and my thanks to Lee Strang
to Dean Barros
the University of Toledo College of Law
and the Federal Society for inviting me in giving me the honor of
delivering this year's Stranahan lecture
and I'm especially pleased to be here to
talk about the 14th amendment an
amendment as I was I was talking with
Lee and the Dean just prior to beginning
my remarks and I was remembering what an
extraordinary role that Ohio has played
in the establishment and creation of the
14th amendment including a very
important gentleman mind by the name of
John Bingham who drafted section 1 of
the 14th amendment he's going to play a
role in my coming remarks but you you
represent very well as a state in terms
of this construction of our
constitutional liberties on July 21st of
this year we will celebrate the 150th
anniversary of the 14th addition to our
National Constitution and over the
decades its provisions have been the
basis for some of the most important
judicial opinions involving individual
Liberty ever handed down by the Supreme
Court from freedom of speech and
religious exercise to the rights of due
process and equal protection the
provisions of the Fourteenth Amendment
are woven into the fabric of our
understanding of American liberty it
protects us from the unconstitutional
actions of state officials and given
that most of our daily action with the
government involves state government
officials it's hard to imagine
constitutional Liberty without the
Fourteenth Amendment in fact from a
distance of 150 years it seems
inevitable that this country would have
added just as kind of an amendment in
the aftermath of the Civil War the Union
had just defeated the Confederacy in its
ultra states rights defense of slavery
and secession and it makes sense that
the same men who prevailed on the
battlefield would constitutionalize
their victory through the adoption of an
amendment that demanded that states
respect the fundamental rights of
American citizenship but when we look
closely at what actually happened it
turns out that there was nothing at all
inevitable about the 14th amendment it
was a proposal born of desperation its
ratification almost triggered a second
Civil War
ratification itself was almost abandoned
midway through the process and it would
take a breakdown of constitutional
government and an impeachment of a
president to the United States before
its ratification would be secure in fact
the story of the 14th amendment is one
of the most dramatic events in our
constitutional history second only to
the Civil War itself and it's a story
that I believe deserves at least an
abbreviated retelling on this it's one
hundred and fiftieth anniversary it's a
story in three acts Act one involves the
drafting of the amendment act two
involves the debates over its
ratification and act three involves the
final round of voting in the States and
how securing ratification required an
act of its subordination by very famous
army general and the impeachment of a
very obstructionist president to the
United States the first act one the
story the fourteenth actually begins
with the beginning of the 13th amendment
so please turn in your books to page 531
at the Congressional globe 30th Congress
second session this is the page that
records the events in the House of
Representatives on January 31st 1865 the
day when the House voted to pass the
13th amendment abolishing slavery and
sending it to the States for
ratification as the globe reports and it
is there on the internet if you care if
you care to look it up as the globe
reports the galleries of the House of
Representatives were packed that day
with men and women both black and white
including the son of Frederick Douglass
there was enormous public interest in
this event the house had tried and
failed to pass the Thirteenth Amendment
only a few months before since then
however Republicans had prevailed in the
fall elections and a growing number of
congressmen had begun to reconsider
whether or not slavery was in fact an
indelible component of the original
Constitution still no one in the
galleries that day knew what the outcome
of the vote was going to be before it
was actually taken so here is the event
as recorded on page 531 of the
Congressional globe beginning with an
unusual request by the Speaker of the
House Schuyler Colfax
the speaker directed the clerk taking
the vote to call his name as a member of
the House the clerk called the name
Schuyler Colfax and mr. Colfax voted aye
this incident was greeted with renewed
applause the speaker then declared the
constitutional majority of two-thirds
having voted in the affirmative the
joint resolution is passed and that
announcement was received by the house
and the spectators with an outburst of
enthusiasm the members on the Republican
side of the house instantly sprung to
their feet and regardless of
parliamentary rules applauded with
cheers and clapping of hands the example
was followed by the male spectators in
the galleries which were crowded to
excess who waved their hats and cheered
long and loud while the ladies hundreds
of whom were present rose in their seats
and waved their handkerchiefs
participating in and adding to the
general excitement and intense interest
of the scene this lasted for several
minutes there's nothing like this
recorded anywhere else in the
Congressional globe it was an intensely
emotional and public event and it had
seemed utterly impossible only three
years before as Lincoln later commented
it was an unexpected achievement both
fundamental and astounding it turned out
however that this vote on the 13th
amendment was just the opening salvo in
what was going to become a
constitutional revolution in fact the
13th amendment created an enormous
problem under the original Constitution
slaves counted as three-fifths of a
person in terms of congressional
representation
this gave slave states a bonus in the
house and in the electoral college when
the 13th amendment abolished slavery
these millions of newly freed persons
would now count as a full five fifths of
a person for the purposes of southern
state representation so once the war
ended and the southern Representatives
returned to Congress they would do so in
gray
with greater political power than they
had held before the war in other words
the South's defeat on the battlefield
might well result in the South's victory
in Congress victory for the same
political class that had betrayed the
country and caused the death of more
than half a million Americans for a time
this seemed to be exactly what was going
to happen soon after the submission of
the 13th amendment to the States the war
ended Lincoln was assassinated and the
new President Andrew Johnson immediately
went to work securing the ratification
of the 13th amendment Johnson quickly
established provisional governments in
the south and promised readmission to
the former rebel states if only they
would ratify the abolition amendment the
southern states accepted the offer they
ratified the amendment in that fall they
sent their representatives to Washington
for the opening day of the 39th Congress
and when these former rebels showed up
at the door of Congress that day
northern Republicans were faced with a
choice they could readmit the rebel
states and give up on constitutional
reconstruction or they could somehow
prevent the southern representatives
from taking their seats and that leads
to the second most dramatic page in the
Congressional globe page three of the
first session of the 39th Congress on
December 4th 1865 the opening day of
that Congress the Clerk of the House
called the roll the southern
representatives waited for their names
to be called so they could take their
seats
their names were never called the
Democrats demanded to know why the clerk
refused to answer instead the southern
representatives were left literally
standing at the door as Republicans went
about their business the rump Congress
of the North had decided the South could
not be readmitted until Congress first
solved the problem of the 13th amendment
President Johnson and the Democrats were
outraged they declared the exclusion of
the southern states unconstitutional the
Republicans ignored them and they got to
work the Joint Committee on
reconstruction produced multiple
proposed constitutional amendments some
dealing with southern represent
others dealing with the rights of
freedmen others dealing with a rebel
debt and the disfranchisement of rebel
leaders in the end Congress gathered
together all of these separate proposals
and created a five sectioned
constitutional amendment the core of
this amendment section two demanded that
southern states give black men the right
to vote or face reduced representation
in Congress this is the paragraph that
solved the problem of the 13th amendment
it was the most discussed and the most
important provision in the proposed
amendment and this was the paragraph
that had to be ratified before the
southern states could be readmitted as
act one comes to a close this five-part
amendment was passed to Congress passed
by Congress and in sent to President
Johnson for transmission to the states
for ratification
President Johnson complied but with a
message indicating that he did not
support this proposed 14th amendment and
in fact Johnson would then travel the
country encouraging the states to reject
the proposed 14th amendment and his
efforts would almost trigger a second
Civil War Act two the 14th amendment
went to the States for ratification in
the summer of 1866 politicians running
for congressional office that fall
quickly made the proposed amendment a
central issue in their campaign speeches
the federal elections that fall became a
referendum on the 14th amendment and the
legitimacy of the rump Republic in
Congress in speech after speech
President Johnson and the Democrats
declared that the rump Republican
Congress was an illegal assembly and
that it was unconstitutional to propose
an amendment while southern state
representatives remained illegally
excluded from Congress Johnson and the
Democrats hoped that their party would
win enough seats that fall to enable
them to set up a second Congress one
that they would insist was the true
Congress for example Democrat Montgomery
Blair Postmaster General under Lincoln
and a member of one of the most
influential families in the United
States at that time insisted in his
speeches the Democrats had a patriotic
duty to resist the illegal Republican
Congress Blair declared and
here I quote the Democratic Party must
save the country from a new rebellion
and civil war the war that is to come
will not be in the south but in the
north the Republicans in Congress hold
power only by excluding southern states
states which they themselves recognized
as in the Union when they counted their
votes for purposes of the Thirteenth
Amendment but these Republicans now mean
to keep these states out and govern the
whole country by the minority in
Congress but in the next Congress
northern Democrats with the southern
states will have a majority and then you
will have two presidents to Congress's
won recognized by the radicals the
others recognized by the Constitution
Blair's speech was republished in
newspapers around the country other
Democrats picked up on the idea and
repeated it throughout that summer and
fall including President Johnson as he
rode the circuit supporting Democratic
candidates Republicans responded with
their own speeches warning of a second
civil war Republican Senator Henry
Wilson of Massachusetts spoke to a crowd
in Indiana quote we are told by the
president even in his speech on his way
home that we may have Civil War
Montgomery Blair went into Maine this
autumn and told the people of that state
that we were plunging into civil war
that we might have two congresses
Democrats in fact intend this if they
have the power it is what the president
means when he talks about the Republican
Congress being a body of men
unconstitutional and unlawful if the
Democrats can get a majority in Congress
made up of rebels unrepentant
unpardonable x' and their sympathizers
here in the north who are willing to act
with them they intend to make a congress
of these people and rule out the
legitimate Congress of the United States
and then maintain their authority with
the army of the United States
end quote Wilson's last point about the
army of the United States supporting the
Democrats was not an exaggeration as
President Johnson rode the circuit
giving speeches
that summer and fall he was accompanied
by no less a figure than ulysses s grant
commander of the Union Army grant sat
silently on the stage right next to the
President as Johnson called for a
rejection of the Republican Congress
grant never said a word but the point of
his presence was obvious
President Johnson wanted everyone to
understand that should a second civil
war come the Union Army of the north and
the Confederate Army of the South would
both be on his side both Democrats and
Republicans in fact began to discuss
available military options if Democrats
secured a few just a few additional
seats in Congress that fall it would be
one of the most important elections in
the history of the United States in the
end it was a deadly riot in the city of
New Orleans that turned the tide in
favor of the Republicans that July mobs
at the direction of the mayor of New
Orleans attacked an assembly of freedmen
meeting in Convention to discuss the
issue of black suffrage dozens of
freedmen were killed many of them
veterans of the Civil War the attack
became a national scandal Republicans
pointed to the massacre as a prime
example as to why we needed an amendment
protecting the rights of all citizens to
free speech and free assembly President
Johnson's response to the riots became a
public relations disaster before the
riots Johnson had assured local
officials that federal troops would not
intervene to protect the freedmen and
after the riots Johnson encouraged local
officials to continue to suppress what
he called illegal assemblies worst of
all from a political standpoint Johnson
blamed the violence on the congressional
Republicans and their support for the
rights of freedmen when Johnson tried to
assure the country that state officials
could be trusted to protect the
enumerated rights of American citizens
Republicans simply pointed to the state
directed violence of New Orleans and in
the end those riots became a symbol a
symbol of why the country needed to
elect Republicans that fall and ensure
the adoption of an amendment that would
protect the privileges and immunities of
all American citizens in the end
Republicans won a landslide victory that
fall and in doing so they secured a pot
mandate to ensure the ratification of
the 14th amendment and so it was that
just then in the seeming moment of
victory that we almost lost the 14th
amendment you see ratification had not
been going well when the Republicans
took their seats for the second session
of the 39th Congress every former rebel
state except Tennessee had rejected the
14th amendment and had now appeared
impossible to get the three-quarters of
the states to ratify as required by
article 5 of the Constitution Congress
was faced with a difficult choice of
either ratifying the 14th amendment by
counting only the votes of the northern
states or somehow convincing the
southern states to change their minds
counting only northern votes would
create a political firestorm
especially since southern state votes
had already been counted for the
purposes of the 13th amendment on the
other hand it appeared impossible to
change the minds of white Southerners
another option of course was simply to
give up on the proposed amendment and
proceed by statute Radical Republicans
had long insisted that no amendment was
necessary and that Congress should be
viewed as having unlimited power to pass
civil rights laws now that the election
of the fall had returned Republicans to
Congress and even greater numbers
Radical Republicans called for
abandoning the 14th amendment and simply
imposing their will on the south by
mandate by statute Daddy as Stephens
introduced legislation giving Congress
power to control all the municipal laws
of the southern states even after the
readmission to Congress if Stevens
succeeded the ratification of the 14th
amendment would be irrelevant and likely
ignored and it was at this point that
the Ohio and John Bingham author of
section 1 of the Fourteenth Amendments
stepped in and saved the amendment On
January 16th 1867 Bingham took to the
floor of the house and in the words of
the New York Times delivered quote one
of the most eloquent and effective
speeches ever heard in the present
Congress in quote in his speech Bingham
reminded his colleagues the
constitutional change requires a vote of
the people not a vote of Congress
Bingham denounced Stephens bill as quote
a substantial denial
the right of the great people who have
saved this Republic by arms to save it
by fundamental law law emanating from
the people law resting upon the
sovereign will of the people and the
people alone law beyond the power of
this Congress or of any subsequent
Congress by mere legislative enactments
to repeal or in any manner limit or
restrict let the future safety of this
Republic rest upon guarantees embedded
in the Constitution embedded there by
the sovereign act of the people and not
upon the repeatable acts of Congress I
submit with all confidence that what is
contemplated by this gentleman's bill is
to patch up a restoration by the
usurpation of powers which do not belong
to the Congress of the United States to
induce the people to fling aside the
constitutional amendment and thereby
subject the future of this Republic to
all the dread calamities which have
darkened its recent past in the end
being improve ailed he convinced his
colleagues to continue their efforts to
use the amendment process rather than
abandoning federalism and the principle
of limited national power when Thaddeus
Stevens realized his bill would fail he
was furious and he denounced Bingham on
the floor of the house as only Stevens
could in words colorfully recorded in
the Congressional globe Stevens declared
quote in all this contest about
reconstruction I do not propose to take
mr. binghams counsel recognize his
authority or believe a word he says end
quote
there was good reason for Stevens
frustration ratification was not going
well and Thaddeus Stevens was running
out of time he was dying at that moment
he had but a few months to live when
Stevens spoke in the House he did so in
a voice so low and weak that members had
to leave their seats and they did so and
gathered around his chair in order to
hear what he was saying it was
altogether possible that Thaddeus
Stevens would not live to see
ratification or know whether all his
efforts to secure freedom in the South
had been a complete waste of time
for his part Bingham was optimistic with
her strengthened congressional majority
we
publicans passed the first and second
reconstruction acts and these acts
directed the military to supervise the
creation of new governments in the south
governments that would be elected with
black votes and which would conduct a
second round of voting on the 14th
amendment guiding that military effort
would be Secretary of War Edwin Stanton
a reliable Republican that Congress
trusted to get the job done President
Andrew Johnson also knew that Stanton
would get the job done so he kicked him
out
in the summer of 1867 President Johnson
replaced Stanton with ulysses s grant
the man who had accompanied Johnson in
his ride on the circuit in 1866 removing
Stanton would trigger the impeachment of
Andrew Johnson and bring on the third
and final act of the drama of the 14th
amendment and so act 3 when President
Johnson removed Stanton he had not yet
violated the tenure and office Act
instead Stanton's removal triggered the
procedures of the Act and because the
removal took place while Congress was in
recess grant could serve on an interim
basis into the next session of Congress
at that time Congress would decide
whether to approve or remove approve the
removal or insist that Stanton be
returned to his office the next session
of Congress was still months away so
when Stanton heard of his his removal he
obediently turned over the keys of his
office to ulysses s grant and from that
moment until Congress returned
ratification of the 14th amendment
ground to a complete halt
from August 1867 to January 1868 not a
single vote was taken on ratifying the
14th amendment well there was one vote
if you count Ohio Ohio rescinded its
previous ratification and voted to
reject the 14th amendment at this point
it was obvious that without new votes in
a reconstructed South the 14th amendment
would die but getting new votes in the
south required the vigorous hand of
someone like Edwin Stanton and not the
cryptic silence of ulysses s grant when
Congress returned that winter one of
their first acts was to consider whether
to disk
proved the removal of Edwin Stanton and
demand that grant give back the keys to
the office of Secretary of War while
awaiting Congress's decision President
Johnson instructed grant to do nothing
without first consulting him Johnson
likely planned to challenge the tenure
and office act in court and tie up the
issue in litigation for months maybe
years and during that time momentum for
the 14th amendment would disappear On
January 15th 1868 Congress voted to
disapprove of Johnson's removal of
Stanton and at that moment the fate of
the 14th amendment lay in the hands of
the man who had won the battles of the
Civil War ulysses s grant grant had to
choose between the demands of his
commander-in-chief and the desires of
the Republican Congress grant chose
Congress for reasons that remain
unexplained and obscure to this day when
grant received news of Congress's vote
he did not go to the president as
instructed but instead he went to
Stanton and he gave him back the keys to
his office grant then wrote a polite
letter to Johnson resigning his position
Stanton for his part grabbed the keys
and promptly barricaded himself in his
office and he refused to leave and to
say the President Johnson was furious
would be an understatement
betrayed by General Grant Johnson
announced that Stanton was fired and
would be immediately replaced and that
announcement expressly violated the
tenure and office Act and the House of
Representatives immediately voted to
impeach the President to the United
States House member Thaddeus Stevens
insisted on carrying the articles of
impeachment to the Senate himself
Stevens was too weak to walk on his own
so a second man was chosen to assist him
his old adversary John Bingham and so it
came to pass that these former
antagonists the 14th amendment author
John Bingham and the dying Thaddeus
Stevens together entered the chamber of
the Senate carrying the articles of
impeachment with Stevens holding tightly
to the arm of the man who he once
claimed
could never trust President Johnson
would escape conviction and removal by a
single boat politically however he was
defeated henceforth President Johnson no
longer would obstruct the reconstruction
acts or the effort to ratify the 14th
amendment and with Johnson and his
administration no longer blocking the
way the southern states proceeded to
draft new state constitutions elect new
government's and hold new votes on the
14th amendment this time with the
participation of enfranchised blacks one
by one the southern states changed their
prior votes and they ratified the 14th
amendment and on July 14th 1868 Alabama
became the 28th state to ratify meeting
Article fives requirement of
three-fourths of the then 37 states on
July 20th Secretary of State William
Seward issued a provisional Proclamation
and on July 21st Congress made it
official and announced that the people
had added a new amendment to their
Constitution southern states again sent
representatives to Washington and this
time they were readmitted and they were
allowed to return to the seats that had
been empty since the start of the Civil
War it had been two of the most dramatic
years in the nation's constitutional
history second only to the Civil War
itself
excluding the Democrats in order to
ensure the passage and ratification of
the amendment had almost triggered a
violent insurrection on multiple
occasions the effort had seemed
impossible it required undying
commitment by men like John Bingham and
an act of insubordination by America's
most famous General to get the job done
in short we almost did not experience a
new birth of freedom but perhaps it is
this very realization that makes a
celebration all the more sweet and not
just because there was victory but
because despite the constant temptation
by all parties to throw out the
constraints of constitutional government
in the end the participants followed the
procedures of the Constitution and they
let the people decide for themselves
whether to change their fundamental law
as Lincoln had remarked about the
Thirteenth Amendment the success of the
14th was also both fundamental
in astounding defeating the lesser the
angels of our nature we brought forth a
new birth of Liberty for that generation
and for all the generations that
followed it's a great story and one
worth celebrating and I thank you for
giving me the chance to tell it thank
you I understand this is a chance and
I've and I very much welcome the chance
to take questions from guests from
faculty from students anyone please
I'm uniquely interested in the question
of whether or not the states seceded you
know where they still considered part of
the Union and to your point earlier
about the 13th amendment the southern
states were counted for votes for
ratification but then their elected
members were excluded from Congress
indeed I guess I'm interested in your
reaction to sort of an ends justifies
the means kind of analysis or what your
take on that would be should they have
been admitted what might have been the
options if they had been admitted in
order to achieve what the Republicans
wanted kind of a broad question it my
first response is it was astounding what
they did I'll just go with the language
of Abraham Lincoln if they had been
readmitted it the southern states had
actually been readmitted that would have
been the end of any efforts to secure
civil rights in the south the Democrats
would have had overwhelming numbers in
both the House and the Senate and of
course they would have had a president
completely completely on their side and
Andrew Johnson was committed to a
restoration of business as usual as
quickly as possible to heal a nation
that was still you know utterly
devastated both north and south by the
Civil War so there was a small
opportunity just a small period of time
when a window was open to secure the
rights of the south and also to prevent
on the North the Union which had spent
so much treasure and precious blood in
securing the victory of the 14th
amendment to secure freedom and secure
the principles of the Nohr
which had guided their actions in the
civil war all along and that meant that
they had to prevent the former rebels
from taking over the government the
government in the north so were there
two things they had to do neither of
which would have been possible if they
had readmitted the southern states one
was to ensure that they had diminished
representation in Congress unless they
enfranchised the blacks and got a new
reliable population of supporters the
Republican Party in the south and
secondly securing the rights of the
freedmen freedmen who were going to
become citizens due to the first
sentence of the 14th amendment and who
then would be protected in their
privileges and immunities to process
rights and equal protection of the laws
and that would protect them against the
Black Codes which of course had emerged
in the aftermath aftermath of the 13th
amendment so they had to be excluded but
that leads to the first part of your
question how do you how do you exclude
states that that weren't gone the whole
theory the whole theory of the Union
effort um was to reject the idea of
secession it's impossible for any state
to leave the Union
that they didn't have one single theory
as to what had happened which doesn't
surprise me because this was wholly
unexpected as an event in American
constitutional history but the theory of
the Union had been primarily something
along the lines of bad guys had taken
over the buildings in the south there
was no secession the Constitution
doesn't allow secession but a criminal
gain had taken over and excluded the
legitimate governments of the south and
so we're fighting a war to rescue the
people who have been taken hostage in
the south by this by this criminal gang
well if that's your theory they reject
secession they rejected the Calhoun Ian
states rights theory that the South used
to justify secession but if that is the
theory justifying a military incursion
into the south we have to do this our
people are there and they are still in
the Union and we have a duty to protect
them then once the war is over how do
you deny the restoration of those states
which are always always in the Union and
it became a subject of ongoing
conversation do
bate and and just enthusiastic criticism
in the newspapers both both north and
south and it never received any type of
coherent theoretical answer by the
Republican Party Republican different
sections of the Republican Party had
different theories about it where
there's a Radical Republicans who
believe that the southern states had
committed suicide through their actions
to the civil war the moderate
Republicans who believed that the states
were still in the Union they still
remained as States but we needed to make
sure that the criminal gangs didn't try
to represent them when they came back
came back into Congress so there were
multiple theories but it was a terribly
difficult theoretical issue which had an
enormous enormous implications for the
politics of the day it was because the
Republicans didn't have a coherent
theory of what they were doing which
opened the door to President Johnson to
plausibly maintain that the actions that
were being taken by the rump Republican
Congress were illegal and
unconstitutional it simply remained a
political issue that when I went back
and forth with no constitutionally
satisfactory answer available to this
day historians still debate the theory
of secession and the exclusion of the
southern states
this job he always wanted was to be
honorable which grant appointed it to
just died that is a that's a great
question when I don't know I really
don't know I I appreciate your insight
into what happened at the time he really
did Barrett when I when I said he
barricaded himself in his office I
wasn't I wasn't using a metaphor
he literally barricaded himself in his
office put furniture against the door so
he couldn't beat he couldn't be removed
because he was trying to create facts on
the ground I am here it forced the
president to try and do something rash
to remove him and that would trigger the
president's the president's impeachment
how long he was in there once again I'm
not sure I know that he was in there for
some time
enough said they really he they not only
delivered him food but all the
dignitaries of Washington there was a
parade of all the Republican dignitaries
during the day to go and visit Stanton
barricaded in his office because of
course they were trying to play this up
as a political issue but impeachment
happened very quickly and I think once
the articles of impeachment were were
voted on in the house and then it went
to the grand impeachment trial in the
Senate at that point I don't think he
had any interest in forcibly removing
him and putting in Lorenzo Thomas I
think was the person he was going to
replace Denton with I think at that
point it was safe for Stanton to come
and go until the actual impeachment and
removal vote was taken in the Senate and
I was going to take I was going to take
a couple of a couple of months not that
not that I know of
not that I know
I wouldn't Andrew Johnson was a
bullheaded man a vote of a president and
that would have been a rather canny
political move for a president that
isn't known for making canny political
moves but I don't know I don't know
whether he okay there you go whoever has
the microphone could you just shed more
light and color on that part that Grant
played it seems like well he his
popularity was in question as far as the
Republicans were concerned certainly he
was deeply suspect on the part of
Radical Republicans because he was
silent he wouldn't take any position
during those very dramatic months of the
election of 1866
he accompanied Johnson I was a very
dramatic move to actually sit there
showing the support of the Union Army
but he never spoke at any of any of
those events because he was giving a
visible display of support to President
Johnson Republicans began to suspect
whether or not he was really he was
really on their side and then once he's
chosen by Johnson to serve as interim
Secretary of War after the removal
removal of Stanton then that now it
became a question as to whether or not
he was gonna go full board over into
supporting supporting the Democrats but
once again he remained cryptically
silent and newspapers throughout all
those months talk about the silence of
of General Grant and everyone wondering
whose side he is ultimately ultimately
going to be on his biographers attribute
his silence and his ultimate move
to deliver the keys to to Stanton on his
growing ambitions to be President to the
United States and that he saw the
direction the wind was blowing he
decided to that he would have better
chances with the Republican Party than
the Democrats and so he became a
moderate Republican a nominal Republican
I'd I see no evidence of that in in what
I've read I think he actually was going
through a very difficult decision-making
process and probably was influenced by
accompanying Johnson he may have started
being a full supporter of Johnson
because Johnson in many ways was
continuing the policies of Abraham
Lincoln Abraham Lincoln with his 10%
plan before he was and his opposition to
the way Davis plan showed himself to be
very willing to have an immediate
restoration of the South far more
quickly than Radical Republicans wanted
and so when Andrew Johnson also wanted
to have an immediate restoration of the
South there was nothing about that that
was contrary to anything the President
Lincoln had done before he was
assassinated so I could seed I could see
ulysses s grant saying this is still my
commander in chief he's doing the things
that my former commander in chief had
suggested were appropriate so he had no
reason to be against President Johnson
and maybe a lot of reason to be
suspicious about these fire-breathing
radicals in Congress but accompanying
Johnson Johnson who was simply a
problematic character on a number on a
number of grounds may have convinced
grant in the end that Johnson was in
fact betraying the victory of the Civil
War and he may have had a crisis of
conscience that led him to defy his own
commander in chief for principled
reasons and give those keys to to
Stanton but I was I was surprised by the
biographers because I also read of the
recent biography of grant the date they
don't make much of this event when you
read the newspaper that I'd I
encountered this event through my
research in the newspapers at the time
and the events which trigger the
impeachment of Andrew Johnson this was
explosive if you think Watergate right
and some
do think some of us remember Watergate
was explosive or the presidency of Bill
Clinton or when Trump fires Mueller or
whatever the heck is is gonna go on it's
nothing compared to the drama that
splashed across the nation's newspapers
when President Johnson fired Stanton and
Stanton then barricades barricades
himself can you imagine this the
president tries to fire him he
barricades a member the executive branch
barricades himself in the office and
Congress goes back a that goes back and
forth supporting supporting his efforts
it was a drama and everyone was waiting
for grant and then grant delivers the
keys and newspapers of the New York
Herald The New York Times the Chicago
Tribune give hour-by-hour updates on
what grant is doing the efforts the
supposed efforts by grant to try and
visit President Johnson oh but Johnson
was in a reception at the moment and so
grant was unable to see the president so
he decides not to see the president and
simply give the keys to Stanton and
these are headlines after headlines
after headlines on the newspapers at the
time everybody was aware that the event
was being controlled by Grant the leader
of the Union Army it was just an amazing
event that I was surprised to see didn't
get more play in Grant's biography I
think it makes grant a far more
important figure in the passage of the
14th amendment and a far more
interesting character just like you've
suggested then that we've grown up
believing seeing him as more as he was a
great general but a terrible politician
with a corrupt administration I think
there's much more to grant and I got
that through my research for this book
[Music]
well I think I think it's quite you know
politics is gonna find its way it's it's
like water it finds the path of least
resistance and it's and even without the
14th amendment politics was still gonna
play a role industrialization was still
gonna play a role expansion West we're
still gonna was still gonna play a role
and all of those were gonna have an
impact on the development of law after
that but the outcome that we did get the
outcome that we did get was an outcome
that didn't involve a statute which
would have been subject to repeal by by
later Democratic administrations and I
think there's there's very strong
evidence that they would have
immediately repeal I know they would
have been mmediately repealed the Civil
Rights Act of 1866 they announced it it
was part of their party platform at the
time so you would have seen statutes
going going back and forth but you
wouldn't have had the entrenched
provisions of the 14th amendment that
then would become the subject of Supreme
Court attention and some pre court
enforcement as you move into into the
20th century and so maybe and I concede
this I'm not exactly sure you know how
the politics would have would have
played out had we not received a 14th
amendment but I'm I do feel fairly
comfortable it would have removed an
incredibly important tool of judicial
review and judicial protection of
individual freedom once we moved into
the 20th century and we all know the
history right of the 13th 14th and 15th
amendment they weren't immediately
enforced you reconstruction ends you
have the removal of the the federal
troops there in the 18 of the 1880s
provisions like the Black Codes are not
enforced against by the are not struck
down by the Supreme Court you move into
the Jim Crow era you have a lot of
tragedy in terms of the hopes
these Reconstruction Amendments
particularly a 15th amendment and the
hope in passing in giving black males
the right to vote this was going to give
the freedmen in the South political
power so that they could prevent things
like the Black Codes and Jim Crow laws
from from being developed none of that
came to pass as the country moved on to
other matters maybe due to the the
Industrial Revolution in the Progressive
Era but nevertheless they left something
even if it wasn't vindicated at that
time even if it didn't have an immediate
impact on politics at that time I think
those amendments became critically
important in giving giving leverage and
textual hooks of justifying the actions
of the Supreme Court in the 20th century
it is speculation it is speculation but
I I mean I remain glad that their their
deed the idea that there was a
distinction between the rights of
citizenship and the natural rights of
all persons was a fundamental theory of
Republican abolitionist theory and and
then ultimately moderate Republican
theory as you move into the the
reconstruction phase the idea was that
there were certain things that came
along with the idea of citizenship there
were certain privileges and immunities
that were only given to citizens right
and this ultimately that would include
suffrage and other matters it as well
but even if one wasn't a citizen even if
you were merely a stranger in the land
visiting here for for a certain amount
of time there nevertheless were certain
natural rights that all persons should
enjoy regardless of citizenship and
these would be on the right not to have
ones life liberty or property deprived
from you without due process of law and
the right to equal protection of one's
right to life life liberty and property
so it it was a distinction based upon
ideas of natural law and and it wasn't
something that emerged at the very end
the way you can find this distinction in
the speeches of John Bingham in 1859 his
speeches against the admission of Oregon
when Oregon was it was becoming a state
but it was fairly widely shared by other
Republicans as well what it does mean is
that you get section 1 of the 14th
amendment and this is something that
isn't generally recognized it sets up
section one that creates two categories
of rights you have privileges or
immunities of citizens what are the
holes and how are they different from
the due process rights and equal
protection rights of all persons section
1 used two different kinds of language
the Supreme Court has never developed
the distinction
soon after the passage of the 14th
amendment the Supreme Court hands down
decisions like other slaughterhouse
cases and then in my mind even more
importantly the Cruikshank case about a
decade later that dramatically reduce
the enforcement power and the rights
provisions of the privileges or
immunities clause and it basically
becomes a lost provision in the 14th
amendment and it isn't until the end of
the 19th century into the 20th century
that the Supreme Court begins to develop
the due process clause and over time the
Due Process Clause of the Fourteenth
Amendment has become the most provision
the most important provision in the
Supreme Court's enforcement of the
Fourteenth Amendment and within the Due
Process Clause the court protects the
rights of citizens the rights of all
persons it's just one grand list of
Rights without any distinction that
would have been made by the text of the
of the 14th amendment at all and their
debates to this day whether or not the
Due Process Clause should be viewed as
incorporating the Bill of Rights against
the states whether or not it should be
viewed as transforming the Second
Amendment into a provision protecting
the individual right to self-defense or
the right to bear arms there a lot of
questions over the courts analysis of
the Due Process Clause and most scholars
believe that the court has gotten it
absolutely wrong there was never an idea
that the Due Process Clause represented
the rights of citizens to some degree of
the substantive rights of all persons to
some degree and maybe a few other
procedural rights most colleagues
believe
that they got off track somewhere along
the way and that we should revisit that
textual distinction that was placed in
the Constitution from the very beginning
one would suggest there's something
called privileges or immunities of
citizens which only citizens get and
other rights called due process rights
and equal protection rights that belong
to all persons some of us are on a quest
we have a vision that some day the
Supreme Court will do this some day the
Supreme Court will revisit the
privileges or immunities Clause but
they've shown no interest to date you
call I'm not going to be responsible for
the last question you'll be responsible
ask somebody other than me
[Music]
[Music]
right so what is the scope what did the
documents indicate the citizenship
Clause of the Fourteenth Amendment all
persons born in D&I born or naturalized
in the United States are citizens the
United States or of the state and of the
State wherein they they reside the
citizenship clause was the last
provision added to the Fourteenth
Amendment it came very late in the game
and the provision that was added echoed
almost the exact same language which had
been included earlier in the Civil
Rights Act of 1866 so Congress had
initially in passing that Civil Rights
Act in the early months of 1866 declared
all persons born are going to be
citizens in the United States that's
going to establish that the freedmen in
the South are going to be citizens and
here are the rights of citizenship and
the Civil Rights Act provides equal
protection to two rights to own property
their eyes too soon right to testify
things along things along those lines
there's a question as to whether not
Congress had power to pass to establish
the rights of citizenship and so in
order to ensure that the Civil Rights
Act in that aspect of the Civil Rights
Act wasn't struck down they added that
clause to the Fourteenth Amendment
once the Fourteenth Amendment was
ratified they then re passed the Civil
Rights Act of 1866 just to ensure its
its constitutionality now so that's how
it got there but what's its meaning it
talks about persons born that was
clearly meant to protect the the
freedmen born or naturalized but it it
also talked about and subject to the
jurisdiction of the United States right
what does it mean to be a persons born
in the United States and subject to
their jurisdiction and then you get into
the modern debate over who should be
subject to that automatic grant of
birthright birthright citizenship I
haven't seen enough in the records to
allow me to make any kind of conclusion
as a matter of those debates because
they're the focus of their attention
simply wasn't on that there were people
who wanted to make sure that the rights
of citizenship didn't automatically
attach to Native Americans
so they knew that subject to their
jurisdiction was going to exclude the
particular treaty relationship that we
had with the Native American tribes at
the time so I know I'm comfortable with
that idea the representatives from
California it said we need to be careful
because we have a population here from a
from across the Pacific Ocean and we
don't want them also becoming citizens
dewy and their voice just echoes into
silence and there it isn't it isn't
picked up so they were aware of the
potential broad application of the
citizenship clause but it simply wasn't
a subject that had their major intention
attention at the time and so it's going
to be up to the court and up to politics
to try and argue this out as a matter of
modern conception but I haven't seen
anything the historical record that lets
me just announce here's what they were
thinking
when they passed it
[Applause]
[Music]
you
[Music]
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