

1. Connecticut, Debate and Ratification of the Fourteenth Amendment (June 25 and 27, 1866)

2. New Hampshire, House Committee Report (Majority and Minority), Ratification of the Fourteenth Amendment (June 26 and July 6, 1866)

3. New Hampshire, House of Representatives, Speech of E. A. Hibbard (June 26, 1866)

4. A Call for a Convention of Southern Loyalists (July 4, 1866)

5. Circular Accompanying the Call for a Convention of Southern Loyalists (July 10, 1866)

6. Congressional Campaign Speeches of Montgomery Blair and George H. Pendleton, Reading, PA (July 18, 1866)

7. Tennessee, Gov. William Brownlow’s Proclamation and Address, Ratification (July 4–19, 1866)

8. US House, Readmission of Tennessee, Speech of John Bingham (July 20 and 23, 1866)

9. Speech of Indiana Gov. Oliver P. Morton on the Fourteenth Amendment, New Albany, IN (July 27, 1866)

10. The New Orleans Riot, Albany Evening Journal (Aug. 1, 1866)

11. The Rebel Massacre in New Orleans and The Right of Free Assemblage, Evening Telegraph (Aug. 1, 1866)

12. Speech of Sen. Lyman Trumbull (R-IL), Chicago, IL (Aug. 2, 1866)

13. Speech of Rep. Schuyler Colfax (R-IN), Indianapolis, IN (Aug. 7, 1866)

14. Speech of Sen. Thomas A. Hendricks (D-IN), Indianapolis, IN (Aug. 8, 1866)

15. Speech of Sen. Henry Lane (R-IN), Indianapolis, IN (Aug. 18, 1866)

16. Speech of Gen. George Morgan, Coshocton, OH (Aug. 21, 1866)

17. Speech of Rep. John Bingham (R-OH), Bowerston, OH (Aug. 24, 1866)

18. Speech of Rep. Columbus Delano (R-OH), Coshocton, OH (Aug. 28, 1866)

19. Speech of President Andrew Johnson, New York, NY (Aug. 29, 1866)

20. The Appeal, Southern Loyalists Convention, Philadelphia, PA (Sept. 6, 1866)

21. Frederick Douglass, Speech at Southern Loyalists Convention, Philadelphia, PA (Sept. 6, 1866)

22. President Andrew Johnson, Remarks on the New Orleans Riot, St. Louis, MO (Sept. 8, 1866)

23. New Jersey, Legislative Debates and Ratification (Sept. 11, 1866)

24. Speech of Sen. Henry Wilson (R-MA), Anderson, IN (Sept. 22, 1866)

25. Speech of Sen. John Sherman (R-OH), Cincinnati, OH (Sept. 28, 1866)

26. Speech of Gen. Benjamin Butler, Candidate for House of Representatives from Massachusetts, Toledo, OH (Oct. 2, 1866)

27. A Little More about Suffrage, New Orleans Times (Oct. 15, 1866)

28. Speech of Wendell Phillips on the Fourteenth Amendment, Cooper Institute (Oct. 25, 1866)

29. Oregon, Legislative Debate and Ratification (Sept. 14 and 19, 1866)

30. A Clear Issue, Harper’s Weekly (Oct. 6, 1866)

31. Texas, House Report and Rejection of Proposed Fourteenth Amendment (Oct. 13, 1866)

32. Texas, Senate Report and Rejection of Proposed Fourteenth Amendment (Oct. 22, 1866)

33. Vermont, Gov. Paul Dillingham’s Message, Ratification (Oct. 12, 1866)

34. Letter from Secretary of the Interior O. H. Browning to W. H. Benneson and H. V. Sullivan (Oct. 13, 1866) /

35. Secretary Browning’s Letter, Evening Post (Oct. 24, 1866)

36. US Congressional Election Returns, Evening Post (Nov. 7, 1866)

37. Frederick Douglass, Reconstruction, Atlantic Monthly (Nov. 1866)

38. Georgia, Legislature Rejects the Fourteenth Amendment, Richmond Whig (Nov. 13, 1866)

39. Madison, Essays on the Fourteenth Amendment, Nos. I, II, and V, New York Times (Nov. 10, 15, and 28, 1866)

40. Florida, Gov. David S. Walker’s Message to the Legislature (Nov. 14, 1866)

41. The Equal Rights Convention, Remarks of Susan B. Anthony, Elizabeth Cady Stanton, and Frederick Douglass, Albany, NY (Nov. 20, 1866)

42. Florida, Legislative Committee Reports and Rejection of the Fourteenth Amendment (Nov. 23, Dec. 1 and 3, 1866)

43. Virginia, Gov. Francis H. Peirpoint’s Message to the Legislature, Alexandria Gazette (Dec. 4, 1866)

44. Alabama, Gov. Robert M. Patton’s Message to the Legislature, Rejection of the Fourteenth Amendment (Dec. 6 and 7, 1866)

45. North Carolina, Gov. Jonathan Worth’s Message to the Legislature, Joint Committee Report, Rejection of the Fourteenth Amendment (Nov. 20 and Dec. 6, 1866)

46. Arkansas, Senate Committee Report, Rejection of the Fourteenth Amendment (Dec. 10, 1866)

47. South Carolina, Gov. James Orr’s Message to the Legislature, Rejection of the Fourteenth Amendment (Nov. 27, 1866)

48. Ex parte Milligan (1866)

49. Reported Meeting between President Andrew Johnson and South Carolina Commissioner Colonel T. Weatherby, New York Herald (Dec. 28, 1866)

50. Frederick Douglass, An Appeal to Congress for Impartial Suffrage, Atlantic Monthly (Jan. 1867)

51. US House, Proposed Bill for the Restoration of the Southern States, Speech of Thaddeus Stevens (Jan. 3, 1867)

52. Kentucky, Gov. Thomas Bramlette’s Message to the Legislature, Rejection of the Fourteenth Amendment (Jan. 4, 1867)

53. Washington, DC, Passage of the District Suffrage Bill, Right Way (Jan. 19, 1867)

54. Virginia, Debate in the General Assembly, Rejection of the Fourteenth Amendment (Jan. 8–9, 1867)

55. New York, Gov. Reuben Fenton’s Message to the Legislature, Ratification of the Fourteenth Amendment (Jan. 1, 2, and 10, 1867)

56. Ohio, Gov. Jacob Cox’s Message to the Legislature, Ratification of the Fourteenth Amendment (Jan. 2 and 4, 1867)

57. Speech of Rep. George Boutwell (R-MA) on Suffrage and the Fourteenth Amendment, National Anti-Slavery Standard (Jan. 12, 1867)

58. West Virginia, Gov. Arthur Boreman’s Message to the Legislature, Ratification of the Fourteenth Amendment (Jan. 16, 1867)

59. Kansas, Gov. Samuel J. Crawford’s Message to the Legislature, Ratification of the Fourteenth Amendment (Jan. 9–11, 1867)

60. US House, Speech of John Bingham in Opposition to Bill for the Restoration of the Southern States, Exchange with Thaddeus Stevens (Jan. 16, 1867)

61. Indiana, Gov. Oliver P. Morton’s Message to the Legislature, Majority and Minority Committee Reports, Ratification of the Fourteenth Amendment (Jan. 11, 18, and 23, 1867)

62. US House, Cruel and Unusual Punishments Bill, Debate (Jan. 28, 1867)

63. US House, Bill for the Restoration of the Southern States, Vote to Recommit to Committee on Reconstruction (Jan. 28, 1867)

64. Mississippi, Legislative Committee Report, Rejection of the Fourteenth Amendment (Jan. 30, 1867)

65. Louisiana, Gov. J. Madison Wells’s Message to the Legislature, Rejection of the Fourteenth Amendment (Jan. 28, 1867)

66. Proposed Compromise Amendment, New York Times (Feb. 5, 1867)

67. Delaware, Gov. Gove Saulsbury’s Message to the Legislature, Rejection of the Fourteenth Amendment (Jan. 1 and Feb. 14, 1867)

68. Pennsylvania, Legislative Debates on the Proposed Fourteenth Amendment (Jan. 14–Feb. 6, 1867)

69. Pennsylvania, Vote, Ratification of the Fourteenth Amendment (Feb. 6, 1867)

70. Rhode Island, Gov. Ambrose Burnside’s Message to the Legislature, Ratification of the Fourteenth Amendment (Feb. 2–7, 1867)

71. Wisconsin, Gov. Lucius Fairchild’s Message to the Legislature, Minority Committee Report, Ratification of the Fourteenth Amendment (Jan. 10 and 22, 1867)

72. The Amendment—The Situation, Crisis (Feb. 13, 1867)

73. Massachusetts, Legislative Committee on Federal Relations, Majority and Minority Reports on the Proposed Fourteenth Amendment (Feb. 28, 1867)

74. US Congress, First Reconstruction Act (Mar. 2, 1867)

75. US Congress, Tenure in Office Act (Mar. 2, 1867)

76. On the Massachusetts Committee’s Majority Report, Boston Daily Advertiser (Mar. 4, 1867)

77. US Congress, Second Reconstruction Act (Mar. 23, 1867)

78. Maryland, Legislature’s Joint Committee Report, Rejection of the Fourteenth Amendment (Mar. 19 and 23, 1867)

79. Nebraska, Gov. David Butler’s Message to the Legislature, Ratification of the Fourteenth Amendment (May 17, June 8 and 15, 1867)

80. Suspension of Secretary of War Edwin Stanton, Official Correspondence, Cincinnati Daily Gazette (Aug. 13, 1867)

81. Reverdy Johnson, A Further Consideration of the Dangerous Conditions of the Country (Nov. 15, 1867)

82. Ohio, Legislature Rescinds Prior Ratification, Plain Dealer (Jan. 12, 1868)

83. Gen. Ulysses Grant Restores Edwin Stanton to the Office of Secretary of War, New York Tribune (Jan. 15, 1868)

84. President Andrew Johnson Removes Secretary of War Edwin Stanton, Precipitates Impeachment Proceedings, Chicago Republican (Feb. 22, 1868)

85. Iowa, Gov. William M. Stone’s Message to the Legislature, Ratification of the Fourteenth Amendment (Jan. 14 and 27, Mar. 9, 1868)

86. New Jersey, Legislature Rescinds Prior Ratification (Feb. 19, 20, and 25; Mar. 5 and 27, 1868)

87. US House, Receipt and Return of New Jersey Withdrawal of Ratification (Mar. 30, 1868)

88. "Mr. Field’s Argument in the McCardle Case," Report of Congressional Repeal of Supreme Court’s Jurisdiction, New York Herald (Mar. 14, 1868)

89. Arkansas, Gov. Isaac Murphy’s Message to the Legislature, Ratification of the Fourteenth Amendment (Reversing Earlier Rejection) (Apr. 3, 1868)

90. Impeachment . . . The President Pronounced Not Guilty, New York Herald (May 17, 1868)

91. 1868 Republican National Convention and Party Platform, Chicago (May 21, 1868)

92. Florida, Gov. Harrison Reed’s Message to the Legislature, Ratification of the Thirteenth and Fourteenth Amendments (Reversing Earlier Rejection) (June 9, 1868)

93. US Congress, An Act to Admit the States of North Carolina, South Carolina, Louisiana, Georgia, Alabama, and Florida, to Representation in Congress (June 25, 1868)

94. North Carolina, Gov. W. W. Holden’s Message to the Legislature, Ratification of the Fourteenth Amendment (Reversing Earlier Rejection) (July 2, 1868)

95. South Carolina, Ratification of the Fourteenth Amendment (Reversing Earlier Rejection) (July 7 and 9, 1868)

96. Alabama, Ratification of the Fourteenth Amendment (Reversing Earlier Rejection), New Orleans Times (July 14, 1868)

97. Civil Law Restored in Louisiana; Ratification of the 14th Article of Amendment, Boston Daily Journal (July 15, 1868)

98. Secretary of State William Seward, Provisional Proclamation of Ratification of the Fourteenth Amendment (July 20, 1868)

99. US Congress, Senate and House Resolutions Declaring the Ratification of the Fourteenth Amendment (July 21, 1868)

100. Georgia Restored to Civil Authority, New York Times (July 24, 1868)

101. Secretary of State William Seward, Final Proclamation of the Ratification of the Fourteenth Amendment (July 28, 1868)

102. George W. Paschal, The Fourteenth Article, New York Tribune (Aug. 6, 1868)

103. John Bingham, The Great Importance of the Fourteenth Amendment, New York Herald (Dec. 3, 1868)

Part 2. The Fifteenth Amendment

A. Drafting

Introduction to Part 2A

The Fortieth Congress: Membership

1. US Senate, Exclusion of Georgia Senator Joshua Hill, Proposed Suffrage Amendment (Dec. 7, 1868)

2. US House, George Boutwell (R-MA), Proposed Suffrage Bill and Suffrage Amendment (Jan. 11, 1869)

3. US Senate, John B. Henderson (R-MO), Proposed Suffrage and Office Holding Amendment (Jan. 23, 1869)

4. US House, George Boutwell, Proposed Suffrage Bill and Suffrage Amendment (Jan. 23, 1869)

5. US House, Suffrage Amendment, Speech of Charles A. Eldridge (D-WI), Debate (Jan. 27, 1869)

6. US Senate, Suffrage and Office Holding Amendment (Jan. 28, 1869)

7. US House, Suffrage Amendment, Debate on Suffrage Bill (Jan. 28, 1869)

8. US House, Suffrage Amendment, Speech of John Bingham, Debate (Jan. 29, 1869)

9. US House, Suffrage Amendment, Alternative Versions Rejected, Passage of Amendment (Jan. 30, 1869)

10. US Senate, Suffrage and Office Holding Amendment, Debate (Feb. 4, 1869)

11. US Senate, Suffrage and Office Holding Amendment, Speech of Charles Sumner (Feb. 5, 1869)

12. US Senate, Suffrage and Office Holding Amendment, Debate (Feb. 8, 1869)

13. US Senate, Suffrage and Office Holding Amendment, Appointment of Electors, Passage of Dual Amendment (Feb. 9, 1869)

14. Elizabeth Cady Stanton, Women and Black Men, Revolution (Feb. 11, 1869)

15. US House, Suffrage Amendment, Nonconcurrence with Senate Proposal (Feb. 15, 1869)

16. US Senate, Dual Amendment on Suffrage, Office Holding, and Electors; Vote to Recede and Adopt Suffrage Amendment Proposed by House (Feb. 17, 1869)

17. Wendell Phillips, The Senate and the Proposed Amendment, National Anti-Slavery Standard (Feb. 20, 1869)

18. US House, Suffrage Amendment, Addition of Language Protecting the Right to Hold Office (Feb. 20, 1869)

19. US Senate, Suffrage Amendment, Call for Conference with House (Feb. 23, 1869)

20. US House, Suffrage Amendment, Removal of Language Protecting Office Holding, Passes without Debate (Feb. 25, 1869)

21. US Senate, Suffrage Amendment, Debate and Passage (Feb. 26, 1869)

B. Ratification

Introduction to Part 2B

1. Missouri, State Legislature Ratifies Partially Reported Fifteenth Amendment (Mar. 1, 1869)

2. Changing the Constitution by Telegraph, Daily State Register (Mar. 13, 1869)

3. Ratifying the Amendment, Daily Evening Bulletin (Mar. 4, 1869)

4. President Ulysses S. Grant, First Inaugural Address (Mar. 4, 1869)

5. Indiana, Democrats Resign to Prevent Vote (Mar. 3–6, 1869)

6. Michigan, Ratification of the Fifteenth Amendment, Minority Dissent and Protest (Mar. 5, 1869)

7. The Amendment of the Constitution Regarding Suffrage, New York Times (Mar. 8, 1869)

8. Kentucky, Gov. John Stevenson’s Message to the Legislature, Majority and Minority Reports, Rejection of the Fifteenth Amendment (Mar. 10–12, 1869)

9. South Carolina, Statement of House Minority, Ratification of the Fifteenth Amendment (Mar. 11 and 15, 1869)

10. Georgia, Gov. Rufus Bullock’s Message to the Legislature, House Passage and Senate Rejection of the Fifteenth Amendment (Mar. 10–18, 1869)

11. New Jersey, Gov. Theodore Randolph’s Message to the Legislature, Note on Rejection of Amendment (Mar. 24, 1869)

12. Ohio, House Debate, Rejection of the Fifteenth Amendment (Mar. 25 and Apr. 1, 1869)

13. US Congress, The Requirement Bill: Requiring Virginia, Mississippi, and Texas to Ratify the Fifteenth Amendment as a Condition of Readmission, New York Herald (Apr. 10, 1869)

14. Ex parte McCardle (1869)

15. Texas v. White (1869)

16. The Fifteenth Amendment, New York Times (Apr. 12, 1869)

17. New York, Ratification of the Fifteenth Amendment (Apr. 14, 1869)

18. Annual Meeting of the American Equal Rights Association, Remarks of Stephen Foster, Elizabeth Cady Stanton, and Frederick Douglass, New York, NY (May 12–13, 1869)

19. Indiana, Remaining Republican Legislature Ratifies Amendment (May 14, 1869)

20. The Amendment in Indiana, Boston Daily Journal (May 20, 1869)

21. Wendell Phillips Advocates It—Ratification by Rhode Island, New York Times (May 30, 1869)

22. Virginia, Gov. Gilbert Walker’s Message to the Legislature, Ratification of the Fourteenth and Fifteenth Amendments (Oct. 5 and 8, 1869)

23. Elizabeth Cady Stanton, All Wise Women Should Oppose the Fifteenth Amendment, Revolution (Oct. 21, 1869)

24. Tennessee, Gov. Dewitt Senter’s Message to the Legislature, Committee Reports, Rejection of the Fifteenth Amendment (Oct. 13, Nov. 15 and 16, 1869)

25. US Congress, The Georgia Bill, Debate and Passage (Dec. 16, 20, and 21, 1869)

26. New York, Ratification of the Fifteenth Amendment Rescinded, New York Times (Jan. 6, 1870)

27. Kansas, Gov. James M. Harvey’s Message to the Legislature, Repassage of the Fifteenth Amendment (Jan. 12, 1870)

28. Ohio, Legislature Reverses Prior Vote and Ratifies the Fifteenth Amendment (Jan. 3 and 14, 1870)

29. Iowa, Gov. Samuel Merrill’s Message to the Legislature, Ratification of the Fifteenth Amendment (Jan. 11 and 27, 1870)

30. California, Gov. H. H. Haight’s Message to the Legislature, Rejection of the Fifteenth Amendment (Jan. 5 and 28, 1870)

31. Georgia, Gov. Rufus Bullock’s Message to the Legislature, Ratification of the Fourteenth and Fifteenth Amendments (Feb. 2, 1870)

32. The Amendment Complete, Boston Daily Journal (Feb. 4, 1870)

33. New Jersey, Legislative Debate, Rejection of the Fifteenth Amendment (Feb. 7, 1870)

34. President Ulysses S. Grant, Message to Congress Announcing the Ratification of the Fifteenth Amendment (Mar. 30, 1870)

35. Frederick Douglass, Letter to a Ratification Celebration (Apr. 5, 1870)

Appendix

Introduction to the Appendix

1. The Enforcement Bill and Repassage of the 1866 Civil Rights Act (May 31, 1870)

2. US House, Judiciary Committee, Petition of Victoria Woodhull on the Subject of Female Suffrage (Jan. 2, 1871)

3. US House, Judiciary Committee, The Woodhull Report (Jan. 30 and Feb. 1, 1871)

4. US House, Speech of John Bingham on the Meaning of the Privileges or Immunities Clause of Section One of the Fourteenth Amendment (Mar. 31, 1871)

5. The Slaughterhouse Cases (1873)

6. Bradwell v. The State (1873)

7. Minor v. Happersett (1875)

8. United States v. Reese (1876)

9. United States v. Cruikshank (1876)

Acknowledgments

Bibliography

Endnotes

Footnotes

Index and Table of Cases

Introduction to Volume 2

This is the second of a two-volume collection of historical documents relating to the framing and ratification of the Thirteenth, Fourteenth, and Fifteenth Amendments. Volume 1 covered the basic constitutional doctrines of the antebellum Constitution (federalism, slavery, and secession) as well as materials relating to the framing and ratification of the Thirteenth Amendment. This second volume covers the framing and ratification histories of the Fourteenth and Fifteenth Amendments. For an explanation of the general theory and goals of the collection, readers are encouraged to read the main introduction in volume 1. In brief, these volumes present historical materials relating to the public discussions and debates in the era of Reconstruction—the period immediately following the American Civil War, when the country added three transformative amendments to the Constitution. The first abolished slavery, the second established rights of national citizenship and the conditions for the readmission of the seceding states, and the third protected the right to vote from racial discrimination.

The collection focuses on the public discussion of legal issues in an effort to illuminate the legal and constitutional ideas in play at the time of the adoption of these three critical amendments. Because constitutional reconstruction discourse was informed by—and built upon—antebellum legal theories and debates, a proper understanding of these debates requires some grasp of what came before. Volume 1 therefore begins with a collection of antebellum historical documents representing those legal ideas and theories that played major roles during the Reconstruction debates. The roles might be positive (e.g., the continued acceptance of the Federalist Papers as canonical documents of constitutional theory and the rise of abolitionist legal analysis) or negative (e.g., the Supreme Court’s decision in Dred Scott, the theories of John C. Calhoun, and legal and constitutional doctrines relating to the institution of slavery). As readers of this volume will find, participants in the Fourteenth and Fifteenth Amendment debates repeatedly refer to these antebellum legal ideas. Readers also will notice that issues that were debated during the framing and ratification of the Thirteenth Amendment carried over into the congressional and public discussions of the next two amendments. Accordingly, these two volumes are meant to be used as an integrated collection of documents that represents the major legal and constitutional debates of Reconstruction.

Volume 1 ended with Secretary of State William Seward’s December 1865 proclamation of a ratified Thirteenth Amendment. The year 1865 had begun optimistically for the Northern states: Congress had passed the abolition amendment, the Civil War was winding down, and President Abraham Lincoln had embraced the first reconstructed Southern governments. By the end of that year, however, the North would be mourning the assassination of a beloved president, and Congress would be increasingly pessimistic about the provisional Southern governments established by Lincoln’s successor, Tennessee Democrat Andrew Johnson.

Although most of the Southern governments ratified the Thirteenth Amendment, several also had enacted (or continued to enforce) restrictive black codes that limited freedmen’s rights of person and property. Although Section Two of the Thirteenth Amendment gave Congress power to enforce abolition, the scope of that power had been hotly contested during the ratification debates. Whatever the scope of the new amendment, it was unclear whether Republicans would have enough votes to pass enforcement legislation if representatives from the former rebel states were immediately readmitted to Congress. Prior to the Thirteenth Amendment, slaves counted for three-fifths of a person when determining congressional representation. Now free, still-disenfranchised Southern blacks would count as a full five-fifths of a person, significantly increasing the power of Southern Democrats once they returned to their seats in the House of Representatives.

Their return seemed imminent. One of Andrew Johnson’s first moves as president was to establish provisional governments in the former rebel states. With the encouragement of President Johnson and his secretary of state, these provisional governments quickly ratified the Thirteenth Amendment in the belief that doing so would pave the way for their readmission to Congress. Indeed, how could any state whose vote had been counted for the ratification of a constitutional amendment be excluded from Congress? Throughout the war, Republicans had insisted that the Southern states had never actually been out of the Union. With the war now over, rule of law reestablished in the former rebel states, and provisional governments up and running with the blessing of the nation’s chief executive, it seemed inevitable that the Republicans of the Thirty-Ninth Congress would bow to the wishes of their new president and accept the return of Southern Democrats.

The Republicans did not, however, bow. Ignoring the outraged cries of Democrats and an increasingly hostile president, the Republican Congress denied readmission to the Southern states. Instead, they went about determining when and how the Southern states might be safely readmitted to the Union. Wresting control of reconstruction from the president, Congress ultimately demanded that the South ratify two additional constitutional amendments—one limiting the political power of Southern Democrats, the other granting political power to freedmen.

Part 1

The Fourteenth Amendment

A. Drafting

Introduction to Part 1A

The Thirty-Ninth Congress: Membership

1. US Senate, Opening Day of Thirty-Ninth Congress (Dec. 4, 1865)

2. US House, Opening Day of Thirty-Ninth Congress, Exclusion of Former Rebel States, Appointing Joint Committee on Reconstruction (Dec. 4, 1865)

3. US House, Thaddeus Stevens, Proposed Amendments (Dec. 5, 1865)

4. US House, John Bingham, Proposed Amendment (Dec. 6, 1865)

5. US Senate, Appointing Joint Committee on Reconstruction (Dec. 12, 1865)

6. Joint Committee on Reconstruction, Membership (1865–1867)

7. US Senate, Freedmen’s Bureau Bill, Black Codes (Dec. 13, 1865)

8. Secretary of State William Seward, Proclamation of Ratification of the Thirteenth Amendment (Dec. 18, 1865)

9. US Senate, Lyman Trumbull, Freedmen’s Bureau Bill (Dec. 19, 1865)

10. US House, Passage of Proposed Amendment on the Rebel Debt (Dec. 19, 1865)

11. Elizabeth Cady Stanton, This Is the Negro’s Hour, National Anti-Slavery Standard (Dec. 30, 1865)

12. US House, James G. Blaine, Proposed Suffrage-Based Apportionment Amendment (Jan. 8, 1866)

13. Joint Committee, Proposed Apportionment Amendment, Exclusion of Insurgent States (Jan. 9, 1866)

14. US House, John Bingham, Proposed Amendment to Grant Congress Power to Secure Equal Personal Rights (Jan. 9, 1866)

15. US Senate, Lyman Trumbull, Judiciary Committee Reports S. Nos. 60 & 61 (Freedmen’s Bureau and Civil Rights Bills) (Jan. 11, 1866)

16. US Senate, Lyman Trumbull, Reporting Amendments to Civil Rights Bill (Jan. 12, 1866)

17. Joint Committee, Proposed Amendments, Apportionment, Power to Secure to All Persons Equal Protection in Their Rights of Life, Liberty and Property (Jan. 12, 1866)

18. US Senate, Debate, Freedmen’s Bureau Bill (Jan. 19, 1866)

19. Joint Committee, Proposed Amendments, Vote on Apportionment Amendment (Jan. 20, 1866)

20. US House, Debate, Apportionment Amendment (Jan. 22, 1866)

21. US House, Debate, Apportionment Amendment, Women’s Suffrage Petition (Jan. 23, 1866)

22. US House, Debate, Apportionment Amendment (Jan. 24, 1866)

23. US House, Debate, Apportionment Amendment, Speech of John Bingham (Jan. 25, 1866)

24. US House, Debate, Apportionment Amendment, Speech of William Wright (D-NJ) (Jan. 26, 1866)

25. Joint Committee, John Bingham, Proposed Amendment Granting Congress Power to Enforce the Rights of Citizens and All Persons (Jan. 27, 1866)

26. US Senate, Debate, Civil Rights Bill, Proposed Addition of Citizenship Clause (Jan. 29, 1866)

27. US Senate, Debate, Civil Rights Bill, Amended Citizenship Clause (Jan. 30, 1866)

28. US House, Proposed Apportionment Amendment Referred Back to Joint Committee (Jan. 30, 1866)

29. US House, Apportionment Amendment, Speech of Thaddeus Stevens, Vote and Passage (Jan. 31, 1866)

30. US House, Freedmen’s Bureau Bill, Adding the Constitutional Right to Bear Arms (Feb. 1, 1866)

31. US Senate, Civil Rights Bill, Debate, Vote, and Passage (Feb. 2, 1866)

32. US House, Freedmen’s Bureau Bill, Debate and Passage (Feb. 2, 1866)

33. Joint Committee, John Bingham, Proposed Amendment Granting Power to Secure the Rights of Citizens in the Several States and to All Persons in the Several States Equal Protection in the Rights of Life, Liberty and Property (Feb. 3, 1866)

34. US Senate, Apportionment Amendment, Speech of Charles Sumner (Feb. 6, 1866)

35. US Senate, Apportionment Amendment, Remarks of William Pitt Fessenden (Feb. 7, 1866)

36. Joint Committee, Adoption of John Bingham’s Version of Proposed Amendment (Feb. 10, 1866)

37. US Senate, William Pitt Fessenden Reports Proposed Amendment (Feb. 13, 1866)

38. US Senate, Freedmen’s Bureau Bill, President Andrew Johnson’s Veto Message (Feb. 19, 1866)

39. US Senate, Freedmen’s Bureau Bill, Speech of Lyman Trumbull, Vote to Override Fails (Feb. 20, 1866)

40. US House, John Bingham Reports Proposed Amendment Empowering Congress to Secure the Privileges and Immunities of Citizens and the Due Process Rights of All Persons, Response by Andrew Rogers (Feb. 26, 1866)

41. US House, Debate, Proposed Amendment Empowering Congress to Secure the Privileges and Immunities of Citizens and the Due Process Rights of All Persons (Feb. 27, 1866)

42. US House, Debate Continued, Privileges and Immunities Amendment, Speeches of John Bingham and Giles Hotchkiss, Vote to Postpone Consideration (Feb. 28, 1866)

43. US House, Debate, Civil Rights Bill, Speeches of James Wilson and M. Russell Thayer (Mar. 1–2, 1866)

44. US Senate, Debate, Apportionment Amendment, Opposition of Charles Sumner (Mar. 7, 1866)

45. US House, Debate, Civil Rights Bill (Mar. 8, 1866)

46. US House, Debate, Civil Rights Bill, Speech of Columbus Delano (R-OH) (Mar. 8, 1866)

47. US Senate, Debate, Apportionment Amendment, Fails Two-Thirds Vote (Mar. 9, 1866)

48. US House, Debate, Civil Rights Bill, Speech of John Bingham in Opposition (Mar. 9, 1866)

49. US House, Debate, Civil Rights Bill, Vote and Passage (Mar. 13, 1866)

50. US Senate, Motion to Retroactively Exclude John Stockton (Mar. 22, 1866)

51. US Senate, President Andrew Johnson’s Message Accompanying Veto of the Civil Rights Bill (Mar. 27, 1866)

52. US Senate, Exclusion of John Stockton (Mar. 27, 1866)

53. US Senate, Civil Rights Bill, Veto Override (Apr. 6, 1866)

54. US House, Civil Rights Bill, Speech of William Lawrence, Veto Override (Apr. 7, 1866)

55. S. S. Nicholas, The Civil Rights Bill (Apr. 12, 1866)

56. News of Proposed Amendments in the Joint Committee on Reconstruction, Chicago Tribune (Apr. 16, 1866)

57. Joint Committee, Thaddeus Stevens Introduces Five-Section Constitutional Amendment (Apr. 21, 1866)

58. Joint Committee, Proposed Constitutional Amendment (Apr. 25, 1866)

59. Joint Committee, Proposed Constitutional Amendment, Adoption of John Bingham’s Draft of Section One (Apr. 28, 1866)

60. US House, Thaddeus Stevens Introduces Proposed Five-Section Fourteenth Amendment (Apr. 30, 1866)

61. The Progress of Reconstruction—What the ‘Secret Directory’ Proposes, New York Times (Apr. 30, 1866)

62. US House, Proposed Fourteenth Amendment, Speech of Thaddeus Stevens Introducing the Amendment, Debate (May 8, 1866)

63. US House, Proposed Fourteenth Amendment, Debate and Passage (May 10, 1866)

64. US Senate, Proposed Fourteenth Amendment, Speech of Jacob Howard Introducing the Amendment (May 23, 1866)

65. The Reconstruction Debate in the Senate, Mr. Howard Speaks on Behalf of the Committee, New York Times (May 24, 1866)

66. US Senate, Proposed Fourteenth Amendment, Debate, Citizenship Clause Added, Section Three Removed and Replaced, Alterations to Section Four (May 29, 1866)

67. US Senate, Proposed Fourteenth Amendment, Debate (May 30, 1866)

68. US Senate, Proposed Fourteenth Amendment, Debate Continued (May 31, 1866)

69. US Senate, Proposed Fourteenth Amendment, Debate Continued (June 4, 1866)

70. US Senate, Proposed Fourteenth Amendment, Debate Continued, Speech of Luke Poland, Remarks of William M. Stewart (June 5, 1866)

71. US Senate, Proposed Fourteenth Amendment, Speech of Garrett Davis (June 7, 1866)

72. US Senate, Proposed Fourteenth Amendment, Debate, Passage of Amended Version (June 8, 1866)

73. Majority and Minority Reports of the Joint Committee (June 8, 1866)

74. US House, Proposed Fourteenth Amendment, Speech of Thaddeus Stevens, Vote and Passage of Amended Senate Version (June 13, 1866)

75. US House, Proposed Fourteenth Amendment, Discussion Regarding Presentment to the President for Signature (June 15, 1866)

76. US Senate, Proposed Fourteenth Amendment, President Andrew Johnson’s Message of Transmission (June 22, 1866)

Introduction to Part 1A

One of the most dramatic moments in American constitutional history occurred on December 4, 1865: the opening day of the Thirty-Ninth Congress. Representatives from the states of Louisiana, Tennessee, and Virginia were present and waiting for their names to be called so they could enter the chamber and take their seats on the House floor. Proceeding alphabetically, the clerk of the House called the names of representatives from loyal Union states. He skipped over, however, the names of the Southern representatives. Democrats demanded that the clerk explain his refusal to call the names of the waiting representatives, but before the he could answer, Thaddeus Stevens interrupted and declared, It is not necessary. We know all (doc. 2). What the members knew was that congressional Republicans had decided to exclude these representatives until they were satisfied that the conditions in the Southern states justified their readmission.

Over the next several months, Congress debated Reconstruction and the readmission of the Southern states. Two problems required immediate attention, both relating to the Thirteenth Amendment (which, on December 4, 1865, was days away from being officially declared ratified): first, although the Southern states had accepted the abolition of slavery, many had enacted racially restrictive codes controlling the lives and property of freedmen (see doc. 7). Although some Republicans believed that Section Two of the Thirteenth Amendment empowered Congress to invalidate these codes (doc. 7), others insisted that a congressional response first required the passage of an additional constitutional amendment (see, e.g., docs. 14, 42, and 48).

Second, and even more pressing, was the need to respond to the Thirteenth Amendment’s potential expansion of Southern political power. Once ratified, four million freedmen who had counted as three-fifths of a person under the original Constitution would now count as a full five-fifths of a person. Ironically, the same amendment that brought freedom to Southern blacks might place political control of Congress in the hands of disloyal Southern whites. Republicans were determined not to let that happen. As the majority of the Joint Committee on Reconstruction later explained, The increase of representation necessarily resulting from the abolition of slavery was considered the most important element in the questions arising out of the changed condition of affairs, and the necessity for some fundamental action in this regard seemed imperative (doc. 73).

Congress’s first move was to create a special joint committee made up of fifteen members from the House and Senate. This Joint Committee on Reconstruction would 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, with leave to report at any time, by bill or otherwise (doc. 5). Chaired by Maine senator William Pitt Fessenden, the Joint Committee included influential Republicans, such as Pennsylvania representative Thaddeus Stevens and Ohio representative John Bingham, as well as a handful of Democrats, including the moderate Maryland senator Reverdy Johnson and the stridently conservative New Jersey representative Andrew Rogers (see doc. 6). Although the committee eventually conducted hearings regarding conditions in the South, its first and central task was to draft and submit proposed constitutional amendments to Congress. These amendments were sent first to the House and then, if passed, forwarded to the Senate. The Joint Committee maintained an official journal that recorded the texts of the various drafts and the member’s individual votes. For example, the journal of the Joint Committee tracked the development of what would become Section One of the Fourteenth Amendment as it went from John Bingham’s original proposal on January 12, 1866 (doc. 17), to the final form adopted by the Joint Committee on April 28, 1866 (docs. 57–59). The journal did not, however, record discussions or debates.

The Fourteenth Amendment began as a series of separately proposed amendments. For example, the Thirty-Ninth Congress initiated debate on a stand-alone apportionment amendment, which ultimately became Section Two of the five-sectioned Fourteenth Amendment (docs. 17, 19, and 20). Similarly, the origins of what became Section One can be found in a short amendment initially proposed by John Bingham in January 1866 (doc. 17). Neither of these proposals gained the assent of two-thirds of both houses as required by Article V of the Constitution (see, e.g., doc. 47). The turning point for the Fourteenth Amendment came on April 21, 1866, when Thaddeus Stevens submitted to the Joint Committee a five-sectioned proposed amendment that he had received from Robert Dale Owen (see docs. 56 and 57). Although the committee substantially altered Owen’s original proposal, they preserved his idea of combining what had originally been separately proposed amendments into a single, multisectioned text (doc. 59). The committee submitted its new proposal to Congress on April 30, 1866 (doc. 60). After several weeks of debate, more modifications, and the last-minute addition of a citizenship clause (doc. 66), the Senate adopted the final version of the Fourteenth Amendment on June 8, 1866 (doc. 72). The House quickly followed suit on June 13 (doc. 74).

As Congress debated the various proposals that would coalesce into the Fourteenth Amendment, it also took up major legislative proposals such as the Freedmen’s Bureau Bill and the Civil Rights Bill. In general, the Senate first debated proposed civil rights legislation before sending the same to the House (see, e.g., doc. 15). The House, on the other hand, began the session by debating amendments submitted by the Joint Committee (see, e.g., doc. 20). During these almost simultaneous legislative and constitutional debates, members developed and expounded upon their various theories of individual rights, congressional power, and constitutional interpretation. Discussions that originated with a proposed amendment often carried over into deliberations involving civil rights legislation—discussions that, in turn, carried over into later debates on proposed constitutional amendments. The documents in this section are arranged chronologically so that readers can trace these legal and constitutional threads as they emerged and were developed or abandoned as the session wore on. The cross-talk from one debate to another is especially illuminating; for example, ideas regarding due process and the protection of life, liberty, and property are evident (and continued to develop) during debates over both civil rights legislation and various drafts of the Fourteenth Amendment. Similarly, discussions regarding the meaning and significance of antebellum cases like Corfield v. Coryell and McCulloch v. Maryland also arose during both legislative and constitutional debates throughout the first session.

The press followed all these debates and quickly made substantial portions of them available to the public. Unlike America’s founding, with its secret, unpublished framing debates and serially and partially distributed Federalist Papers, the debates of the Thirty-Ninth Congress were open to the public and published on an almost daily basis. Newspapers kept their readers informed about the agenda of the Thirty-Ninth Congress (see, e.g., vol. 1, 2B, doc. 42), proposed amendments before the Joint Committee (docs. 56 and 60), and the debates on the Fourteenth Amendment (doc. 61). They also published full versions of major congressional speeches, including John Bingham’s speech introducing the first draft of the Fourteenth Amendment (doc. 40), Bingham’s speech opposing the Civil Rights Act (doc. 48), and Jacob Howard’s introduction of the Fourteenth Amendment to the Senate (doc. 64). In addition to press coverage, members of Congress occasionally published their speeches separately in pamphlet form, presumably for use as campaign documents (see, e.g., doc. 42). Nor was the public merely a passive consumer of information—advocacy groups followed the events in the Thirty-Ninth Congress and worked with various members to get their ideas before the membership (see doc. 21). One of the most important examples of outside influence occurred when Robert Dale Owen reached out to Joint Committee member Thaddeus Stevens and presented him with an idea for a five-part constitutional amendment—an event, once again, reported in the newspapers (doc. 56). In sum, the framing of the Fourteenth Amendment was a remarkably public event, particularly when compared to the drafting of the original Constitution.

The full record of the debates of the first session of the Thirty-Ninth Congress takes up more than four thousand oversized pages in the Congressional Globe. The documents in this section provide no more than a representative sample of the session’s key speeches and debates concerning the framing and passage of the Fourteenth Amendment. They include speeches by members introducing related civil rights legislation—for example, Trumbull’s introduction of the Civil Rights Act in the Senate (doc. 26) and Wilson’s introduction of the same in the House (doc. 43)—or introducing amendments submitted by the Joint Committee, such as Stevens’s introduction of the apportionment amendment to the House (doc. 20). I have edited the extensive debates of the Thirty-Ninth Congress with the goal of preserving those issues and disputes that play especially important roles in the shaping of the Fourteenth Amendment. For the apportionment amendment, for example, major issues included the general manner of determining representation (by population or by registered voters?); the trigger for reduced representation in the House of Representatives (abridgment of civil rights or the denial of black suffrage?); and the appropriate penalty for denials of black suffrage (exclusion of the entire black male population from the representation ratio or just the portion of that population actually excluded?). Members also debated whether penalizing states for denying black suffrage amounted to a concession that disenfranchisement was constitutional so long as the state accepted the penalty. It was this issue that led radical Republicans in the Senate to join with conservative Democrats in defeating a version of the apportionment amendment that the House had already passed (docs. 44 and 47). Although Senate radicals like Charles Sumner had hoped resistance would lead to a stronger protection of black suffrage, when the apportionment amendment reappeared as Section Two of the Fourteenth Amendment, it applied less pressure on the Southern states to allow black suffrage than had the original House-adopted draft. The counterproductive tactics of Senate radicals drew the wrath of House radicals like Thaddeus Stevens, who later condemned his Senate colleagues for their failure to support the original proposal (doc. 62).

What became Section One went through a number of versions before final approval. On January 12, 1866, John Bingham introduced to his fellow members of the Joint Committee an amendment granting Congress power to make all laws necessary and proper to secure to all persons in every state within this Union equal protection in their rights of life, liberty and property (doc. 17). On January 20, a subcommittee reported an amended version of Bingham’s original proposal: Congress shall have power to make all laws necessary and proper to secure to all citizens of the United States, in every State, the same political rights and privileges; and to all persons in every State equal protection in the enjoyment of life, liberty and property (doc. 19). On January 27, Bingham, on behalf of the sub-committee on the powers of Congress, reported a modified version of the January 20 proposal, which stated, Congress shall have power to make all laws which shall be necessary and proper to secure all persons in every state full protection in the enjoyment of life, liberty and property; and to all citizens of the United States in any State the same immunities and also equal political rights and privileges (doc. 25).

The Joint Committee voted to adopt this version but postponed its submission to the House (presumably because the House at that time was debating the committee’s proposed apportionment amendment; doc. 25; see also docs. 28 and 29). Finally, on February 3, Bingham proposed a substitute version of the subcommittee’s proposal, which read, The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each state all privileges and immunities of citizens in the several states (Art. 4, Sec. 2); and to all persons in the several States equal protection in the rights of life, liberty and property (5th Amendment) (doc. 33; parentheses in original).

The Joint Committee voted seven to six to replace the subcommittee’s proposal with Bingham’s substitute and, on February 10, 1866, voted to send the same to the House for consideration (doc. 36). Bingham introduced the proposed amendment to the House on February 26, and for the next three days, members debated the proposal (see docs. 40–42).

Bingham insisted that the proposed amendment did nothing more than grant Congress power to enforce the comity clause of Article IV, Section Two and the Fifth Amendment’s due process clause. According to Bingham, properly understood, the comity clause included an unstated ellipsis that expanded the scope of the clause to include the rights of citizens of the United States:

"The citizens of each State (being ipso facto citizens of the United States) shall be entitled to all the privileges and immunities of citizens (supplying the ellipsis of the United States) in the several States." This guarantee is of the privileges and immunities of citizens of the United States in, not of, the several States. This guarantee of your Constitution applies to every citizen of every State of the Union; there is not a guarantee more sacred, and none more vital in that great instrument. (doc. 14)

In Bingham’s interpretation, the comity clause imposed a moral obligation on the states to respect all the privileges and immunities of national citizenship. States, however, had failed to uphold this obligation, and Congress had heretofore lacked the power to enforce these national rights. The proposed amendment, Bingham explained, supplied Congress with such power.

Bingham’s proposal faced immediate criticism by a broad spectrum of members. Democrats raised federalism-based concerns about potentially nationalizing the entire subject of common law civil rights, while Republicans warned about the danger of giving a future (and potentially Democrat-controlled) Congress the power to define the nature and scope of such rights (see doc. 42). Some claimed that the amendment was not necessary, since states already were bound to enforce the rights of national citizenship such as those listed in the Bill of Rights (see doc. 41). In the end, on February 28, 1866, New York representative Roscoe Conkling successfully moved to postpone discussion of the amendment until April (doc. 42), presumably to give the Joint Committee time to redraft Bingham’s proposal (Conkling was a member of the Joint Committee).

Between February and April, Congress devoted much of its time to debating the proposed Civil Rights Act. While the House debated amendments submitted by the Joint Committee, the Senate moved forward with a proposed extension of the Freedmen’s Bureau Bill and a Civil Rights Bill. Introduced at the same time by Illinois senator Lyman Trumbull, the two bills contained identical language prohibiting racial discrimination. The Civil Rights Bill, Trumbull explained,

declares that there shall be no discrimination in civil rights or immunities among the inhabitants of any State or Territory of the United States on account of race, color, or previous condition of slavery; but the inhabitants 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 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, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding. (doc. 16; see also doc. 18)

Both houses of Congress quickly passed the Freedmen’s Bill and sent the same to President Andrew Johnson for his expected signature. Johnson, however, vetoed the measure, explaining that there was no need for a military bill during peacetime, nor can any good reason be advanced why, as a permanent establishment, it should be founded for one class or color of our people more than another (doc. 38). Most ominously, Johnson called into question the legality of Congress’s ongoing exclusion of the Southern state representatives:

I would not interfere with the unquestionable right of Congress to judge, each House for itself, of the elections, returns, and qualifications of its own members, but that authority cannot be construed as including the right to shut out, in time of peace, any State from the representation to which it is entitled by the Constitution. At present, all the people of eleven States are excluded—those who were most faithful during the war not less than others.

. . .

It is hardly necessary for me to inform Congress that, in my own judgment, most of those States, so far at least as depends upon their own action, have already been fully restored, and are to be deemed as entitled to enjoy their constitutional rights as members of the Union. (doc. 38)

On February 20, 1866, the Senate failed by two votes to reach the two-thirds majority required to override a presidential veto (doc. 39). As Congress moved forward on the Civil Rights Bill and the proposed amendments, it was aware that successful passage of either would require overcoming a block of Democratic and conservative Republican opposition and gaining the support of two-thirds of both houses.

On March 1, 1866, having just postponed its discussion of Bingham’s proposed amendment, the House now considered the proposed Civil Rights Bill. Introduced by Iowa representative James Wilson (chair of the House Judiciary Committee), the bill had undergone some changes since its first introduction in the Senate. Instead of protecting all inhabitants of the several states, the bill now protected only United States citizens. According to Wilson, This [change] is intended to confine the operation of this bill to citizens of the United States, instead of extending it to the inhabitants of the several States, as there seems to be some doubt concerning the power of Congress to extend this protection to such inhabitants as are not citizens (doc. 43).

The bill now also included a citizenship clause declaring [t]hat 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 without distinction of color. According to Wilson, wavering Republicans ought not to be deterred by the bill’s reference to equal civil rights and immunities. These terms had a limited meaning and did not include either the rights of suffrage or the right to integrated schools:

What do these terms mean? Do they mean that in all things civil, social, political, all citizens, without distinction of race or color, shall be equal? By no means can they be so construed. Do they mean that all citizens shall vote in the several States? No; for suffrage is a political right which has been left under the control of the several States, subject to the action of Congress only when it becomes necessary to enforce the guarantee of a republican form of government. Nor do they mean that all citizens shall sit on the juries, or that their children shall attend the same schools. These are not civil rights or immunities. Well, what is the meaning? What are civil rights? I understand civil rights to be simply the absolute rights of individuals, such as—The right of personal security, the right of personal liberty, and the right to acquire and enjoy property. Right itself, in civil society, is that which any man is entitled to have, or to do, or to require from others, within the limits of prescribed law.—Kent’s Commentaries, vol. 1, p. 199. (doc. 43)

John Bingham opposed the proposed bill and maintained that until the country ratified an amendment such as the one he had recently put forward, Congress had no authority to pass this kind of civil rights legislation. In his March 9, 1866, speech opposing the Civil Rights Act, Bingham explained, The Constitution does not delegate to the United States the power to punish offenses against the life, liberty, or property of the citizen in the States, nor does it prohibit that power to the States, but leaves it as the reserved power of the States, to be by them exercised. . . . I am with [Wilson] in an earnest desire to have the bill of rights in your Constitution enforced everywhere. But I ask that it be enforced in accordance with the Constitution of my country (doc. 48).

Despite Bingham’s continued opposition, both houses passed the Civil Rights Bill, though not before removing from it the phrase civil rights in order to avoid what Wilson called a latitudinarian construction not intended (doc. 49). The question now became whether President Johnson would veto the Civil Rights Bill just as he had the Freedmen’s Bureau Bill—a veto that the Senate had failed to override by two votes. In a move reflecting the hardball political tactics of the moment, while President Johnson considered whether to sign the bill, the Senate considered whether to retroactively exclude New Jersey Democratic senator John Stockton on the grounds of election fraud (doc. 50).¹ On March 27, 1866, the same day the Senate received word that Johnson had vetoed the Civil Rights Bill, that body voted twenty-three to twenty to remove Senator Stockton (doc. 52). A few days later, the Senate voted thirty-three to fifteen to override Johnson’s veto of the Civil Rights Bill, succeeding by a single vote (doc. 53). The House quickly followed suit and—once again without the support of John Bingham—voted to override Johnson’s veto on April 7, 1866 (doc. 54).

Although John Bingham failed to convince his colleagues that the amendment should precede the Act, his opposition nevertheless stung. Democrats used Bingham’s arguments as evidence that the Civil Rights Act was unconstitutional (see, e.g., doc. 40). Complained Ohio representative William Lawrence, The speech of my distinguished colleague, [Mr. BINGHAM, March 9,] has been extensively published in a mode to mislead the public judgment (doc. 54). Some supported the bill despite their suspicion that Bingham was correct that the current Constitution reserved to the states the power to protect property, liberty and life and congressional protection first required a constitutional amendment (doc. 46). Democratic critics outside of Congress decried the entire effort to enforce the equal rights of person and property as blatantly unconstitutional. In an essay titled The Civil Rights Bill, written on April 12 and published on May 8 in the Daily National Intelligencer, S. S. Nicholas complained:

The bill of rights, or what are termed the guarantees of liberty, contained in the Federal Constitution, have none of them any sort of application to or bearing upon the State governments, but are solely prohibitions or restrictions upon the Federal Government. The recent attempt in Congress to treat them as guaranties against the State governments, with an accompanying incidental power to enforce the guaranties, is a surprising evidence of stolid ignorance of Constitutional law, or of a shameless effort to impose upon the ignorant. (doc. 55)

As of mid-April, although Congress had managed to pass the Civil Rights Bill, the remainder of the Republicans’ reconstruction agenda was in disarray. The Freedmen’s Bureau Bill had failed, the apportionment amendment had been defeated in the Senate, and consideration of Bingham’s equal rights amendment had been postponed by the House. Even the Civil Rights Act faced an uncertain future; federal courts might decide that Bingham was correct and that the Act exceeded Congress’s constitutional powers. Most of all, there was the unresolved problem of Southern state representation. The former rebel states had done all that had been officially asked of them—how long could Republicans continue to exclude them from Congress without risking electoral punishment in the coming fall elections?

Word of a potential breakthrough emerged on April 16, 1866, when newspapers reported that the Joint Committee had received a multipart amendment from Indiana civil rights advocate Robert Dale Owen (doc. 56). On April 21, 1866, Thaddeus Stevens announced to the Joint Committee that he had a plan of reconstruction, one not of his own framing, but which he should support (doc. 57). Owen’s proposal contained provisions on black suffrage, congressional apportionment, the protection of civil rights, and the repudiation of the rebel states’ debts. It also declared that the States lately in insurrection would not be readmitted until they had voted in favor of the proposed amendment.

Over the next week, the committee considered multiple versions of the Owen proposal. Ultimately, the committee replaced guaranteed black suffrage with an apportionment provision that proportionately penalized the exclusion of otherwise-qualified male voters. At Bingham’s request, the committee also replaced Owen’s equal civil rights provision with a provision protecting the privileges or immunities of citizens of the United States and providing all persons due process protections in life, liberty, and property and equal protection of the laws (doc. 59). On April 28, the Joint Committee completed its work and voted twelve to three to submit to Congress the following five-sectioned amendment along with accompanying bills establishing the terms for readmission:

ARTICLE —.

Sec. 1. 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