The Lawfulness of the Reconstruction Amendments
Author(s): John Harrison
Source: The University of Chicago Law Review, Vol. 68, No. 2 (Spring, 2001), pp. 375-462
Published by: The University of Chicago Law Review
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The Lawfulnessof the ReconstructionAmendments
John Harrisont
During Reconstruction the Thirteenth, Fourteenth, and Fifteenth Amendments were added
to the Constitution. The circumstances under which the Reconstruction amendments were proposed and ratified were extremely unusual, and at the time serious objections were raised to the legality of the proceedings. Although for practical purposes that controversy is long over, the
amendments' lawfulness remains a nagging problem. There are two important lines of objection to
the amendments' adoption. One is that some or all of the southern state governments that participated in ratifying them were not legally competent to do so because of the irregular fashion in
which those governments had been created. The other objection is that some or all of the southern
ratifications were extorted from the states through unlawful federal threats.
This Article reviews the relevant history and discusses legal rationales under which the constitutional amendments were valid even if there were serious illegalities in the creation of the southern state governments.According to one such rationale, southern ratifications were unnecessary because the ex-Confederate states were excluded from the denominator on which the Article V supermajority is calculated. The Article concludes that this thesis is plausible but ultimately unpersuasive. Another theory is that the identification of a state's lawful government is a political question to
be decided by the political branches of the national government and ultimately by Congress, and
that Congress endorsed the ratifying southern governments, thereby binding all other actors to treat
those governments as lawful. The Article reviews the arguments for and against this version of the
political question doctrine and regards the issue as an open one. Finally, the southern ratifications
may have been effective, despite legal defects in the ratifying governments, because those governments had de facto authority and hence were able to bind their states. The legal authority of de
facto governments is a familiar principle of international law that has been followed in American
constitutional practice, and the Article endorses it in this context. Either the political question or the
de facto government thesis must confront the argument that southern ratifications were invalid because extorted through unlawful federal threats. The Article maintains that it is doubtful whether
the ratifications were so extorted, and claims that in any event Article V of the Constitution does
not implicitly invalidate ratifications made in the face of illegal threats.
The conclusion argues that this result, under which constitutional amendments can be validly ratified even when principles of state autonomy are violated, is nevertheless consistent with the
purpose of Article V and the constitutional system in general. Certainty as to the text of the Constitution is more fundamental than more substantive considerations.
Article V of the Constitutionseeks to capture,in a bottle made of
legal form, the lightning of American popular sovereignty.Its compound supermajorityrules reflect the compoundnatureof that sovereignty.'As Madison explained,Article V is partly federal and partly
t Professor of Law and Class of 1966 Research Professor, University of Virginia. The title
comes from Charles L. Black, Jr., The Lawfulness of the Segregation Decisions, 69 Yale L J 421
(1960). The connection is more than title-deep: Black was right only if the Fourteenth Amendment was validly adopted. Demian Jackson, Sarah Erickson, and Daniel Lovejoy provided excellent research assistance.
1 Amendments
may be proposed by a two-thirds vote in each house of Congress, or by a
convention called by Congress on the application of two-thirds of the states. They are then submitted to either the state legislatures or to ratifying conventions in each state, as Congress determines. Three-fourths of the legislatures or conventions are required to make a proposed
amendment "valid to all Intents and Purposes, as Part of this Constitution." US Const Art V.
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[68:375
national.2Behind that complexityis the goal of determiningwhethera
proposedchangein the basiclaw has the consentof the governed.
Rules and theirreasonscan lose touch with one another,andArticle V is no exceptionto this principle.If the stakes are low such slippage can producepuzzles that are of little practicalimportance.The
leading example is the Twenty-seventhAmendment,proposedby the
FirstCongressin 1789 and ratified,if ratified,in 1992.'ArticleV mentions no time limit; the question with respect to the Amendment is
whetherArticleV is reallyso formalisticthat it permitsratificationin
the absence of a contemporaryconsensus that would truly reflect
popularconsent.4
Sometimesthe stakes are higher,as they were in the 1860s.According to the official documents, Congress proposed and threefourths of the state legislaturesratified three constitutionalamendments of considerableimportance.The ThirteenthAmendmenteliminated slavery,the Fourteenthprotected the freed slaves' civil rights
and sought to curb the political power of the formerrebels,and the
Fifteenth forbade race discriminationwith respect to the franchise.
These issueswere more importantthancongressionalsalaries.
During the turmoil of Reconstruction,one major question was
whetherthe Article V process was trulybeing followed.Much of the
countrywas not representedin the Congressthat proposedthe Thirteenth and FourteenthAmendments.State governmentsin the South
were being made, unmade,and remade throughextraordinaryprocesses in which the federal governmenttook the lead. These convulsions createddoubtsas to whetherthe resultingpoliticalorganizations
were trulyempoweredto speakfor theirstatesin ratification.Manyof
those governmentswere given strongand possiblyunlawfulincentives
to ratify.The most blatant such threat was the statementin the first
Military ReconstructionAct that the ten southern states then excludedfrom representationin Congresswould be restoredwhen they
2
FederalistNumber39 containsMadison'sexplanation:
If we try the Constitutionby its last relation,to the authorityby whichamendmentsare to
be made,we findit neitherwhollynational,norwhollyfederal.... In requiringmorethana
in computingthe proportionby States,not by citizens,it departs
majority,and particularly,
fromthe national,andadvancestowardthefederalcharacter:In renderingthe concurrence
of less thanthe wholenumberof Statessufficient,it loses againthefederal,andpartakesof
the nationalcharacter.
Federalist39 (Madison),in JacobE. Cooke,ed,TheFederalistPapers250,257 (Wesleyan1961).
3 See US ConstAmendXXVII (Lawsvaryingcompensationof senatorsand representatives do not take effectuntilan electionfor the Houseintervenes.).
4
See, for example, William Van Alstyne, What Do You Think About the Twenty-Seventh
Amendment?,10 ConstCommen9,14-18 (1993)(discussingdoubtsas to the Amendment'sratification).
2001]
Amendments
TheLawfulnessof the Reconstruction
377
had met a series of conditions,includingratificationof the Fourteenth
Amendment.5
Despite the bitterness of Reconstruction,for political purposes
the question of the amendments'validitywas quicklysettled:In 1872
both major parties accepted all three.6Since then the issue has attractedalmost no attentionfor practicalor even theoreticalpurposes.7
Americanconstitutionaltheoristsnow have reasonto think about
this issue because the most prominentof them has made it central to
his work. Bruce Ackerman says that twice since the framing, the
American people have changed their constitution without using the
Article V process.The second time, in the 1930s,they dispensed with
the writtenamendmentscontemplatedby that provision.8But the first
time, in the 1860s,they used a procedurethat resembled but was not
Article V to produce three authoritativetexts that had the appearance, but only the appearance,of Article V amendments.9Hyperformalists and hypertextualists,says Ackerman,cannot account for the
Thirteenth and FourteenthAmendments,which became part of the
fundamentallaw througha process inconsistentwith the formal rules
of Article V's text.10
This Article is concerned specificallywith two objections to the
ratificationprocess.First is the claim that some or all of the southern
state legislaturesthat ratified the Thirteenthand FourteenthAmendments lacked the legal power to act for their states. Second is that
5 See Act of March2,1867, ch CLIIL,? 5, 14 Stat428,429 (enumeratingrequirementsfor
admissionof senatorsandrepresentatives).
6 See Donald Bruce Johnson,ed, 1 National Party Platforms41, 46-47 (Illinois 1978)
(Democraticand Republicanplatformsof 1872).
7
The SupremeCourtcast a sidelongglance at these problemsin Colemanv Miller,307
US 433, 451-56 (1939) (Kansas),and its companioncase, Chandlerv Wise,307 US 474, 477-78
(1939) (Kentucky),whichrefusedto reachthe meritsof two challengesto state ratificationof the
proposedChildLaborAmendment.
The leadinglaw reviewarticleson this subjectare FerdinandF.Fernandez,TheConstitutionality of the FourteenthAmendment,39 S Cal L Rev 378, 379,385 (1966) (defendingthe ratification process); Joseph L. Call, The Fourteenth Amendment and Its Skeptical Background, 13
BaylorL Rev 1, 1, 16-17 (1961) (criticizingthe ratificationprocess);PinckneyG. McElwee,The
14th Amendment to the Constitution of the United States and the Threat That It Poses to Our De-
mocraticGovernment,11 SC L Q 484, 484, 510-13 (1959) (criticizingthe process);andWalterJ.
Suthron, Jr., The Dubious Origin of the Fourteenth Amendment, 28 Tulane L Rev 22, 40-44
(1953) (raisingbut not answeringquestionsaboutthe ratificationprocess).
8
Bruce Ackerman, 2 We the People: Transformations 23-26 (Belknap 1998) (discussing
similaritiesand differencesbetweenReconstructionand the New Deal).
9 "While the ReconstructionRepublicans repudiated the federalist premises of the
Founding,they memorializedtheirrevolutionaryreformsby placingthem in legal packagesthat
resembleArticleFive amendments-bearingthe numbersXIII andXIV andplacingthemselves
in sobersequencewithother amendmentsof less uncertainpedigree."Id at 269.
10 In a chaptertitled "FormalistDilemmas,"Ackermanexplains:"Thisbook's centraltarget is hypertextualism-the naive, but orthodox,view that Article Five providesa framework
withinwhichmodernlawyerscan explainall valid amendmentssince the Founding."Id at 115.
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those ratifications,even if made by valid state legislatures,were void
because they were made under unlawfulpolitical pressurefrom the
nationalgovernment.1I maintainthat the proposaland ratificationof
the Reconstructionamendmentswas legally effective under Article
V.1The words "legallyeffective"are chosen carefully,for the argu11 The debate over the amendments includes other issues, but they are not actually very
difficult. One question is whether the Congresses that proposed the amendments were themselves valid. The objection is that they did not represent the entire Union. Both houses of the
Thirty-eighth and Thirty-ninth Congresses, however, contained an absolute majority of the Senate and House even if the South was counted in the denominator. Hence each house had a quorum to do business under the Constitution. See US Const Art I, ? 5, cl 1 (defining quorum as a
majority). The quorum requirement does not distinguish between votes on constitutional
amendments and other business. Whether the houses should have acted on any major questions,
including a constitutional amendment, while a substantial part of the country was unrepresented
was a question of policy, not power.
Next, several of the southern states that ultimately ratified the Fourteenth Amendment did
so only after their legislatures had earlier considered ratification without ratifying. See 1 USC
LXII-LXIII (1994) (listing ratifications and prior rejections). This raises the longstanding question whether a state may ratify after having once rejected. See, for example, Coleman, 307 US at
450 (refusing to decide whether a state that has once rejected may then ratify). Although the
question is old, it seems easy to me. Article V refers only to ratification. It does not mention, does
not attach any consequences to, and does not define, rejection. It does not distinguish, for example, among cases in which one house of the legislature votes down a motion to ratify and the
other house does not act, cases in which neither house acts at all (perhaps because the amendment clearly is doomed in that state), and cases in which both houses defeat motions to ratify.
The inference is that a state's options under Article V are ratification and non-ratification.
Third is a more difficult question: whether a ratification may be rescinded. Two northern legislatures. Ohio's and New Jersey's, adopted resolutions purporting to rescind their ratifications of
the Fourteenth Amendment. See 1 USC LXII-LXIII (listing ratifications and purported rescissions). Whether a state lawfully may rescind depends on whether ratification is an ongoing
choice, so that a state may move in and out of it, or a once-and-for-all decision as to which the
trap slams shut and stays shut. Michael Stokes Paulsen addresses this issue in developing a theory of Article V based on the model of legislation. Michael Stokes Paulsen, A General Theory of
Article V:The Constitutional Lessons of the Twenty-seventhAmendment, 103 Yale L J 677,722-23
(1993). It is not necessary to resolve this question, however, because if the southern ratifications
were valid, Ohio and New Jersey were not needed; and if the southern ratifications were invalid,
Ohio and New Jersey would not make up the difference. On July 28, 1868, Secretary of State
Seward proclaimed the Fourteenth Amendment ratified, listing thirty ratifications, which included Ohio and New Jersey.William H. Seward, Proclamation No 13, July 28, 1868, 15 Stat Appendix 708, 708-10. In July 1868, there were thirty-seven states in the Union, see 1 USC LXIII,
and twenty-eight is more than three-fourths of thirty-seven.
12
Although this Article is about all three Reconstruction amendments, it will be necessary
to discuss in detail only two, the Thirteenth and the Fourteenth. The Fifteenth Amendment was
proposed by the Third Session of the Fortieth Congress, which had members from substantially
more states than the Congresses that proposed the two earlier amendments. Secretary of State
Hamilton Fish promulgated it on March 30, 1870, listing thirty ratifying states, which was one
more than necessary. Hamilton Fish, Proclamation No 10, March 30,1870,16 Stat 1131,1131.The
legislature of New York, which was on Fish's list, had passed a resolution purporting to withdraw
its ratification. Id. All of the southern ratifications came from governments established under
congressional reconstruction. Three of the southern ratifications came from states that had not
yet been declared entitled to representation in Congress (Mississippi, Texas, and Virginia), and
one came from a state that had been declared eligible but then treated by Congress as possibly
ineligible (Georgia). See id (listing ratifying states); note 184 (listing dates of readmission). The
objections to the Fourteenth and Fifteenth Amendments are thus the same, and if those objec-
2001]
TheLawfulnessof the ReconstructionAmendments
379
ment is formalistic:it does not deny that duringReconstructionArticle V badly served its purpose of balancingthe federal and national
principles.3Moreover,I will admit the possibilitythat the amendment
process included illegal acts,some of them by Congress.Nevertheless,
I will assert that the amendmentssatisfied the Constitution'sexplicit
and implicit requirementsfor validity.Those requirementsdo not implement every plausible descriptionof Article V's purposes and they
tolerate some illegalities.
Part I presents yet another brief history of Reconstruction,this
one focused on the ratification process and in particular on the
changes in southern state governments.That Part also discusses the
Republicans'responsesto the legal objectionsthey faced. Part II then
presents three plausible theories under which the amendmentswere
validly ratified. One claims that massive disruptionsto a state's government can temporarilyremove that state from the total number of
which three-fourthsare needed for ratification,thus for a while taking
it out of the Article V denominatorwithout permanentlytakingit out
of the Union. I find this thesis plausible but unpersuasive,although
others may be more persuaded.The other two theories assert that legally doubtfulstate governmentsneverthelessmay performlegally effective acts, either because the legal doubts are resolved by recognition from the federal political branchesor because in general a governmentde facto may bind the state for whichit acts despite defects in
its claim to power.I think the first rationalearguablebut very difficult
ultimatelyto assess,while I think the second is correct.Both theories
that include all the states in the denominatormust deal with the claim
that Article V does not count ratificationsobtained through federal
political coercion.I suggest that the problemposed by coercion is not
fatal.14Part III then moves away from the detail and explainshow it is
tions are not fatalto the Fourteenththey are not fatalto the Fifteentheither.
13 That is the heart of Ackerman's
argumentthat the ratificationprocesswas inconsistent
withArticleV."[I]twas the ReconstructionRepublicans,not the New Deal Democrats,who first
establishedthat We the People could speak throughnationalinstitutionsand demandthat the
states accept the primacyof Americancitizenship."Ackerman,2 Wethe People at 269 (cited in
note 8).
14 All three theories share two importantfeatures:they make it unnecessaryto decide
whether Congress acted fully lawfully when it displaced ten existing southerngovernments
throughthe MilitaryReconstructionActs,andthey are immuneto the argumentthatthe validity
of the ThirteenthAmendmentimpliesthe invalidityof the Fourteenth,and vice versa.The latter
argumentarisesnaturallybecausein the firstMilitaryReconstructionAct Congressdeclaredten
existingsoutherngovernmentsto be provisionalonly,see Act of March2, 1867,? 6, 14 Stat at
429, even thoughseveral of those state legislatureshad participatedin ratifyingthe Thirteenth
Amendment,see 1 USC LXII (listingratifications).PresidentJohnsonpointedto this problemin
his veto message."If this assumptionof the bill be correct,[the ten illegal legislatures']concurrence can not be consideredas havingbeen legally given,and the importantfact is made to appear that the consentof three-fourthsof the States-the requisitenumber-has not been constitutionallyobtainedto the ratificationof [the ThirteenthAmendment]."AndrewJohnson,Veto
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sensible to readArticleV so that it is so formalisticand so tolerantof
possiblyillegal acts.
After describingthe many problemsconfrontingthe Thirteenth
and FourteenthAmendments,Ackermanasks,"Is there any way out
This Article is a voice that cries from
of the textualistwilderness?""'
that wilderness.It says that the path of the Reconstructionamendments,althoughin manywayswinding,was legallystraight.
I. HISTORY
A. TheAdoption of the ThirteenthandFourteenthAmendments
Part I.A's summaryof political and legal developmentsin the
1860sis dividedinto three parts.It first treatsthe periodfrom the beginningof secession throughthe proposalof the ThirteenthAmendment, a period duringwhich loyalist regimeswere erected in four seceded states.Then, at the cusp between civil war and reconstruction,
Part I.A.2 pauses to set out the leadinglegal theories aboutwhat had
happenedto the Union and what was needed to put it back together
again.Those theoriesformedthe basis for the events recountedin the
next part,which describesReconstructionby PresidentJohnsonand
Congress,focusing on the legal status of the southernstate governments and the progress of the Thirteenthand FourteenthAmendments.
1. Southernstate governmentsduringthe war.
Shortlyafterthe presidentialelection of 1860,southernstates began to secede. South Carolina,home of the fire-eaters,took the lead
and set the proceduralprecedentunder which the legislaturewould
call a convention on the issue. By the time Lincoln took office on
March4, 1861, the states of the lower South had seceded, formed a
provisionalConfederategovernment,and tauntedthe Yankeesby inauguratingtheir Presidentbefore Lincoln could take the helm of a
shrinkingUnion.16
ThroughMarchand into April of 1861,the greatquestionsof union or disunion,war or peace, hung in the balance.Probablythe crucial weight on the scale was Virginia,withoutwhich the Confederacy
Message, Mar 2,1867, in James D. Richardson, ed, 6 A Compilation of the Messages and Papers of
the Presidents 1 789-1897 448,508 (GPO 1897).
15 Ackerman, 2 We the People at 113 (cited in note 8).
16 The secession of the lower South is described in David M. Potter, The Impending Crisis:
1848-1861 490-99 (Harper & Row 1976). South Carolina's convention adopted its ordinance of
secession on December 20,1860, Mississippi's convention did so on January 9,1861, Florida's on
January 10, Alabama's on January 11, Georgia's on January 19, Louisiana's on January 26, and
Texas's on February 1. See id at 492,498.
2001]
TheLawfulnessof the Reconstruction
Amendments
381
was not much of a country.As long as the federal governmentdid not
seek to coerce the states, the Virginia secessionists were unable to
achieve a majority.When Lincoln responded with force to the attack
on Fort Sumter,however, the vote in Virginiawent in favor of secession.7Arkansasfollowed on May 6, North Carolinaon May 21.18Tennessee, which was bitterly divided, followed a slightly different path,
effectivelyjoining the Confederacyon May 7, althoughthe people did
not vote in favor of secession until June8.1By the middle of May 1861
eleven states were substantiallycontrolled by authoritiesthat looked
to the Confederacyas their federal government.2
The Union as Americanshad known it had collapsed.
Reconstructionbegan in Virginiabefore that state's secession was
even complete.After the Virginiaconventionvoted to secede on April
17, a series of mass meetingsin the northwestpart of the state resulted
in a convention that met in Wheeling on May 13, 1861.21This first
Wheeling convention denounced secession, urged the people to vote
against it in the coming referendum,and called for another convention of Unionists to meet in June should the statewide vote go for secession.22When disunion prevailed, Unionists employed irregular
means to select delegates to a second meeting to convene in Wheeling
on June 11.23That body assumed the power of a convention of the
17 On
February4, 1861,Virginiaelected a conventionto deliberateon the crisis.See id at
505.Advocatesof immediatesecessionfaredpoorlyin the election of delegates,and the people
endorsed a requirementthat secession be submittedto a referendum.See id at 507-08. The
conventionfirstmet on February18, but did not vote in favor of secessionuntilApril 17, soon
after the attack on Fort Sumter.See Charles H. Ambler, Francis H. Pierpont:Union War
Governor of Virginia and Father of West Virginia 79-80 (North Carolina 1937).
18 Edward McPherson, The Political History of the United States of America, During the
GreatRebellion4-5 (Philp& Solomons1864) (listingactionstaken by secedingstates' legislatures).
19 James Walter Fertig, The Secession and Reconstruction of Tennessee 20, 26, 27 (Chicago
1898).On February9,1861,in a referendumcalledby the legislature,Tennessee'svotersrejected
a conventioncall and voted againstsecession.Id at 19-20. The Governorand legislature,however,were pro-secession,and a committeeappointedby the legislatureenteredinto negotiations
with the ConfederateStates.Id at 23-24. On May 7 the legislatureratifieda militaryalliance
with the Confederacy,havingthe previousday providedfor a referendumon secession.Id at 2425.The referendum,conductedafterthe state had in effect seceded,approvedthat act by a vote
of 104,913to 47,238.Id at 27.
20 McPherson,Rebellionat 2-6 (cited in note 18) (listingthe Confederatestates and their
respectivetime lines for secedingfromthe Union).
21
See James G. Randall, Constitutional Problems Under Lincoln 438 (Appleton 1926) (ex-
plainingthe divisionof Virginiainto VirginiaandWestVirginia).Membersof the May convention in Wheelinggenerallyhad not been elected in any regularfashion,so it was itself a mass
meetingmore thana constituentbody.See id at 438-39.
22 Id at 439.
23 Id at 440-43.
Accordingto Randall,delegates"werechosen in variousways,sometimes
by mass meeting,sometimesby the county committee[of safety organizedby local Unionists],
Therewas no popularelection in the true sense."Id
sometimesapparentlyby self-appointment.
at 440-41.
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[68:375
people of Virginiaand reorganizedthe state government,actingto reIt
place the officers who had taken the state into the Confederacy.24
elected as GovernorFrancisH. Pierpont,a westernVirginianand ardent Unionist,and arrangedfor the creationof a legislatureto replace
the body sittingin Richmond.2On June 21, 1861,GovernorPierpont
wrote to AbrahamLincoln,calling on the Presidentto performhis
constitutionalduty and suppressthe rebellion and violence that had
overcomemuchof Virginia.2
In July 1861 the new legislaturemet at the "RestoredVirginia"
capitalof Wheelingin a specialsession called by GovernorPierpont.2
It elected two Unionist Senators,WaitmanT.Willey and John S. Carlile, to replacethe secessionistsJamesM. Masonand R.M.T.Hunter.2
On July13 theircredentialswere presentedto the Senateby a senator
fromTennessee,AndrewJohnson,andenthusiasticallyacceptedby the
Republican majority despite some doubts about the Wheeling regime.2In similarfashion the House seated four representativesfrom
Virginiacongressionaldistrictscontrolledby the Unionistauthorities.0
Pierpontand his colleagues became even more of a rump once
they had assisted in the creation of West Virginia.After years as a
permanentminorityin the state's councils,westernVirginiansseized
the opportunityprovidedby their nominalcontrolof the government
of Virginia and sought a permanentsolution. A convention met at
Wheeling,organizeda new state, sought and obtained the Pierpont
legislature'spermissionto subdividethe Old Dominion, and applied
24 Id at 443-44.
25 Id at 445-50. Governor
Pierpont is emblematic of the confused events in Virginia, and
the strange origins of West Virginia, in that it is not clear how to spell his name. Francis Harrison
Pierpont spelled his own last name Peirpoint until 1881, when he decided that his father, Francis
Peirpoint, and his relatives, had been spelling it incorrectly for many decades. See Ambler, Pierpont at 3 (cited in note 17). (The middle name came from the elder Peirpoint's former commander, William Henry Harrison. Id.) In keeping with the Governor's wishes I will refer to him
as Pierpont.
26 Ambler, Pierpont at 388 (cited in note 17). Under Article IV of the Constitution, the
United States is to protect each state against invasion "and on Application of the Legislature, or
of the Executive (when the Legislature cannot be convened) against domestic Violence." US
Const Art IV, ? 4. In keeping with the Constitution, Governor Pierpont recited that "large numbers of evil-minded persons" were "making war on the loyal people of the State"; he could not
convene the legislature in time to act in the premises; and he requested that the President "furnish a military force to aid in suppressing the rebellion and to protect the good people of this
Commonwealth from domestic violence." Ambler, Pierpont at 388. In answer to Pierpont's letter,
Secretary of War Simon Cameron explained that the President had directed him to tell the Governor "that a large additional force will soon be sent to your relief." Id. Eventually, under the
command of Ulysses S. Grant, that force did relieve Governor Pierpont.
27 Randall, Constitutional Problems at 449
(cited in note 21).
28 Id at 451.
29 See Cong Globe, 37th Cong, 1st Sess 103-09 (July 13, 1861) (debate and vote).
30 See
Cong Globe, 37th Cong, 3d Sess 2 (Dec 1, 1862) (listing representatives).
2001]
Amendments
The Lawfulnessof the Reconstruction
383
to Congress for admission to the Union.1'Once again, the Pierpont
government'sdoubtfulclaim to representa majorityof Virginianswas
discussed in Congress and once again the decision was to accept the
loyal minority as speaking for the whole.3 President Lincoln sought
his cabinet's advice before signing the legislation,then did so despite
an opinion fromAttorney GeneralBates that the Wheelinglegislature
In June 1863WestVirginia
did not lawfullyrepresentall of Virginia.33
entered the Union.34Pierpont,although a westerner,moved to Alexandria,where he and his associatesmore or less governed those parts
of the state underUnion occupation.3
31
Randall, Constitutional Problems at 451-53 (cited in note 21). Article IV provides "New
States may be admittedby the Congressinto this Union;but no new State shall be formedor
erectedwithinthe Jurisdictionof any otherState;nor any Statebe formedby the Junctionof two
or more States,or Parts of States,without the Consent of the Legislaturesof the States concernedas well as of the Congress."US ConstArt IV,? 3.
32 Randall,Constitutional
Problemsat 454-56 (citedin note 21). One opponentof partition
was RepresentativeJosephSegar,who had been elected from countiesin easternVirginiathat
were underUnion control.Segararguedthat admittingWestVirginiawouldleave Virginiaitself
with no loyal governmentat all, whereasthe Wheelingorganizationwas a nucleusaroundwhich
Unionistswouldcollect.Cong Globe,37th Cong,3d Sess 55 (Dec 10, 1862).Anotherparticipant
in the congressionaldecision,RepresentativeJamesG. Blaine of Maine,later discussedthe debate in detail in his memoir. See James G. Blaine, 1 Twenty Years of Congress: From Lincoln to
Garfield457-69 (HenryBill 1884).Blaine describeda noteworthyexchangebetweenThaddeus
Stevens and John Binghamin the House. Stevens said that it was absurdto treat the Wheeling
legislatureas the legislatureof Virginia,but that he waspreparedto admitWestVirginia,not under the Constitution,but underthe law of war.Binghamrepliedthat the proceedingswere lawful: the rebel majority,who had abandonedtheir politicalrightsunder the Constitution,could
not be allowed to keep the loyal minorityfrom exercisingthe rightsthey retained,so in this
situationthe minoritywas entitled to speak for the state. See id at 464-65 (reviewingthe Stevens-Binghamdebate);Cong Globe, 37th Cong,3d Sess 50 (Dec 9,1862) (remarksof Rep Stevens);id at 56-59 (Dec 10,1862) (remarksof Rep Bingham).
33 Lincolncalled for the writtenopinionsof his departmentheads and the AttorneyGeneral,and the Cabinetdividedevenly on the question.Secretaryof State Seward,Secretaryof the
TreasuryChase,and Secretaryof WarStantonfavoredthe bill, while Attorney General Bates,
PostmasterGeneralBlair,and Secretaryof the NavyWelleswere opposed.See Randall,Constitutional Problems at 457-59 (cited in note 21); 10 Op Atty Gen 426,435 (Dec 27,1862) (Edward
Bates, AG). At the Cabinet meeting PresidentLincoln stated that the disloyal could not be
treatedas the politicalequalsof those who maintainedtheir loyalty,and thatwhile he was troubled by the dismemberment of Virginia he thought it a necessary war measure. See John G. Nico-
lay and John Hay,eds, 8 CompleteWorksof AbrahamLincoln 157-60 (Tandynew and enl ed
1905). In the end, Lincoln signed the bill, see Randall, Constitutional Problems at 460, which
conditionedadmissionof WestVirginiaon a state constitutionalamendmentprovidingfor gradual emancipationof slavesin the new state,see Act of December31,1862,ch VI, 12 Stat633,634.
34 AbrahamLincoln,Proclamation,Apr 20,1863,in Richardson,ed, 6 Messagesand Papers
of the Presidents at 167 (cited in note 14) (taking effect in sixty days).
35 Randall, Constitutional Problems at 461-63 (cited in note 21). Of particular interest for
thisArticleis restoredVirginia'srepresentationin Congress.TwoVirginiasenatorselected by the
Wheeling legislature were seated in July 1861. See Cong Globe, 37th Cong, 1st Sess 103-09 (July
13,1861) (debate and vote concerning the seating of Waitman T. Willey and John S. Carlile).
In the House, four Virginians were seated in the Thirty-seventh Congress, which sat from
1861 to 1863. Three were from what became West Virginia and one from eastern parts of the
state that were partially under the control of the Union. See Kenneth C. Martis, The Historical
Atlas of the United States Congressional Districts, 1789-1983 94-95 (Free Press 1982) (listing the
384
The Universityof Chicago Law Review
[68:375
While Virginians engaged in genuine self-reconstruction, creating
a loyal government with no official guidance from Washington City,
loyalists in other seceded states were given more of a push from the
center. By a proclamation of December 8, 1863, President Lincoln announced the terms on which he would recognize loyalist political organizations as state governments entitled to the benefits of Article
IV.6 He offered a pardon to most participants in the rebellion who
would take and faithfully keep an oath to support the Constitution
along with specified Union war measures.7 Under Lincoln's plan a
new state government could be formed by a group of oath-takers eligible to vote under state law as it stood at the time of secession if that
group amounted to at least one-tenth of the votes cast in the 1860
presidential election.38If republican in form, such a government, in the
President's view, would be entitled to the Article IV guarantees.3 Loyalists would seek to take the President up on his offer by forming new
governments in Louisiana, Arkansas, and Tennessee.
Thanks to Union naval superiority, major portions of the population and some of the territory of Louisiana came into federal hands
early in the war.4 The capture of New Orleans brought Louisiana's
membership of the Thirty-seventh Congress and displaying maps of their respective districts).
The Representative from eastern Virginia was Joseph Segar, from a district that contained the
Eastern Shore. See id. Lewis McKenzie claimed a seat from the Alexandria district, Cong Globe,
37th Cong, 3d Sess 602 (Jan 29, 1863) (credentials presented), but he was not seated, id at 1037
(Feb 17, 1863) (credentials rejected). No Virginian was seated by the House of Representatives
in the Thirty-eighth, Thirty-ninth, or Fortieth Congress. See Martis, Historical Atlas at 97-101
(showing the membership of the Thirty-eighth, Thirty-ninth, and Fortieth Congresses and maps
of their districts).
36 Lincoln, Proclamation, Dec 8, 1863, in Richardson, ed, 6 Messages and Papers of the
Presidents at 213-15 (cited in note 14).
37 The oath was:
,
, do solemnly swear, in presence of Almighty God, that I will henceI,
forth faithfully support, protect, and defend the Constitution of the United States and the
Union of the States thereunder; and that I will in like manner abide by and faithfully support all acts of Congress passed during the existing rebellion with reference to slaves, so
long and so far as not repealed, modified, or held void by Congress or by decision of the
Supreme Court; and that I will in like manner abide by and faithfully support all proclamations of the President made during the existing rebellion having reference to slaves, so long
and so far as not modified or declared void by decision of the Supreme Court. So help me
God.
Id at 213-14. Excluded from the pardon offer were various specified categories of Confederate
leaders, those who had broken an earlier oath to the United States, and those who had violated
the laws of war with respect to federal military personnel who were "colored persons, or white
persons in charge of such."Id at 214.
38 Id.
39 Id. To avoid misunderstanding, he explained, "it may be proper to further say that
whether members sent to Congress from any State shall be admitted to seats constitutionally
rests exclusively with the respective Houses, and not to any extent with the Executive." Id at 215.
40 In the early morning of April 24, 1862, United States Navy forces under Admiral David
Farragut began an assault in which they fought their way past the Confederate forts and vessels
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First and Second CongressionalDistrictslargelyunder Union control,
and in December 1862 special elections were held to fill out the remaining term of the Thirty-seventhCongress.41
(That term would end
on March 3, 1863.42)After considerabledebate, the House seated the
Louisiana claimants in February 1863; they would be the last from
Louisianauntil 1868.43
Louisiana was thus one of the targets of Lincoln's program of
creating loyal state governments,a program that would be implemented by General Nathaniel P.Banks,commandingthe Department
of the Gulf.44
On December 24,1863, the PresidentinstructedBanks to
"give us a free State reorganizationof Louisianain the shortestpossiBanks conducted two elections in early 1864.The first, to
ble time."45
select state-wide officers under the Louisiana Constitution of 1852,
was held in February 1864; the Governorshipwas won by Michael
Then in March
Hahn, a moderate leader of the Free-State party.46
General Banks conductedan election for delegates to a constitutional
convention.47The convention drafted a constitution that abolished
slaverybut restrictedthe suffrageto whites while authorizingthe legislatureto extend it to non-whiteson the basis of militaryservice,taxpaying, or intellectual fitness.48The Free-State Constitutionwas rati445defendingNew Orleans.J.G.Randalland David Donald, TheCivilWarand Reconstruction
46 (Raytheon2d ed 1969).Once Farragut'sships had taken commandof the riverand had the
city undertheir guns,the Confederatetroopswithdrew.Id at 446.A full occupyingforce under
GeneralBenjaminButler,whose harshrule wouldbecome a cause c6elbrein the South,landed
on May2, and New Orleanswas firmlyunderUnion control.Id.
41
See Joe Gray Taylor, Louisiana Reconstructed, 1863-1877 16-17 (LSU 1974).
42 See CongGlobe,37th Cong,3d Sess 1553 (Mar3,1863)
(adjourning).
43 Taylor,LouisianaReconstructed
at 16-17 (cited in note 41). See also Cong Globe, 37th
Cong,3d Sess 1031-35 (Feb 17, 1863) (debate on seatingLouisianaclaimants);id at 1036 (both
claimantsdeclaredentitled to seats,Hahn swornin); id at 1208 (Feb 23, 1863) (Flanderssworn
in).
44 See Taylor,LouisianaReconstructed
at 18-25 (cited in note 41) (describingBanks'sactions to bringLouisianabackinto the Union).
45 Id at 25.
46 See id at 27-30 (reviewingthe electoralcontest).The Free-Stategroupingfolloweda politicalline betweenthatof the ConservativeUnionists,who strucksome as Copperheads,andthe
Radicals.See id.As Taylornotes,the poll in this electionwas more than20 percentof thatcastin
the 1860 presidentialelection, id at 30, indicatingthat Union-controlledLouisianaeasily could
satisfyLincoln's10 percentrequirement,id at 29.
47 Id at 42. Louisiana's1852 constitutionextended the suffrageto every free white male
citizen who had resided in the state for one year and in the parishin which he voted for six
months.See La Constof 1852Art 10 (superseded1864).Banks'selectioncall employedthis rule
with the furtherqualificationof Lincoln'samnestyoath.Taylor,LouisianaReconstructedat 42
(cited in note 41). The constitutionalconvention'sapportionmentrule,however,differedfrom
that of the legislatureunder the 1852 constitutionin that the conventionwas apportionedaccordingto the white population,whichreducedLouisiana'sversionof the SlavePower.See id at
43 (notingthat each delegaterepresentedtwo thousandwhiteinhabitants).
48 See La Const of 1864 Arts 1, 2 (superseded1868) (abolishingslavery);id Arts 14, 15
(providingsuffragerules).
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386
[68:375
fied by a majorityof the votes cast in an election on September5,
1864.49The new legislature met in October 1864 and elected two
United States Senators,R. King Cutler and CharlesSmith,the latter
to a term that would expire in March1865."5When it convenedagain
in January1865,the legislatureelected GovernorHahn to the term
that wouldbegin in Marchof that year.5Membersof Congressfor the
term to expirein March1865had been chosen at the September1864
election.52None of the Louisiananswas seated, althoughthe Senate
JudiciaryCommittee had reported favorably as to the senatorial
claimants.5
Arkansasfollowed a broadly similarpath, although apparently
with more spontaneousactivity by local Unionists.Little Rock and
Fort Smithfell to the United States in September1863,and in October loyalists held mass meetings in those cities.2In response to Lincoln's 10 percentproclamation,they organizeda series of meetingsto
elect delegates to a convention that met in Little Rock in January
1864.55
The convention drafted a constitutionthat abolished slavery
but retainedthe all-whitefranchise.'On PresidentLincoln'sinstructions,the federalmilitaryregisteredvoters and conductedan election
in the middle of March.'Accordingto the officialreturns,the constitution was ratified by the lopsided vote of 12,179 in favor and 226
against.
49 The vote was 6,836 in favor and 1,566 against, which satisfied Lincoln's 10 percent requirement. Taylor, Louisiana Reconstructed at 52 (cited in note 41).
50 Id at 54.
51
Id.
52 See id at 53-54 (describing the election of representatives).
53 On December 6, 1864, the credentials of the Louisiana senatorial claimants were referred to the Senate Judiciary Committee. Cong Globe, 38th Cong, 2d Sess 8 (Dec 8, 1864). On
February 18, 1865, the committee's Chairman, Lyman Trumbull of Illinois, introduced as the
committee's report a resolution recognizing the reconstructed regime as the legitimate government of Louisiana, with the implication that the claimants' credentials were valid. See id at 903
(Feb 18, 1865). The resolution was debated at some length, see id at 1061-70 (Feb 24, 1865): id at
1091-99 (Feb 25, 1865); id at 1101-11 (Feb 25, 1865). and not adopted, see id at 1126-29 (Feb 27,
1865).
The day before Trumbull'sfavorable report on the Louisiana claimants, the House Committee on Elections had reported favorably on two claimants each from Louisiana and Arkansas, see
id at 870 (Feb 17, 1865), but they were not seated either, see Taylor, Louisiana Reconstructedat
54 (cited in note 41) (Louisiana's elected officials); Carl H. Moneyhon, The Impact of the Civil
War and Reconstruction on Arkansas: Persistence in the Midst of Ruin 165 (LSU 1994) (Arkansas's elected officials).
54 See Moneyhon, Impact of the Civil Warat 159 (cited in note 53).
55 Id at 159-61.
56 See Ark Const of 1864 Art
V, ? 1 (superseded 1868) (abolishing slavery); id Art IV, ? 2
(establishing suffrage for free white male citizens).
57 Moneyhon, Impact of the Civil Warat 162-63 (cited in note 53).
58 Id at 164. Substantial
parts of the state were still under Confederate control.
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When senatorsand representativeselected underthe new regime
Two objecpresented their credentials in 1864 they were rejected.59
tions were especially important:that the loyalist governmentdid not
representa majorityof the people of Arkansasand that its authority
was tainted by the President'srole in creatingit. SenatorSaulsburyof
Delaware combined the two argumentswhen he complainedthat the
Arkansasclaimantscame from "a rotten borough governmentestablished by AbrahamLincoln,and not by the people of Arkansas."6
Tennesseewas last of the three to organizeunder Lincoln'splan.
In March1862,PresidentLincolnpersuadedSenatorAndrew Johnson
to serve as militarygovernor of those parts of the state under Union
On January9, 1865,a loyalist convention,which was really a
control.61
mass meeting in that many of its members had been chosen irregularly, convened in Nashville.62Governor (and Vice President-elect)
Johnson urged the convention to take action even though its origins
were questionable;he explainedthat "[a]nyman may drawup resoluThe delegates
tions, which when ratified by the people become law."63
amendment
a
constitutional
abolishing slavery and an acproposed
back to civilianrule;
transition
for
the
schedule
providing
companying
these were submitted to a referendum on February22, 1865.64The
schedule also regulated suffrage for the ratificationreferendum,requiringthat voters take a titanium-cladloyalty oath.65The proposals
59 Id at 165.
60 CongGlobe,38th Cong,1st Sess 2903 (June13,1864).In similarfashionSenatorCharles
Sumnerarguedthat the new Arkansasgovernmentwas revolutionaryin characterand, worse
yet, couldbe tracedto a militaryorder.See id at 2897.
61 ThomasB.Alexander,PoliticalReconstruction
in Tennessee14-15 (Vanderbilt1950).
62 See id at 16-17 (describingthe delegates).
63 Fertig,Secessionand Reconstruction57 (cited in note 19) (internalquotationomitted)
(quotingJohnson'sspeechto the convention).
64 Ben PerleyPoore,ed, 2 TheFederaland StateConstitutions,
and Other
ColonialCharters,
OrganicLawsof the UnitedStates1692n * (GPO 2d ed 1878).The amendmentabolishedslavery
and denied to the legislaturethe power to make any law recognizingthe right of propertyin
man. See Tenn Const of 1834 Amend I (superseded1870).The schedule went on at greater
length.It declaredthe ordinanceof secession treasonous,null, and void, then it generallynullified actionsof the ConfederateState government,and ratifiedthe appointmentsmade by GovernorJohnsonto state offices.Id Schedule,?? 2-7.
65 TheTennesseedelegatesrequiredvotersto take the followingoath:
I solemnlyswearthat I will henceforthsupportthe Constitutionof the United States,and
defend it againstthe assaultsof all its enemies;that I am an active friendof the Government of the United States,and the enemy of the so-called ConfederateStates;that I ardently desire the suppressionof the present rebellion against the Governmentof the
United States;that I sincerelyrejoicein the triumphof the armiesandnaviesof the United
States,andin the defeat and overthrowof the armies,navies,andof all armedcombinations
in the so-called ConfederateStates;that I will cordiallyoppose all armisticesor negotiations for peace with rebels in arms,until the Constitutionof the United States,and all laws
and proclamationsmade in pursuancethereof,shall be establishedover all the people of
every State andTerritoryembracedwithinthe nationalUnion;and that I will heartilyaid
and assist the loyal people in whatevermeasuresmay be adopted for the attainmentof
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388
[68:375
On March4, 1865,in an election also conwere ratifiedin February.66
ductedunderthat oath requirement,a Governorand legislaturewere
chosen.67
WithTennesseein the fold, four states had at least the show
of loyalistgovernments,three of them organizedunderLincoln'sproposal.
That proposal had not gone down well with everyone in Congress.Both substanceand turf were at issue, and in 1864the first session of the Thirty-eighthCongressset about consideringits own plan.
The result was the Wade-Davisbill, principallysponsoredby Senator
BenjaminWade of Ohio and RepresentativeHenryWinterDavis of
Their bill authorizedthe Presidentto
Maryland,both Republicans.68
each
seceded
state
a provisionalgovernorwho would adfor
appoint
ministerstate law while a new governmentwas formed.64
Creationof
such a governmentwould requirean oath of allegiancefrom a majorWith such oaths in place, a constitutional
ity of white male citizens.70
conventioncould be elected by voters who had not held Confederate
office or voluntarilyserved in its military.7Should the convention
draftand the people ratifya constitutionthat abolishedslavery,repudiatedthe Confederatewardebt, and disenfranchisedformerConfederate officials,the state, upon a furtheraffirmativevote of Congress,
wouldbe entitledto senatorsand representatives.72
Proponentsof congressionalprimacywith respectto Reconstruction maintainedthat it derivedfrom the GuaranteeClauseof Article
IV and the relation between executive and legislativepower.73
While
the Presidentcould carryout the law,and in doingso mustmakesome
legal judgments,ultimatelyit was up to Congressto formulatethe applicable rules and conclusivelydetermine the federal government's
PresidentLincolntook
position on the status of state governments.74
no actionwhen the Wade-Davisbill was presentedto him with under
an hour (and hence less than ten days (Sundaysexcepted)) to go in
those ends; and further, that I take this oath freely and voluntarily and without mental reservation: So help me God.
Poore, ed, 2 Federal and State Constitutions at 1693 (cited in note 64).
66 See id at 1692 n *.
67 Tenn Const of 1834 Amend I, Schedule, ? 8 (superseded 1870) (setting forth the election
date).
68 See HR 244,38th Cong, 1st Sess (Feb 15, 1864), reprinted in Richardson, ed, 6 Messages
and Papers of the Presidents at 223-26 (cited in note 14).
69 Id? 1.
70 Id?2.
71
72
Id ?? 2-4.
Id??7-8.
73 See Cong Globe, 38th Cong, 1st Sess Appendix 82-85 (Mar 22, 1864) (remarks of Rep
Davis).
74
See id.
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TheLawfulnessof the Reconstruction
Amendments
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the congressionalsession.75Lincoln did issue a pocket veto proclamation explainingthat he was "unpreparedto declare that the free State
constitutions and governments already adopted and installed in Arkansas and Louisianashall be set aside and held for naught."76
But he
was flexible: if the loyal people of a state liked the Wade-Davisformula better than they liked his, he would supportthem by appointing
militarygovernorswho would proceed in accordancewith the bill.77
When the second session of the Thirty-eighthCongressconvened
in December 1864, it took up a constitutionalamendmentabolishing
slavery.After some pulling and hauling both Houses mustered the
two-thirdsmajorityneeded to approve what became the Thirteenth
Amendment.7 For reasons that have never been entirely clear, the
amendmentwas presented to the Presidentpursuantto Article I, Section 7, of the Constitution,and signed.79Ratificationsbegan to pour
80
in.
75 See AbrahamLincoln,Proclamation,July8,1864, in Richardson,ed, 6 Messagesand Papers of the Presidentsat 222-23 (cited in note 14) (explainingpocketveto of Wade-Davisbill).
76
Id at 223.
77 Id. To be more exact, Lincolnwas preparedto appointmilitarygovernorswho would
administerthe Wade-Davisterms as soon as militaryresistancehad been suppressedand the
people had returnedto theirobedienceto the Constitutionand lawsof the United States.Id.
78 See Herman Belz, A New Birth of Freedom:The RepublicanParty and Freedmen's
Rights,1861-1866 114 (Greenwood1976) (noting difficultyin passingthe amendmentand its
a matteras
passage on January31, 1865).Draftingthe amendmentwas not as straightforward
one may think.See id at 113-34 (recountingdebates).As Belz explains,associatedwiththe abolition of slavery was the question of the status of freed slaves, and in particularthe question
whetheremancipationautomaticallyconferredon them civil or even politicalrights.Id at 11634. Belz maintainsthat the draftersdeliberatelydrew on the languageof the NorthwestOrdinancebecausethat language,as appliedin the statescreatedunderit, was understoodas providing mere libertyandno particularset of civil or politicalrights.Id at 114-15,125-26.
79 See FrancisNewtonThorpe,3 TheConstitutional
Historyof the UnitedStates,1765-1895:
1861-1895 154 (Callaghan1901) (notingthat Lincolnfollowedthe normalprocessfor approval
of legislation).Article I, Section 7, requiresthat every bill, vote, resolution,or order"to which
the Concurrenceof the Senate and House of Representativesmay be necessary(except on a
questionof Adjournment)shallbe presentedto the Presidentof the United States"for signature
or veto. US ConstArt I, ? 7, cl 3. Whetherit appliesto constitutionalamendmentsis a longstanding puzzle.With the exceptionof the Thirteenth,amendmentsproposedby Congresshave not
been submittedto the President,evidentlyon the theorythat they are a specialcase not covered
by Section 7. The issue was raised in the 1790s with respect to the EleventhAmendment.In
Hollingsworthv Virginia,3 US (3 Dall) 378 (1798),the Courtruledagainstthe partyobjectingto
the amendment(part of the objectionwas that the Presidenthad not signed the amendment),
but the extremelybriefaccountin Dallas'sreportgives no explanationfor the holding.See id at
381.In 1865,SenatorTrumbullquicklymovedto scotchany precedentialeffect of the submission
of the ThirteenthAmendmentto Lincoln,introducinga resolutionstatingthat the President's
signaturewas not required.See CongGlobe,38th Cong,2d Sess 588,629-31 (Feb 4,1865) (resolutionand amendment);Thorpe,3 Constitutional
Historyat 154.
80 See
Thorpe,3 ConstitutionalHistoryat 157 & nn 2-4 (cited in note 79) (providingchronology of rapidratifications).
390
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[68:375
2. Theoriesof reconstruction.
Those ratificationsraised some tricky questions.Four of them
came from organizationspurportingto be the legislaturesof Virginia,
What about them? How many
Louisiana,Tennessee,and Arkansas.8'
states were there,how manyof them had legallyvalidlegislatures,and
if therewere fewer legislaturesthanstates,did ArticleV requireratification by three-fourthsof the states or three-fourthsof the legally
valid state legislatures?In response to these and related questions
concerning the legal capacities of the states, Americans produced
manytheoriesof reconstruction.Fromthe mountainof wordsdevoted
to this subjectduringthe 1860s,I think it is possible to extracta few
gold nuggetsidentifyingthe leadingpositionstaken by participantsin
the debate.8
All theories of what had happenedsince 1860addressedthis basic question:what was the legal effect of the ordinancesof secession
and the acts the southernershad taken to make them stick?At one
end of the spectrumwas ThaddeusStevens,who maintainedthat the
southernstates had left the Union and been conqueredby the United
States.Under this "conqueredprovinces"theory,the states as political
entities no longer existed and their inhabitantshad the legal statusof
alien enemies,which meant that their propertywas subjectto expropriationby the conqueror.3Almost as radicalwas the theory that secession had destroyedthe states as such,withoutremovingtheirterritory or people from the jurisdictionof the United States.Propounded
81
By mid-April1865,twenty-onelegislatureshadratifiedif one countsVirginia(February
9), Louisiana(February17),Tennessee(April 7), and Arkansas(April 14). 1 USC LXII.(The
Problemsat
Virginialegislaturewas the one sittingin Alexandria.See Randall,Constitutional
397, 461 (cited in note 21).) The other seventeenstates were Illinois,Rhode Island,Michigan,
WestVirginia,Missouri,Maine,Kansas,Massachusetts,
Ohio,
Maryland,New York,Pennsylvania,
Indiana,Nevada,Minnesota,Wisconsin,andVermont.See 1 USC LXII.Connecticutratifiedon
May4,1865,andNew Hampshireon July1,see id,bringingthe totalto twenty-threeor nineteen,
dependingon how one counts.
82 This of courserequiressuppressingmanycomplexities,not the least of whichinvolves
the inconsistencythroughtimeof individuals.
The classic treatment,whichI think has largelystood the test of time but requiressome
modification, is Dunning's. William Archibald Dunning, Essays on the Civil Warand Reconstruc-
tion and RelatedTopics100-12 (Peter Smith1931)(explainingfive majorclassesof theoriesof
the southerntheory,the presidentialtheory,the theoryof forfeitedrights,the
Reconstruction:
theoryof statesuicide,andthe conqueredprovincestheory).Torrentshavepassedunderthe historiographicbridgesinceDunningwrote,but his workon this topicis largelyunaffected.(Theories relatingspecificallyto ArticleV will receiveseparatetreatmentin PartI.B below.)
83 See, for example,CongGlobe,39th Cong,2d Sess 251-53 (Jan3, 1867)(remarksof Rep
Stevens);CongGlobe,40th Cong,1st Sess 545-46 (July9, 1867)(same).In Stevens'sview,Reconstructionand similarmeasurestakenduringthe warwere takenoutsideof the Constitution.
CongGlobe,40th
Examplesincludedthe admissionof WestVirginiaandmilitaryreconstruction.
Cong,2d Sess 2214 (Mar28, 1868) (remarksof Rep Stevens,citing these examples).See also
Dunning,Essayson the CivilWarat 107-09 (cited in note 82) (discussingStevens'sconquered
provincetheory).
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Amendments
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by CharlesSumnerearly in the war,this "territorialstatus"thesis implied that Congress could rule the former states with its Article IV
power over territories,and could admit new states from that territory
if, when, and in the form it chose.4
Although those theories had attractionsfor those who controlled
the nationalgovernment,they laid the Republicansopen to chargesof
gross hypocrisy.Early in the war, both Houses of Congress had endorsed resolutionsexplainingthat the war was not one of conquest or
subjugation,but was to preservethe Union and the Constitution,with
all the rightsof the states and the nationalgovernmentintact.85
Much more popularamong Republicanswas the theory first propounded by RepresentativeSamuel Shellabargerof Ohio in January
1866 and subsequentlyrefined until it achieved the status of boilerAccordingto Shellabarger,secession did not take the states out
plate.86
of the Union; there was still a State of South Carolinawith the same
territoryand largely the same populationit had in October 1860.But
something legally significantdid happen when the people of the seceded states replaced their loyal governmentswith governmentsattached to the Confederacy:they destroyed their earlier governments,
those that had maintainedpolitical relationswith the other states and
84 See Cong Globe, 37th Cong,2d Sess 736-37 (Feb 11, 1862) (Sumner'sresolutions).See
also Dunning,Essayson the CivilWarat 105-07 (cited in note 82) (discussingSumner'sthesis).
Thisapproachwas also called the "statesuicide"theory.Id.
85 McPherson,Rebellionat 286 (cited in note 18) (resolutionsof July22,1861 (House) and
July25,1861 (Senate)).
86 See Cong Globe, 39th Cong, 1st Sess 142-45 (Jan 8, 1866) (remarksof Rep Shellabarger).He beganby rejectingthe thesis that"anyterritorypassedfromunder"the jurisdiction
of the United States,as well as the claim that any state "lostits territorialcharacteror defined
boundaries."Id at 142.As far as he was concerned,both the conqueredprovincesand territorial
statustheorieswere off the table.Rather,the questionwas whetherit was
under our Constitutionpossible to, and the late rebellion did in fact so, overthrowand
Statesthe loyal State governmentsas that,duringsuchusurpausurpin the insurrectionary
tion,such Statesand theirpeople ceased to have any of the rightsor powersof government
as States of this Union;and this loss of the rightsand powersof governmentwas suchthat
the United Statesmay and oughtto assumeand exerciselocal powersof the lost Stategovernments,and may controlthe readmissionof such Statesto theirpowersof governmentin
this Union, subjectto and in accordancewith the obligationto "guarantyto each State a
republicanformof government."
Id. JamesG. Blaine of Maine,then a representative,later Speakerof the House,and in 1884the
Republicancandidatefor President,later describedthe influenceShellabarger'sspeech had on
membersof his party."Otherspeecheshave gainedgreatercelebrity,but it may well be doubted
whetherany speech in the House of Representativesever made a more enduringimpression,or
exertedgreaterconvincingpower,upon the mindsof those to whomit was addressed."JamesG.
Blaine, 2 Twenty Years of Congress: From Lincoln to Garfield 135 (Henry Bill 1886) (recounting
debates over theories of Reconstruction).Accordingto McKitrick,"Shellabarger'stheory ultimately became, in one form or another, the majorityposition on reconstruction."Eric L.
McKitrick,AndrewJohnsonand Reconstruction113 (Chicago1960) (explainingand evaluating
theories).
392
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[68:375
It was as if the people of South Carolina,
the nationalgovernment.87
assembledin convention,had abrogatedall the laws that established
and empoweredthe South Carolinagovernment,and then gone home
to thinkaboutwhatto do next.
WarDemocrats,typified by Andrew Johnson,seem generallyto
have believed that secession and the creation of Confederatestate
governmentshad suspendedthe operationof the states'politicallaws
Like the Republicans,Johnsonwas unwillwithoutabrogatingthem.89
87 Shellabargerarguedthat of coursethe Confederatestate governmentshad no rightto
participatein the United States governmentand then rejectedthe possibilitythat duringthe
courseof the rebellionthe states'politicalpowerswere simplyin "suspendedanimation."Cong
Globe,39th Cong,1st Sess 143 (Jan8, 1866).Rather,the "oldStategovernmentswere so effectuallyoverthrownthat they do not come into force at the end of the warso as to furnishthe basis of republicangovernmentsto these States."Id at 143-44.Almost two years later,by which
time the theoryhadbecomeroutineRepublicandoctrine,SenatorLotMorrillof Mainerepeated
the argument:by rejectingthe ArticleVI oath,the ligamentthat bindsstatesto the Union,the
people of the statesdestroyedtheirstate governments.CongGlobe,40th Cong,2d SessAppendix 111-12(Feb5,1868).
88 Dunningseemsto havehadin mindShellabarger's
thesiswhenhe referredto the theory
thatthe southernstateshadforfeitedtheirrightsin the nationalgovernmentwithouteliminating
themselvesas states.Dunning,Essayson the CivilWarat 109-11(citedin note 82).Althoughthat
is not a bad way of puttingthe point,it can easilylead one to slip into the less plausibletheory
Thatis
thatthe statesas suchhadcommitteda crimeandthe forfeitureworkedas a punishment.
idea as the theoryof destroyedgovernments;thatreminds
one reasonto referto Shellabarger's
us thatthe reasonthe statesno longerhad theirfederalrightswas not a crimebut a politicalact
of theirpeople.
Fromearly 1866 on, Republicansroutinelyreferredand alludedto the destroyedgovernments thesis.See, for example,Cong Globe, 39th Cong,2d Sess 159-60 (Dec 17, 1866) (Sen
id at 1082 (Feb 7, 1867) (Rep Bingham);Cong Globe,40th Cong,2d Sess 4140-44
Trumbull);
(July16,1868)(RepVanHorn).
At least one Republicantook this positionto the extreme,arguingthatthe southernershad
abolishedall their laws,not just their politicallaws,and were living in a state of nature.Cong
Globe,39thCong,2d Sess559-60 (Jan18,1867)(Rep Donnelly).
One Democrat,SenatorSaulsburyof Delaware,got off a good line in responseto the theory:
It is said that thoughit is true thatVirginia,NorthCarolina,SouthCarolina,and Georgia
had Stategovernmentspriorto the late war;somehowor other,duringthe continuanceof
the war,they lost those State governments,have not been able to find them,and mustappeal to Congressto set up Stategovernmentsfor them.
Id at 1448(Feb 16,1867)(Sen Saulsbury).
The destroyedgovernmentsthesiswas also the preferredtheoryof the leadingRepublican
journalof opinion,TheNation,whichendorsedthe idea as early as April 1866and drewwhat
would become the standardRepublicanconclusion,that actingunder the GuaranteeClause
Congresscouldprovidefor the creationof new stategovernmentsbasedon race-blindsuffrage.
2 Nation518 (Apr26,1866).TheNationat the sametimerejectedStevens'sconqueredprovinces
theory,claimingthatit was "almostas unpalatableto the conquerorsas to the conquered,"and
thateven those who believedin it as a legal theorywereunwillingto act on it. Id.See also4 Nation 10 (Jan 3, 1867) (reiteratingdestroyedgovernmentstheory);4 Nation61 (Jan23, 1868)
(same).
89 In his firstStateof the Union
message,Johnsonexplainedthatthe "Statesattemptingto
secede placedthemselvesin a conditionwheretheirvitalitywasimpaired,butnot extinguished;
their functionssuspended,but not destroyed."AndrewJohnson,FirstAnnualMessage,Dec 4,
1865, in Richardson, ed, 6 Messages and Papers of the Presidents at 357 (cited in note 14).
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The Lawfulness of the Reconstruction Amendments
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ing to accept the possibility that the organizationheadquarteredin
Columbia,South Carolina,duringthe war was the governmentof the
State of South Carolina.By definition,they all agreed,the government
of a state is one attachedto the Union and the Constitution,so an organizationthat is not so attachedis not the governmentof a state.One
could tell a Confederate State from a United State by finding out
which oath its officers are required to take.9 Hence there was no
United State governmentof South Carolinaduringthe war.9It was as
if all the state's officershad resignedor perishedin a plague.
3. When the war was over.
As the Confederate armies surrenderedin the spring of 1865, a
few of the Confederate state governmentssought to come back into
the Union more or less intact. Presidents Lincoln and then Johnson
quicklyput paid to that idea, dispersingthe rebel regimes and leaving
seven states with no functioningstate government.9Johnson had his
own plans for restoration,and those plans involved neither the Confederate authoritiesnor a special session of Congress.In his view the
former ConfederateStates fell into two categories:those that already
had loyal state governmentsand those that needed a little help in establishing one. Johnson'sthinking about the first group came out in
90 The terminologyI adopt, under which FrancisPierpontwas Governorof the United
State of Virginiawhile JohnLetcherwas Governorof the ConfederateState of Virginia,places
some strainon the readerby requiringcarefulattentionto the absenceor presenceof the letter
"s".It seems the most naturalnomenclature,however,andI hope it is worththe trouble.
91 RepresentativeAndrewJacksonRogers of New Jersey,who was as Democraticas his
name,was anothersubscriberto the theorythat duringthe war the southernstates remainedin
the Union but had no valid governmentfor purposesof theirfederalrelations.CongGlobe,39th
Cong,2d SessAppendix84-85 (Feb 7,1867).
92 The seven states were North Carolina,SouthCarolina,Georgia,Florida,Alabama,Mississippi,andTexas.See notes 96-100 and accompanyingtext.After some to-ingand fro-ingas to
whetherthe ConfederateVirginialegislaturewouldbe allowedto meet in orderto takeVirginia
out of the war,Lincolnsuppressedthe ConfederateState governmentof Virginia.Ambler,Pierpont at 254-60 (cited in note 17). Explaininghis communicationswith those rebels, Lincoln
pointed out that in suggestinga possible meeting he had referredto "the gentlemenwho had
acted as the Legislatureof Virginia"specifically"on purposeto exclude the assumptionthat I
was recognizingthem as a rightfulbody."AbrahamLincoln,telegramto MajorGeneralWeitzel,
Apr 12,1865, in Edward McPherson, The Political History of the United States of America During
the Periodof Reconstruction
26 (Philp& Solomons1871) (internalquotationsomitted).
PresidentJohnsonrepudiateda surrenderagreementin whichGeneralShermansuggested
that North Carolina'srebel legislaturecould returnto loyaltyby takingthe ArticleVI oath.See
W.T.Shermanand J.E.Johnston,memorandum,Apr 18, 1865,in McPherson,Reconstructionat
121-22 (agreement);EdwinM. Stanton,dispatch,Apr 22, 1865,in McPherson,Reconstruction
at
122 (Johnson'sdisapproval).In May 1865,whenthe ConfederateGovernorof Mississippisought
to call the legislatureso that it could summona reconstructionconvention,PresidentJohnson
orderedthe militaryto "prevent,by force if necessary,any attemptof any of the legislaturesof
the Statesin insurrectionto assemblefor legislativepurposes,and [to] imprisonany membersor
otherpersonswho may attemptto exercisethese functionsin oppositionto your orders."E.R.S.
at 19.
Canby,telegram,May21,1865,in McPherson,Reconstruction
394
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[68:375
his Executive Orderof May 9, 1865,respectingVirginia.Most of the
orderwas concernedwith the reestablishmentof federalcivil authority.93
Havingdealt with the ordinaryoperationsof the federalgovernment withina state,Johnson'sorderturnedto the state governmentof
Virginia.Johnson'sposition was clear. FrancisPierpont was Governor.9Johnsondid not purportto appointPierpontto office;rather,he
stated that as far as the federalexecutivewas concerned,Pierpontwas
the Governorand wouldbe given the assistanceto whicha Governor
was entitled.95
Seven seceded states had neithera spontaneouslyformedloyalist
governmentlike Pierpont'snor a governmentformed in responseto
Lincoln's invitation of December 1863.9 Johnson made known his
proposalfor restoringthem to their former status in two proclama93 See Andrew Johnson, Executive Order, May 9, 1865, in Richardson, ed, 6 Messages and
Papers of the Presidents at 337-38 (cited in note 14) (directing various cabinet officers to reestablish control over Virginia). The order also swept aside the claim of the Confederate Virginia government to continue. Its Governors had been John Letcher and William Smith;Johnson put them
in bad company.
All persons who shall exercise, claim, pretend, or attempt to exercise any political, military,
or civil power, authority,jurisdiction, or right by, through, or under Jefferson Davis, late of
the city of Richmond, and his confederates, or under John Letcher or William Smith and
their confederates, or under any pretended political, military,or civil commission or authority issued by them or either of them since the 17th day of April, 1861, shall be deemed and
taken as in rebellion against the United States, and shall be dealt with accordingly.
Id at 337.
94 Johnson proclaimed
[t]hat to carry into effect the guaranty by the Federal Constitution of a republican form of
State government and afford the advantage and security of domestic laws, as well as to
complete the reestablishment of the authority and laws of the United States and the full
and complete restoration of peace within the limits aforesaid, Francis H. Peirpont, governor
of the State of Virginia, will be aided by the Federal Government so far as may be necessary in the lawful measures which he may take for the extension and administration of the
State government throughout the geographical limits of said State.
Id at 338.
95 Id. Pierpont arrived in Richmond from Alexandria on May 26, 1865, in a captured
blockade runner provided by the Navy. Ambler, Pierpont at 262-63 (cited in note 17). Once he
and his administration were in place, they set about turning their rump into a genuine government of Virginia. As far as Pierpont was concerned, Virginia was already a free state, because a
constitutional convention meeting at Alexandria in 1864 had adopted a new constitution that
abolished slavery. See Va Const of 1864 Art IV, ?? 19-21 (superseded 1870) (prohibiting slavery
and involuntary servitude). The 1864 document provided for adult white male suffrage, subject to
a test oath that excluded those who had voluntarily served the Confederacy after January 1,
1864. Id Art III, ? 1. The legislature was empowered to provide for the restoration of the franchise to the disqualified. Id. Pierpont called a special session of the Alexandria legislature in June
1865, which removed the disqualification and provided for fall elections for the state legislature
and Congress. See Ambler, Pierpont at 274. See also 1865 Va Acts ch vi (extra session of June 19)
(removing disqualifications); id ch viii (providing for elections).
96 They were North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, and
Texas. See text accompanying notes 98-100 (noting that President Johnson authorized provisional governors for these states).
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tions of May 29,1865.The first offered a pardonto most formerrebels,
provided they would take an oath to support the Constitution and
The second set in motion a plan to reconstructNorth
emancipation.97
Carolina,a plan that was then used as a blueprintfor the other six
states.
Johnson began with the appointmentof a provisionalGovernor,
William Holden, for North Carolina.Holden was then authorizedto
convene a conventionto be chosen by the loyal people of North Carolina, a convention
for the purpose of alteringor amendingthe constitutionthereof,
and with authorityto exercise within the limits of said State all
the powers necessary and proper to enable such loyal people of
the State of North Carolinato restore said State to its constitutional relationsto the Federal Governmentand to present such a
republicanform of State governmentas will entitle the State to
the guarantyof the United States therefor and its people to protection by the United States against invasion, insurrection,and
domesticviolence.98
Then came the kicker:the Presidentdecided who was loyal, prescribing suffragequalificationsfor electing the convention.99
In due course similar proclamationswere issued for Mississippi
on June 13, Georgia andTexason June 17,Alabamaon June 21, South
Carolina on June 30, and finally Florida on July 13.10?
Pursuant to
Johnson's proclamations,the provisional governors organized elec97 To qualify,a formerrebel had to swearor affirm"thatI will henceforthfaithfullysupport, protect, and defend the Constitutionof the United States and the Union of the States
thereunder,and that I will in like mannerabideby and faithfullysupportall laws andproclamations whichhave been made duringthe existingrebellionwith referenceto the emancipationof
slaves."AndrewJohnson,Proclamation,May 29,1865, in Richardson,ed, 6 Messagesand Papers
of thePresidentsat 310-11 (citedin note 14).
Not all ex-Confederateswere entitledto the blanketpardonJohnsonoffered.His proclamation excluded various categories of Confederateleaders,such as those who had specially offended the United States by, for example,raidingUnion commerce,and ownersof more than
$20,000worthof propertywho voluntarilyaided the rebellion.Id at 311-12. Formerrebels excludedfromthe offer had to applyfor personalpardons.Id at 312.
98 Idat313.
99 The Proclamationincludedthe followingprovision:
[I]nany election that may be hereafterheld for choosingdelegatesto any Stateconvention
as aforesaidno person shall be qualifiedas an elector or shall be eligible as a memberof
such conventionunlesshe shall have previouslytaken and subscribedthe oath of amnesty
as set forthin the President'sproclamationof May29,A.D. 1865,andis a voter qualifiedas
prescribedby the constitutionandlaws of the State of NorthCarolinain force immediately
before the 20th day of May,A.D. 1861,the date of the so-calledordinanceof secession.
Id at 313.
100 Id at 314-16 (Mississippi);id at 318-20 (Georgia);id at 321-23 (Texas);id at 323-25
(Alabama);id at 326-28 (SouthCarolina);id at 329-31 (Florida).
396
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tions for conventions.Six met in 1865,while Texas'sconventiondid
not organizeuntil March1866.101
Threeleadingissues came before the
conventions:secession itself,the abolitionof slavery,and the Confederate war debt.
The six conventionsthat met in 1865 complied with what they
perceivedas northerndemandswith varyingdegrees of contumacy.02
All rejectedsecession,althoughnot necessarilyin termscalculatedto
All legislatedagainstslaveryin one way or
please Union sentiment.13
once
another,although
again not always with much grace.'1 All but
Mississippi'sand South Carolina'srepudiatedthe rebel war debt.105
Only North Carolina'sconventionsubmittedany of its actionsto the
people for ratification;North Carolinavoters approvedthe repudiation of secessionand the abolitionof slavery.'06
During their deliberationsthe conventionsreceived some guidance from the Executive in Washington.Mississippi'swas the first to
meet, and as it was organizingthe PresidenttelegraphedProvisional
Governor Sharkey expressinghis hope that the convention would
Next wasAlaabolishslaveryand ratifythe ThirteenthAmendment.'07
with
convention
where
the
bama,
promptlycomplied
everythingit
turned
out
to be a litthoughtthe Presidentwanted.1'South Carolina
tle tone deaf,repealingratherthan declaringnull its ordinanceof seNorth Carolina's
cession and doing nothing about the rebel debt.109
101 See McPherson,Reconstructionat 18-28 (cited in note 92) (givingchronologicalaccountsof actionsof the variousconventionsand legislatures).Mississippi'sconventionassembled on August14,Alabama'son September12,SouthCarolina'son September13,NorthCarolina'son October2, Florida'sandGeorgia'son October25.Id.
102 See John W. Burgess, Reconstruction and the Constitution, 1866-1876 38-39 (Scribner's
at 18-28 (cited in note 92)
1911) (summarizingstate responses);McPherson,Reconstruction
(same).
103 SouthCarolina'sconvention,for example,repealedits predecessor'sordinanceof secesat 22 (citedin note 92). NorthCarolina's
sion as if it had been valid.McPherson,Reconstruction
wasmoreconciliatory,
declaringthe ordinance"nullandvoid."Id at 18.
104 See id at 18-28 (describingthe actionsof the conventionsand legislatureswithrespect
to slavery).Georgia'sconvention,for example,explainedthatslaverywasabolishedbecausethe
Governmentof the United Stateshad freed the slaves as a warmeasureand had carriedthat
planinto effect.Id at 20.
105 Id at 18-28.
106 Poore, ed, 2 The Federal and State Constitutions at 1419 (cited in note 64) (reprinting or-
dinance);McPherson,Reconstructionat 19 (cited in note 92) (listingNovember9 as date of
popularapprovalof ordinances).
107 McKitrick,
Andrew Johnson at 166(citedin note 86).
108 Id at 166-67.
109 Id at 167 (discussingthe obstinateattitudeof the SouthCarolinaconventionandprovisionalgovernor).One shouldjudgethe SouthCarolinaconvention'sactionby appropriatelocal
and the first-roundgovernments,Dan
standards.In his penetratingstudyof self-reconstruction
Carterexplainsthatthe conventionswerenot mainlycomposedof ardentsecessionists:
southernvoters chose cautiousand conservativepost-warleaderswho
Overwhelmingly,
had opposed secession until the movementfor southernindependencewas an accomplishedfact.The clearestevidenceof this predilectionfor antebellumsouthernunionists
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Amendments
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convention met shortly after South Carolina's,and when it showed
signs of waveringon the repudiationquestion,PresidentJohnsoncabled Provisional Governor Holden that "[e]very dollar"of the rebel
debt "should be repudiatedfinally and forever,"and it was.'' Georgia's convention also balked on the Confederate war debt and was
given some candid advice about the President'sviews:SecretarySeward cabled ProvisionalGovernor Johnsonthat the President"cannot
recognize the people of any State as having resumed the relations of
loyalty to the Union that admits as legal, obligations contracted or
debts created in their name, to promote the war of the rebellion."111
That did the trick.l12Sixth and last in 1865,Florida'sconventiondid all
that was called for.13
In additionto modifyingtheir state constitutions,the conventions
needed to get their ordinary governments going again. That meant
elections for state offices and representativesin Congress.By the end
of November all six Johnsonstates that held conventionsin 1865 had
also conducted those elections.11When the new legislaturesmet, high
on their agenda was the proposed constitutional amendment.Five
ratified, beginning with South Carolina on November 13."' South
Carolina acted in the shadow of an exchange of telegrams between
Provisional Governor Perry and the Executive in which Secretary
Seward had stated that the President regardedratificationas "indispensable to a restorationof [SouthCarolina's]relationswith the other
States of the Union."'16
Alabama ratifiedon December 2, North Carocan be seen in the backgroundof those 1865conventiondelegateswho had also servedin
theirstate'ssecessionconvention.
Dan T. Carter,Whenthe WarWas Over:The Failureof Self-Reconstruction
in the South,18651867 65 (LSU 1985). Carter discusses the moderates from North Carolina,Mississippi,and
Georgiaandthen comes to the PalmettoState.Id."Evenin SouthCarolina,wheresecessionhad
been the overwhelmingchoice of the people, fifteen of the twentypostwardelegates who had
servedin the 1860secessionconventionhad opposedtheirstate'sseparationfromthe Union until afterLincoln'selection.By SouthCarolinastandards,this wasunionism."Id.
110 McKitrick,
AndrewJohnsonat 168 (cited in note 86).
111 McPherson,Reconstructionat 21 (cited in note 92) (providingchronologyof actionsof
the Georgiaconvention).
112
McKitrick,AndrewJohnsonat 168 (cited in note 86).
113
McPherson,Reconstructionat 24 (cited in note 92) (providingchronologyof actionsof
the Floridaconvention);McKitrick,AndrewJohnsonat 168 (cited in note 86) (notingthat at the
Florida convention "everythingwent off without a hitch").Despite Johnson'sinterventions,
McKitrickconcludesthat "[a]llhad been, in the last analysis,voluntary."Id (Floridawas last in
1865becauseTexas'sconventiondid not meet until 1866.).
114 McPherson,Reconstruction
at 18-28 (cited in note 92) (givingchronologiesof the actions of the conventionsand legislaturesof the formerConfederateStates).
115 Id at 23.
116 William H.
Seward, telegram to Provisional Governor B.F. Perry,Nov 6, 1865, in
McPherson,Reconstructionat 23 (cited in note 92). Apparentlythe South Caroliniansstill did
not quite get it;theirresolutionof ratificationincludeda clausestatingthatthe amendmentgave
Congressno powerto legislateas to the civil or politicalrightsof the freedslaves.Id.
The Universityof ChicagoLaw Review
398
[68:375
lina on December4, Georgiaon December6, and Floridaon December 28.'17Mississippi's legislature did not ratify.11
SecretarySewardhad not only been sending telegrams,he had
been counting.He counted thirty-sixstates in all, thus rejectingthe
possibilitythat any had left the Union or been destroyed.WithGeorgia's action on December 6, he countedtwenty-sevenratifications.So
on December 18, 1865,in keepingwith a duty imposedon the Secretaryof State by a statutefrom 1818,he issued a certificatestatingthat
Congresshad proposed a constitutionalamendmentby the requisite
two-thirdsvote, that twenty-sevenstates had ratified,that the whole
numberof states in the Union was thirty-six,that twenty-sevenwas
the requisite three-fourthsmajority,and that the amendment had
"be[come]valid,to all intents and purposes,as a partof the Constitution of the United States.""19
While the southernstate legislatureswere engaged in this process, the nationallegislatorswere preparingfor the session that would
open on December4, 1865,the firstmeetingof the full Congressafter
nine eventfulmonths.120
Senators-andrepresentatives-electwouldpresent themselves from almost all the southern states, and the great
question was whether they would be seated.12'Before Congress
opened, the Republicanleadershipof House and Senate concerteda
A Joint Committee
procedureto deal with the southernclaimants.'22
117
1 USC LXII.AlabamaandFloridajoinedSouthCarolinain expressinga limitedviewof
at 21
congressionalpowerover the statusof the freed people.See McPherson,Reconstruction
(cited in note 92) (Alabamadenied congressionalpower to legislateon the politicalstatusof
freedmen.);id at 24-25 (Floridadid the same.).SecretarySewardhad advisedthe Provisional
Governorof Floridathatthe Presidentregardedratificationas indispensableto Florida'srestorationto her truelegal relationswiththe otherstates.Id at 25 (reproducingcorrespondence).
118 Id at 20.
119 WilliamH. Seward,Certificateof the Anti-SlaveryAmendment,known as the 13th
at 6 (cited in note 92). Althoughthe
Amendment,Dec 18, 1865,in McPherson,Reconstruction
lateststate on Seward'slist was Georgia,whichratifiedon December6, by the date of his proclamationOregonhad also ratified.Californiaratifiedon December19, Floridadid so on December28, Iowa on January15, 1866,and New Jersey(wherethe legislaturehad voted down
ratificationon March16, 1865) on January23, 1866.Texas,where reconstructionwas an even
dicieraffairthanelsewhere,ratifiedon February18, 1870.See 1 USC LXII(listingratifications).
120 See
CongGlobe,39thCong,1stSess 1 (Dec 4,1865) (openingthe session).
121 The personalhistoriesof the southernclaimantsvariedwidely.At one end of the specHoraceMaynardof Tennessee,an impeccableunionistwho had
trumwas Representative-elect
sat in the Thirty-fifth,
Thirty-sixth,and Thirty-seventhCongresses.See Dumas Malone,ed, 12
Dictionaryof AmericanBiography460-61 (Scribner's1933)(reviewingMaynard'spoliticalcareer).At the otherend wasa senator-electfromGeorgia:AlexanderH. Stephens,lastheardfrom
at 107as Vice Presidentof the ConfederateStatesof America.See McPherson,Reconstruction
09 (cited in note 92) (listingthe southernclaimantsand the Confederatecredentialsof those
whohad them).
122 Kendrickgave an accountof the plan'sgenesisthatmadeit seem a Machiavellian
stroke
ThaddeusStevens.
put over on unsuspectingconservativeRepublicansby the arch-manipulator,
See Benj. B. Kendrick, The Journal of the Joint Committee of Fifteen on Reconstruction: 39th
Congress,1865-1867139-41(Columbia1914).McKitrickis less impressedby the conspiracythe-
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TheLawfulnessof the ReconstructionAmendments
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on Reconstructionwould be formed, and all credentialspresentedby
senators- and representatives-electfrom the seceded states would be
referredto it withoutfurtherdebate.12Houseand Senate agreedto act
jointly;no southernerwould be seated by either body until the Joint
Committeehad reportedand its reporthad been acted on.24
This decisioh led to a memorablescene when the House of Representativesconvened on December 4. Edward McPherson,Clerk of
the House for the Thirty-eighthCongress,began to read the roll, omitting representatives-electfrom the southernstates.'5WhenMcPherson
came to the letter "M"and did not call Horace Maynardof Tennessee,
Maynardrose and demanded to know whether the Clerk would call
his name.26McPhersonrespondedthat he could not recognize anyone
whose name was not on the roll (which he had made himself), and
Representative-electJamesBrooks,a prominentDemocrat from New
York,objected vigorouslylest the House proceed on any "revolutionBut the roll call continued without the southerners,and
ary step."127
Schuyler Colfax of Indiana was elected Speaker.128
Shortly after Colfax's acceptancespeech, Stevens offered a joint resolutioncreatingthe
ory, arguingthat somethinglike creationof the Joint Committeewas a routine decision that
couldjust as easily have been proposedby almostany Republicanrepresentativeas by Stevens.
See McKitrick,AndrewJohnsonat 259 (cited in note 86).
The Republicanswere able to make theirplanswithconfidencebecauseof a crucialpolitical
fact:theirpartyheld an absolutemajorityof both houses of Congress,even if all the states were
counted.See CongressionalQuarterly'sGuideto CongressAppendix94-A (CongQ 4th ed 1991)
(giving political party affiliationsin Congress,1789-1991).It was thereforeimpossiblefor the
northernDemocratsto combinewith the southernersand claim to organizethe House or Senate, becausethey wouldhave been unableto mustera quorum.See US ConstArt I, ? 5, cl 1 ("a
Majorityof each [house]shallconstitutea Quorumto do Business").
123 See McKitrick,
AndrewJohnsonat 258-59 (citedin note 86) (reproducingpartof a joint
resolutionintroducedby Rep Stevensto establishthe committee).
124 See
CongGlobe,39th Cong,1st Sess 6 (Dec 4,1865) (approvalof the resolution).
125 By its own traditionthe House of Representativesis not continuous;every two years it
is created anew,like the phoenix rising from its ashes.A more apt metaphorin this context
wouldbe that at the beginningof everycongressionaltermthe House is reducedto a state of nature.It has no rules,no Speaker,and indeedno fixed membership,becausethe elections,qualifications,and returnsof its membersare to be decidedby the House itself.In orderto bootstrap
the House into existenceat its firstsittingof every term,the federalstatuteshave long provided
that at the time set for the beginningof the firstsessionof every termthe Clerkof the House of
Representativesfromthe priortermis to call the roll of those who have presentedcredentialsas
See Act of March3,1863, ch CVIII,12 Stat804.
representatives-elect.
126 CongGlobe,39th Cong,1st Sess 3 (Dec 4,1865).
127 Id.
128
Id at 5. No such theatricstook place in the Senate,whichby traditionconsidersitself a
continuousbody.Moreover,the first meeting of the Senate of the Thirty-ninthCongresshad
taken place already,in the special sessionin March1865that sat to confirmPresidentLincoln's
new nominees.See Cong Globe,38th Cong,2d Sess 1424-25 (Mar4,1865) (conveningof a special sessionof the Senate).So the Senatealreadyhad a fixed membershipanda presidingofficer,
and could meet and considerthe credentialsof new senators-elect.See Cong Globe,39th Cong,
1st Sess 1-3 (Dec 4,1865) (meetingof Senate).
400
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[68:375
Joint Committee,whichwas promptlypassed withoutdebate undera
suspensionof the rules.29
Shortlyafter this excitementthe House turnedto the readingof
PresidentJohnson'sfirstState of the Union message,the openingline
of which might have been mere rhetoric under any other circumstances:"To express gratitudeto God in the name of the people for
the preservationof the United States is my first duty in addressing
you."'0Johnsonwent on to set out his theory of a Union and states
alike indissoluble,and to explain what he had done in the preceding
months.''He had found the seceded states"in a conditionwhere their
vitalitywas impaired,but not extinguished;theirfunctionssuspended,
In response,he had put the federalgovernment's
but not destroyed.""'3
back
into operation and through his provisional
machinerylargely
governorshelped the states put themselvesback into operation.'3After describinghow much the abolition amendmentwould help the
country,he indicatedthat Congresscould do its partto encouragethe
healingof the rift of slavery:
The amendmentto the Constitutionbeing adopted,it would remain for the Stateswhose powershave been so long in abeyance
to resumetheirplaces in the two branchesof the NationalLegislature,and thereby complete the work of restoration.Here it is
for you, fellow-citizensof the Senate,and for you, fellow-citizens
of the House of Representatives,to judge,each of you for yourselves, of the elections,returns,and qualificationsof your own
members.TM
Theirjudgmentwas that they were going to think about it, and
the first session of the Thirty-ninthCongresshad a lot to think about.
Probablythe most importantissue for practicalpurposeswas a classic
example of the principleof unintendedconsequences.By freeing the
slaves,the Union had made the South politicallymore powerful.As
free people the formerslaveswouldcount as whole personsfor appor129
Cong Globe, 39th Cong, 1st Sess 6 (Dec 4, 1865). As Kendrick pointed out, the resolution as Stevens formulated it seemed almost calculated to offend the President;joint resolutions
are legislative actions under Article I, ? 7, and as such are presented to the President for signature or veto. Kendrick,Journal of the Joint Committee at 143-44 (cited in note 122). The Senate's
version was a concurrent resolution, the kind of action that governs internal congressional affairs
and is not presented to the President, and that is the version in which it eventually passed both
Houses. See id (noting that it was fortunate that the Senate, unlike the House, passed the resolution in concurrent, rather than joint form, because this avoided offending the President).
130 Andrew Johnson, First Annual Message, Dec 4, 1865, in Richardson, ed, 6 Messages and
Papers of the Presidents at 353 (cited in note 14).
131 Id at 353-58.
132 Id at 357.
133 Id.
134 Id at 358.
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tionment, not as three-fifths.35
They remained disenfranchised,howso
rather
than
a
voice
of their own they amplifiedthat of
ever,
having
their formermasters.If nothingwere done about this,the Constitution
would substantiallyincrease the power in the federal governmentof
southernwhites,most of whom the Republicansregardedas traitors.36
What to do about the politicalrightsof those traitorswas another
question. So was the legal status of the freed slaves, which the new
southern legislaturesoften treated harshly.Those legislaturespassed
the infamousBlack Codes, adopted in 1865 and 1866.Provisionsthat,
for example,limited the capacityof blacksto own real propertyand to
testify in court infuriatedRepublicans.'37
The intricateworkingsof Congresson these issues in the winter
and spring of 1865 to 1866 has been gone over many times and a detailed account is not necessaryhere.138
The importantpoint is that the
Joint Committee on Reconstruction,after a few false starts,produced
a proposed constitutionalamendment,a report setting out its theory
of reconstruction,and a bill that linked the two. The amendment,
which with two alterationsbecame the Fourteenth,sought a comprehensive solution to the problemsthe Republicansthoughtthe country
faced.139
135 The Constitutionmandates:
Representativesand directTaxesshallbe apportionedamongthe severalStateswhichmay
be includedwithin this Union, accordingto their respectiveNumbers,which shall be determinedby addingto the whole Numberof free Persons,includingthose boundto Service
for a Termof Years,and excludingIndiansnot taxed,threefifthsof all otherPersons.
US ConstArt I, ? 2, cl 3.Thisaffectednot only the House,but also the ElectoralCollege,because
every state has as manyelectorsas it has senatorsandrepresentativescombined.See id Art II, ?
1,cl 2.
136 Eric Foner, Reconstruction:America's Unfinished Revolution, 1863-1877 251-52
(Harper
& Row 1988).Fonerdescribesone Republicanparadeof horribles,whichincludedthe election
of RobertE. Lee as Presidentin 1868.Id at 252.
137 Fairmansummarizesthe timingand contentof the Codes.CharlesFairman,6
Historyof
the Supreme Court of the United States: Reconstruction and Reunion, 1864-88, Part One 110-15
(Macmillan 1971). McPherson provided extensive excerpts from every state's legislation.
McPherson,Reconstructionat 29-44 (cited in note 92). Carteroffersan insightfulaccountof the
social and political factorsthat led to the Codes.Carter,Whenthe WarWas Over at 176-231
(cited in note 109).As to the politicaldisasterfor the South that resultedfrom the Codes and
similarbehavior,Carterpoints out that "[b]yJanuaryof 1866,Republicannotions of southern
perfidyand politicalunreliabilitywere firmlyestablished."Id at 232.
138 For the historianof constitutionallaw, the most useful contemporarywork is Earl M.
Maltz, Civil Rights, the Constitution, and Congress, 1863-1869 (Kansas 1990). Maltz's account of
the maneuveringsin draftingthe FourteenthAmendment,id at 79-92, is especiallyilluminating.
139 Section 1 was aimedat the Black Codes.See McPherson,Reconstruction
at 103 (cited in
note 92) (reproducingamendmentproposedin the House,Apr 30, 1866).Section2 was a clever
solutionto the problemof the enhancedSlave Power,givingstates with large blackpopulations
a choice between enfranchisingthe freed slaves and losing representationin the House and the
ElectoralCollege.Id. Section3 as proposedby the JointCommitteewas a fairlyharshdisenfranchisement aimed at ex-Confederates.It providedthat "[u]ntilthe 4th day of July,in the year
1870,all personswho voluntarilyadheredto the late insurrection,givingit aid and comfort,shall
402
The Universityof Chicago Law Review
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The report of the Joint Committee's majority maintained that the
ex-Confederate States were not entitled to representation and that the
amendment represented the terms on which it would be safe to readmit them. It relied heavily on Shellabarger's thinking.Those states, the
report argued, had destroyed their former constitutions and were
without civil government.1?Their recent attempts to establish new
constitutions were at best doubtful under established American principles of constitution-making.141 Worst of all, the new governments,
with the possible exception of Tennessee's, were dominated by traitors
and in truth were the rebellion carried on by other means.42And while
President Johnson may have concluded that the new governments
were lawful and loyal, his view could not bind Congress.'14The Committee concludedthat the former ConfederateStates were not entitled to representationand that before they could be readmitted,"adequate securityfor futurepeace and safety should be required,"security consisting of the Committee'sproposed constitutionalamendment.'4
be excluded from the right to vote for representatives in Congress and for electors for President
and Vice-President of the United States."Id. As finally proposed by Congress it was substantially
milder, forbidding office holding by anyone who had once taken the Article VI oath and then
served the Confederacy. See Cong Globe, 39th Cong, 1st Sess 3146 (June 13, 1866) (describing
the categories of people precluded from holding certain elected offices). Section 4 dealt with the
hot-button issue of the Union and Confederate debts, and Section 5 gave Congress enforcement
power. McPherson, Reconstruction at 103.
140
Through rebellion "they destroyed their State constitutions in respect to the vital principle which connected their respective States with the Union and secured their federal relations;
and nothing of those constitutions was left of which the United States were bound to take notice." Majority Report of the Joint Committee on Reconstruction, June 18, 1866, in McPherson,
Reconstruction at 85 (cited in note 92). Thus the state conventions were wrong if they acted
against the background of pre-existing state constitutions; those had been "repudiated and overthrown."Id at 89.
14
'"No State constitution, or amendment to a State constitution, has had the sanction of
the people. All the so-called legislation of State conventions and legislatures has been had under
military dictation." Id at 93.
142 "The
question before Congress is... whether conquered rebels may change their theatre
of operations from the battle-field, where they were defeated and overthrown, to the halls of
Congress, and, through their representatives, seize upon the Government which they fought to
destroy."Id at 93. As for whether they were really rebels
[t]he character of the conventions and legislatures thus assembled was not such as to inspire
confidence in the good faith of their members.... There is no evidence of the loyalty or disloyalty of the members of those conventions and legislatures except the fact of pardons being asked for on their account.
Id at 89. Again, Tennessee may have been different. See, for example, id at 92 ("The State of Tennessee occupies a position distinct from all the other insurrectionary States.").
143 "The
powers of conqueror are not so vested in the President that he can fix and regulate
the terms of settlement and confer congressional representation on conquered rebels and traitors."Id at 93.
144 Id.
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A minorityreport by the three Democrats on the Joint Committee claimed that the states were alreadyentitled to representation.A
state could neither leave the Union nor,throughthe crimesof some of
its citizens,forfeit its rightsunderthe Constitution.145
Duringthe rebelin
their
the
state
laws
had
been
lion,
suspended
practicaloperation,
but were revived once the rebellion was suppressed.46The restored
state governmentswere republicanin form, and any irregularitiesin
their restorationwere no concern of Congress:all that mattered was
that the people of the states were satisfiedwith what had been done in
their name.'47
In particular,it did not matter whether what President
Johnsonhad done was lawful or not, and indeed the argumentthat he
had no businessinterferingwith state constitutionalprocesses applied
just as well to Congress as to the President.4What counted was that
the states had republican governments that their people accepted.
Loyal individualselected to the Senate and the House under the auspices of those governmentswere entitled to their seats.149
145 MinorityReport of the Joint Committeeon Reconstruction,June 22, 1866,in McPherson, Reconstructionat 94-95 (cited in note 92). "Tested,therefore,either by the natureof our
Governmentor by the termsof the Constitution,the insurrection,now happilyand utterlysuppressed,has in no respectchangedthe relationsof the States,where it prevailed,to the General
Government."Id at 95.
146 See id at 95-96 (citing decisions of the United States SupremeCourt and a United
Statesdistrictcourtto supportthis argument).
147 The
minorityreportexplained:
It is not pretendedthat the existinggovernmentsof the Statesin questionare not of the requiredform.The objectionis that they were not legally established.But it is confidently
submittedthat that is a matterwith whichCongresshas nothingto do.The powerto establish or modifya Stategovernmentbelongsexclusivelyto the people of the State.Whenthey
shall exerciseit, how they shall exerciseit, whatprovisionsit shall contain,it is theirexclusive rightto decide,and when decided,theirdecisionis obligatoryupon everybody,and independentof all congressionalcontrol,if suchgovernmentbe republican.
Id at 97.
148 The minorityreportcontinued:
If it be said that the Presidentdid illegally interferein the organizationof such governments,the answersare obvious:First.If it was true,if the people of such States not only
have not, but do not, complainof it, but, on the contrary,have pursuedhis advice,and are
satisfiedwith and are living underthe governmentsthey have adopted,and those governments are republicanin form,whatrighthas Congressto interfereor deny theirlegal existence.Second.Conceding,for argument'ssake,thatthe President'sallegedinterferencewas
unauthorized,does it not, and for the same reason,follow that any like interferenceby
Congresswouldbe equallyunauthorized?A differentview is not to be maintainedbecause
of the differencein the natureof the powersconferredupon Congressand the President,
the one being legislative and the other executive;for it is equally,and upon the same
ground,beyondthe scope of eitherto forma governmentfor a people of a Stateonce in the
Union, or to expel sucha Statefromthe Union,or to deny,temporarilyor permanently,the
rightswhichbelong to a State and her people underthe Constitution.
Id.
149 Id
(The states must not be denied "the rightof havinga voice in the legislativedepartment.").
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Along with the report and the amendment was a bill setting out
the terms of readmission. Southern states were to ratify the amendment and bring their laws into compliance with it. When the amendment had become part of the Constitution, their senators and representatives would be eligible to be considered on their individual merits.50This proposal was not adopted by the first session of the Thirtyninth Congress.'5
The Fourteenth Amendment passed Congress on June 13, 1866.'5
One ex-Confederate State promptly accepted the offer. Tennessee,
with a Republican legislature, ratified on July 19, 1866.'3 Even more
promptly, Congress provided by joint resolution that "Tennessee is
hereby restored to her former proper, practical relations to the Union,
and is again entitled to be represented by senators and representatives
in Congress."'" President Johnson, in an early example of a presidential signing statement, gave the legislation his signature, but sent the
House of Representatives a message explaining that in his view Tennessee had been entitled to representation well before the resolution
passed.ls
Tennessee had a lot of company in ratifying, but none of it was in
the South.156
Southerners were encouraged in resisting the amendment
President
Johnson, who participated vigorously in the off-year
by
150 Bill
reported in the House (Apr 30, 1866), in McPherson, Reconstruction at 103-04
(cited in note 92).
151 See Cong Globe, 39th Cong, 1st Sess 2286-87 (Apr 30,1866) (tabling both the resolution
for an amendment and the readmission); id at 2530-45 (May 10, 1866) (adopting the resolution
but not passing the bill).
152 See id at 3148-49
(June 13,1866) (reporting vote and passage).
153 1 USC LXIII
(listing ratifications).
154 JR 73
(July 24, 1866), 14 Stat 364.
155 President Johnson
registered his objections to the congressional reconstruction plan:
Earnestly desiring to remove every cause of further delay, whether real or imaginary,on the
part of Congress to the admission to seats of loyal Senators and Representatives from the
State of Tennessee, I have, notwithstanding the anomalous character of this proceeding, affixed my signature to the resolution. My approval, however, is not to be construed as an acknowledgment of the right of Congress to pass laws preliminary to the admission of duly
qualified Representatives from any of the States.
Andrew Johnson, Special Message to the House of Representatives (July 24, 1866), in Richardson, ed, 6 Messages and Papers of the Presidents at 397 (cited in note 14). Once again, Johnson
disclaimed any power to interfere with the duty of each house of Congress, acting separately, to
judge the elections, returns, and qualifications of individual claimants to seats. Id. But he reiterated the view that there was nothing wrong with the southern states as such, and that they were
entitled to representation "when they present themselves in the persons of loyal Senators and
Representatives who can comply with all the requirements of the Constitution and the laws."Id.
156 Six states, including Tennessee, ratified in 1866: Connecticut (June 25), New Hampshire
(July 6), Tennessee (July 19), New Jersey (September 11), Oregon (September 19), and Vermont
(October 30). 1 USC LXIII. McKitrick lists the dates on which the ten other ex-Confederate
States voted down ratification. See McKitrick, Andrew Johnson at 358 n 54 (cited in note 86).
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campaigning,denouncingCongressfor extremismin reconstruction.'5
When the voters went to the polls,the Democrats,whom Johnsonhad
in effect supported, got their clock cleaned. The Fortieth Congress
would have crushingRepublicanmajorities.15
Before the new Congress convened, however, the Thirty-ninth
Congresswould meet for its lame duck session startingin December
1866. After much debate and intricate parliamentaryinfighting,that
session passed the first Military ReconstructionAct over Johnson's
Due to last minute maneuveringthe Act sought to deal with
veto.159
two distinct but related problems:the failure of the first-roundregimes to provide adequate protection to freed people and Unionists,
and the need to replace the first-roundgovernmentswith more regularly establishedregimesthat would rest on race-blindloyal suffrage.l60
The Act began by announcingthat "no legal State governments
or adequate protection for life or property now exists" in the ten
states not represented in Congress,and that it was necessary "that
peace and good order should be enforcedin said States until loyal and
The first
republicanState governmentscan be legally established."'61
step was militarygovernment.The South was dividedinto five military
districts,each to have a commander,whose duty it would be "to protect all persons in their rights of person and property,to suppressinsurrection,disorder,and violence, and to punish,or cause to be punTo that end
ished, all disturbersof the public peace and criminals."'62
the commandercould allow the local tribunalsto take jurisdictionand
punish offenders or could "organizemilitarycommissionsor tribunals
for that purpose, and all interference under color of State authority
with the exercise of militaryauthorityunder this act shall be null and
void."'63
That is, no habeas corpus relief was to be grantedby the state
courts.164
157
See Randall and Donald, The Civil War and Reconstruction at 589-91 (cited in note 40)
(recountingthe election campaignof 1866).The best known episode was his speakingtour in
Augustand September,the "swingaroundthe circle"of large cities,in whichJohnsonrailedon
his opponentsin intemperatetermsand tradedinsultswith criticsin the crowd.Id at 589 (internal quotationsomitted).
158 Not countingex-ConfederateStatesother thanTennessee,the Senatewouldhave
fortyfive Republicansand nine Democrats,althoughaccordingto JamesG. Blaine three of the RepublicanssupportedPresidentJohnson.Blaine, 2 TwentyYearsat 284 (cited in note 86). The
House wouldhave 148 Republicansand41 Democrats.Id at 285-86.
159 Act of March2,1867, ch CLIII,14 Stat428.
160 McKitrickdescribes the sometimes
confusingprocess by which the act was drafted.
McKitrick,AndrewJohnsonat 473-85 (citedin note 86).As he explains,the statutethatemerged
was "a productof intense and extendeddebate,the resultsof whichwere not anticipatedat the
beginningnor the implicationsentirelyappreciatedeven at the end."Id at 473.
161 Act of March2, 1867,ch CLIII,Preamble,? 2,14 Stat428.
162 Id ? 3.
163 Id.
164
Interferenceby the state judiciarieswith militarycontrolof violence had been an issue
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[68:375
Having put the southernstates under militarysupervision,Congress offered them a way out: form new governmentsthat satisfied
Congress'snotions of validity and republicanform, and ratify the
FourteenthAmendment. Republicanform and loyalty meant raceUntil senators and representativeshad been
blind loyal suffrage.165
admitted pursuantto those terms,the Act provided that "any civil
governmentswhich may exist therein shall be deemed provisional
only, and in all respects subject to the paramountauthorityof the
United States at any time to abolish,modify,control,or supersedethe
,,166
same.,,6
Republicansquicklyrealizedthat,whetherby accidentor design,
they had left out an importantpiece of the reconstructionmachinery:
a starter.Although the first act describedthe kind of new southern
constitutionthat wouldsatisfyCongress,it did not chargeanyonewith
conducting the elections that would produce those constitutions.'67
Whenthe FortiethCongressconvenedimmediatelyin the wake of the
Thirty-ninth,it had to decide whetherthe federalgovernmentshould
set the processgoing.68Before the end of Marchit had passedanother
reconstructionact designedto do just that.69The first supplementary
act instructedthe militarycommandersto register voters and then
conductan election at whichthe people wouldvote both for delegates
to a conventionand on the questionwhetherto hold the convention."7
If a majorityof all registeredvoters decidedto have a convention,the
commandinggeneral was to summonthe delegates and then to conAndrewJohnsonat 455-60 (citedin note 86).
in the debates.McKitrick,
165 Section5 of the Act providedthatmilitaryrulewouldend,andthe stateinvolvedwould
be "declaredentitledto representationin Congress,andsenatorsandrepresentatives[would]be
admittedtherefromon their takingthe [ironclad]oath prescribedby law"when the following
hadhappened:
(1) a conventionhadformedanda majorityof the peoplehadratifieda constitutionin conformitywith the Constitutionof the United States,suffragein electingthe conventionand
voting on the proposedconstitutionbeing confinedto "the male citizens of said State,
twenty-oneyearsold andupward,of whateverrace,color,or previouscondition,who have
been residentin said Statefor one yearpreviousto the day of suchelection,exceptsuchas
for participationin the rebellionor for felonyat commonlaw";
maybe disenfranchised
(2) the new constitutionprovidedfor suffrageby thosewhocouldvote for the convention;
(3) Congresshadapprovedthe new constitution;
(4) the statelegislaturehadratifiedthe FourteenthAmendment;and
(5) the amendmenthadbecomepartof the Constitution.
Act of March2, 1867,? 5, 14 Stat at 429.Moreover,the Act barredfromvotingfor or servingin
the conventionanyonebarredfromfederalofficeby Section3 of the proposedamendment.
166 Id?6.
167
See McKitrick,AndrewJohnsonat 483-84 (citedin note 86) (notingconfusionover the
bill).
168 Id at 484.
169
170
Act of March23,1867,ch VI, 15 Stat2.
Id ?? 1-4,15 Statat 2-3.
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duct a referendumon the constitutionthey drafted.7'If that constitution was approved,it was to be submitted to Congress,which was to
decide whether the referendumhad been free and fair, whether the
new constiturequisite majorityhad been obtained, and whether the
7
tion was in conformitywith the reconstructionacts. If Congress so
declared,the state involved was to be entitled to representationand
its senators and representativesto be admitted,assumingthey were
individuallyqualified."3
Congress,however, was not finished with reconstructionlegislation. In May and June 1867, Attorney General Stanbery produced
opinions that took a restrictive view of the first two reconstruction
acts.'74
Stanberyconcludedthat the military'spower with respectto the
existing civil governmentswas restrictedto that which was necessary
to maintainorder,prevent insurrection,and punish crime.'75
Congress
responded in July with another supplementaryact that gave the military authoritiescomplete power over the existing civil governments,
undid most of the rest of Stanbery'swork, and instructedthe military
officers to stop listeningto the Attorney General.76
While all this took place in Washingtonin the first half of 1867,
states were acting on the FourteenthAmendment. As more legislatures convened,more ratificationscame in. By the end of Junetwentytwo states had ratified, counting Tennessee."77
As will be discussed
some
that
the
amendment
itself had
presently,
Republicans thought
been
ratifiedtoo.
thereby
As the federally sponsored elections and conventions got under
way, opponents of the proposed new regimes thought they saw a
weakness in the congressionalplan. Under the Reconstruction acts,
ratificationof a new constitutionrequireda majorityof all registered
voters, not just a majorityof those who voted on ratification.So the
lazy southerner'sway to resistwas to register,but then not show up on
171
172
Id ? 4,15 Stat at 3.
Id ? 5,15 Stat at 3-4.
173 Id.
174
12 Op Atty Gen 141 (May 24,1867) (Henry Stanbery, AG); 12 Op Atty Gen 182 (June
12,1867) (Henry Stanbery, AG).
175 12 Op
Atty Gen at 188-89.
176 Act of
July 19, 1867, ch XXX, 15 Stat 14. Section 2 gave the military commanders power
"to suspend or remove from office, or from the performance of official duties and the exercise of
official powers, any officer or person holding or exercising, or professing to hold or exercise, any
civil or military office or duty,"and "to provide from time to time for the performance of the said
duties of such officer or person so suspended or removed, by the detail of some competent officer or soldier of the army, or by the appointment of some other person, to perform the same, and
to fill vacancies occasioned by death, resignation, or otherwise." Id ? 2. Section 10 provided that
no commander would be "bound in his action by any opinion of any civil officer of the United
States." Id ? 10, 15 Stat at 16.
177 See 1 USC LXIII (listing ratifications).
408
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[68:375
election day.A concertedeffort in this regardworkedin Alabama,at
least accordingto General Meade's initial count.'78
To keep this trick
from workingagain,the Republicanspassed anotherReconstruction
Act in March 1868 that authorizedratificationby a majorityof the
votes cast.79
On June 22, 1868,Congressenacted a statute declaringthat Arstates to qualify,had
kansas,first of the congressionally-reconstructed
all
with
and
was
to
entitled
A
complied
requirements
representation.'8
few days later, the dam burst and an omnibus bill providedfor the
admissionto representationof North Carolina,South Carolina,Louisiana,Georgia,Alabama,andFloridaas soon as theirlegislaturesratified the FourteenthAmendment."8'
IncludingAlabamain that list had
been controversial,because its referendumon the new constitution
had been held before Congressmoved the goalposts.182
The remainingthreesouthernstatespresentedgreaterdifficulties,
and misbehaviorby the Georgialegislaturefor a while cast thatstate's
status into doubt.183
Virginiawas restoredin January1870,Mississippi
in February,Texas in March,and Georgia (again) in July 1870.14Before their admissionVirginiaand Mississippiratifiedthe Fourteenth
Amendment,andTexas,wherethe first-roundconventionhad not met
With the resuntil 1866,ratifiedthe ThirteenthAmendmentas well.185
toration of Georgia, congressionalreconstructionwas over, and no
state has been excludedfrom Congresssince.
As the ratifications came in from the congressionallyreconstructedlegislaturesin 1868,the federalexecutivebranchplayed
a game with them. Under the omnibusreadmissionact, the President
was requiredto certifyratificationsto Congress.86
PresidentJohnson,
in
that
taken
the
his
veto
the earlierregimes
messages
having
position
had been valid and that Congressthereforehad no businessarranging
for the creationof new ones, referredto notice of ratificationcoming
In similarfashion,
from someone who "writeshimself Governor."'87
178 See Walter L.
Fleming, Civil War and Reconstruction In Alabama 536-42 (Columbia
1905)(recountingdifficultieswithratificationof AlabamaConstitution).
179 Act of March11, 1868,ch XXV,15 Stat41.
180 Act of June22,1868,ch LXIX,15 Stat72.
181 Act of June25,1868,ch LXX,15 Stat73.
182 See
Fleming,CivilWarat 540-41 (citedin note 178) (notingthatthe votingoccurredin
February).
183 See C.MildredThompson,Reconstruction
in Georgia:Economic,Social,Political,18651872255-75 (Columbia1915)(describingeventsin Georgia).
184 See Act of January26, 1870,ch X, 16 Stat 62 (restoringVirginia);Act of February23,
Act of March30,1870,ch XXXIX,16 Stat80 (re1870,ch XIX, 16 Stat67 (restoringMississippi);
storingTexas);Act of July15,1870,ch CCXCIX,16 Stat363 (restoringGeorgia).
185 See 1 USC LXII-LXIII(listingratifications).
186 Act of June25,1868,ch LXX,? 3, 15 Statat 74.
187 In responseto notificationfromSouthCarolina,PresidentJohnsonproclaimedthat"on
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TheLawfulnessof the Reconstruction
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Secretary of State Seward issued a conditional proclamationof the
amendment,one that did not actuallytake a position as to whether it
had been ratified. In describingthe situation he referred to ratifications from "newly constituted and newly establishedbodies avowing
themselves to be and acting as the legislatures,respectively,of the
States of Arkansas,Florida, North Carolina,Louisiana,South CaroNot amused,on July21, 1868,the congressional
lina, and Alabama."188
majority passed a concurrent resolution declaring the amendment
adopted and directingthe Secretaryto promulgateit, which he did.189
And as Chief JusticeHughes put it about a lifetime later,"[t]his
decision by the political departmentsof the Governmentas to the validity of the adoption of the Fourteenth Amendment has been accepted."90The Thirteenthand Fifteenth Amendments have been accepted too.
B. WhatWereTheyThinking?
But should they have been? The processjust describedwas,to say
the least, extraordinary.Eleven states had gone throughpolitical convulsions in which governments were created and destroyed. Objections were raised to the legality of the processes that created all
twenty-one of the reconstructedgovernments and to the validity of
their official acts.It was also unheardof to use federal power to press
constitutionalamendmentson the states.All those who participatedin
reconstruction,including those who were paying attention to the
process of constitutionalamendment,knew that something very unusual and legally doubtfulwas going on. Yet the vast bulk of Republicans and some Democrats seem to have believed that both the Thirthe eighteenthday of July,one thousandeight hundredand sixty-eight,a letter was receivedby
the President,whichletter ... was transmittedby andunderthe name of R. K. Scott,who therein
writeshimselfGovernorof SouthCarolina"and whichannouncedthat SouthCarolinahad ratified.AndrewJohnson,ProclamationNo 8, July18,1868,15 StatAppendix704,704.
188 WilliamH. Seward,ProclamationNo 11,July20,1868,15 Stat
Appendix706,707. In additionto alludingto the problemof the congressionally-reconstructed
states,Sewardalso recited
that the legislaturesof Ohio andNew Jerseyhad adoptedresolutionspurportingto rescindtheir
earlierratificationsand that it was "a matterof doubt and uncertaintywhethersuchresolutions
are not irregular,invalid,and thereforeineffectualfor withdrawingthe consent of the two said
States."Id. Sewardcertified"thatif the resolutionsof the legislaturesof Ohio and New Jersey
ratifyingthe aforesaidamendmentare to be deemed as remainingof full force and effect, notwithstandingthe subsequentresolutionsof the legislaturesof those States,which purportto
withdrawthe consent of said States from such ratification,then the aforesaidamendmenthas
been ratified."Id.
189 WilliamH. Seward,ProclamationNo 13, July 28, 1868, 15 StatAppendix 708. Seward
quotedin full the concurrentresolutiondirectinghim to promulgatethe amendment.Id at 70910 (statingthat the validityof the ratificationof the FourteenthAmendmentby a state legislature thathad previouslyrejectedthe Amendmentwas to be determinedby the Congress,not the
Court).
190 Coleman v Miller, 307 US 433,449-50 (1939).
410
The Universityof Chicago Law Review
[68:375
teenth and FourteenthAmendmentshad been validlyratified.What
were they thinking?
No doubt many of them were thinkingthat ratifyingthe Amendments was right or at least an unavoidablepoliticalcompromise,that
the law authorizeswhat the countryneeds, and that the details could
take care of themselves.Many participants,however,did addressthe
legal issues more explicitly.
1. The reduceddenominatortheory.
A largenumberof Republicansbelieved,or at least asserted,that
southernratificationswere irrelevantbecausethe seceded states were
not properlyincludedin the ArticleV denominator.It is exceptionally
importantto understandthat this conclusion could be reached by
more or less radicalroutes,and that those who took the trulyradical
routes seem to have been in the minorityamongRepublicans.Twoof
the maintheoriesof reconstructionled automaticallyto a reduceddenominator.If the eleven states had in fact seceded and been conquered, they did not count any more than the Mexicanprovinceof
Alta CaliforniacountedafterAmericantroopsseized it (but before it
If a political act of the people had
became the State of California).9"'
those
states
as
such,makingtheirland into federalterritory
destroyed
and their inhabitantsinto Americancitizensnot residentin any state,
then once again they were irrelevant to Article V.92
But while the conqueredprovincesand territorialstatustheories
attractedfew followers among Republicans,many members of that
party neverthelessbelieved that the extraordinaryevents of the precedingyearshad removedthe ex-ConfederateStatesfrom the Article
V denominatorwithoutremovingthem from the Union.The germ of
this more moderatetheory seems to have come from Representative
Shellabarger'sdestroyedgovernmentsthesis, accordingto which the
secedingstates had wiped clean the slate of theirpoliticallaws.'93
One resultwas that they had,for the time being,no lawfullegislature that could act on a constitutionalamendment.According to
CharlesSumner,a state withouta legislaturedid not count in calculatIn broaderterms,the seceded states
ing the ArticleV supermajority.'94
191 See the conquered provinces thesis in text accompanying note 83.
See text accompanying note 84. Representative George W. Julian in 1867 embraced the
territorial status theory and deduced the consequence that the former states did not count under
Article V. Cong Globe. 39th Cong, 2d Sess Appendix 77-80 (Jan 28, 1867).
193 See Cong Globe, 39th Cong, 1st Sess 142-45 (Jan 8, 1866). See also notes 86-88 and accompanying text.
194 Early in the second session of the Thirty-ninth Congress, Sumner introduced a resolution
stating that states without lawful legislatures were not entitled to representation in Congress and
did not count in the Article V denominator. Cong Globe, 39th Cong, 2d Sess 15 (Dec 5, 1866). In
January 1868 Sumner explained his textual reasoning.
192
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were out of their practicalrelationswith the Union, and therefore did
not count in the denominator.Thatwas JohnBingham'sformulation.95
By disruptingthe election of senators and representatives,rebellion
could take a state out of those relations,just as it could paralyzethe
state domestically by eliminating its loyal government. Bingham's
formulationseems to have been especially attractiveto Republicans
because it naturallysuggested, and Bingham espoused, a test to determinewhether a state was or was not maintainingpracticalrelations
with the United States:whether Congress believed it currentlyentitled to senators and representatives.As long as the southernerswere
excluded from Congress,Bingham believed, their states were temporarilyexcludedfor Article V purposes.
If this theory is correct,most of the objectionsto the amendment
process vanish, and the Amendments were ratified well before the
Secretaryof State promulgatedthem. When the ThirteenthAmendment was proposed, twenty-six out of thirty-six states were represented in Congress,if one counts Virginia,which was hangingon by a
single senator.'6After March 4, 1865, twenty-five states were repreAn amendment,when proposed,"shallbe valid to all intentsand purposesas part of this
Constitutionwhen ratified by the Legislaturesof three fourthsof the several States."It
does not say "whenratifiedby three fourthsof the severalStates,"but "bythe 'legislatures'
of three fourthsof the several States."Now, if there are States withoutLegislatures,they
can have no voice in the ratification.
CongGlobe,40th Cong,2d Sess 878 (Jan31, 1868).EvidentlySumnerhad moved awayfromthe
theorythat the stateshad simplydestroyedthemselvesas such.
195 "I believe that the sovereigntyof the nation is alone in the organizedconstitutional
Statesof this Union,maintainingtheir relationsto the FederalGovernment,and representedin
the Congressof the United States."Cong Globe, 39th Cong,2d Sess 500 (Jan 16, 1867) (Rep
Bingham).FromthatpremiseBinghamdeducedseveralconclusions,one of whichhadto do with
ArticleV. He sustained"the power of the loyal organizedStateshere representedto ratify[the
pendingFourteenthAmendment]and make it partof the Constitutionof the United States."Id
at 501.Binghamalso assertedthat while a state was disorganized,Congresshad exclusivepower
to legislatefor it. Id at 500.
196 At that point claimantsfrom Louisianaand Arkansashad not been seated.Virginia's
only memberof either house was SenatorJohn Carlile,whose term was about to expire at the
end of the Thirty-eighthCongressin March1865.(Carlilehadbeen elected by the Wheeling,Virginia legislatureto fill out a term that began in March,1859.)Ambler,Pierpontat 113 (cited in
note 17). His colleague,LemuelBowden,had died in January,1864.Cong Globe,30th Cong,1st
Sess 147 (Jan 11, 1864) (announcingBowden'sdeath). (Bowdenhad been elected to a six-year
term beginningin March,1863.Cong Globe,37th Cong,3d Sess 1426 (Mar2,1863).) The Alexandria,Virginialegislatureelected JohnSegarto serve out Bowden'sterm,and on February17,
1865,WaitmanWilley,then a senatorfromWestVirginiaandpreviouslya senatorfromVirginia
elected by the Wheelinglegislature,presentedSegar'scredentials.Cong Globe, 38th Cong,2d
Sess 845 (Feb 17, 1865).After a debate on the statusof the Alexandriagovernment,Segar'scredentialswere tabled. Id at 845-49. Meanwhile,the Alexandrialegislaturehad elected John C.
Underwoodto succeedCarlilefor a termthat wouldrunfromMarch,1865throughMarch,1871.
Ambler,Pierpontat 227 (cited in note 17). A Special Session of the Senate of the Thirty-ninth
Congressconvened in March1865,and SenatorDoolittle presentedUnderwood'scredentials.
See Cong Globe, 38th Cong,2d Sess 1433 (Mar9, 1865).(The recordsof the SpecialSessionof
the Senate of the Thirty-ninthCongressappearin the CongressionalGlobe for the second ses-
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sented.197Three-fourths of twenty-five is nineteen, and on July 1, 1865,
New Hampshire was the nineteenth represented state to ratify.198
By
the time the Fourteenth Amendment had been proposed, Nebraska
had been admitted to the Union and to representation in Congress, so
the total number of states was thirty-seven and the number of represented states was twenty-six. Tennessee was admitted to representation before three-fourths of the represented states had ratified, raising
the denominator to twenty-seven. Three-fourths of twenty-seven is
twenty-one, and on March 20, 1867, Massachusetts was the twenty-first
represented state to ratify, counting Tennessee.'99If one believes that
Tennessee should not count in the numerator because its ratification
had been coerced, the Amendment went into effect when Nebraska
ratified on June 15, 1867, while the number of represented states was
still twenty-seven.?
Those who embraced this theory were unembarrassed by the
claim that the Military Reconstruction Acts called the Thirteenth
Amendment into question when they branded the first-round governmentsas illegal.20'Nor were they troubledby the assertionthat the
ratificationsof the FourteenthAmendmentby unrepresentedstates
sion of the Thirty-eighth Congress.) The Senate postponed consideration of Underwood's credentials until its next session, the first session of the Thirty-ninth Congress, which would convene
in December 1865. Id at 1434. It then took Segar's credentials from its files and postponed them
too. Id at 1434-35. Segar and Underwood were thus included among the southern claimants
whose credentials were referred to the Joint Committee on Reconstruction. From the expiration
of Carlile's term in March, 1865, to Virginia's readmission to representation in 1870, no senator
or representative from Virginia sat in Congress.
197 See Cong Globe, 38th Cong, 2d Sess 1424 (Mar 4, 1865) (listing Senators from twentyfive states).
198 1 USC LXIII. Counting New Hampshire as the nineteenth and decisive state assumes
that the denominator fell from twenty-six to twenty-five when Virginia ceased to be in practical
relations with the Union. It does not count the ratification by the Alexandria, Virginia legislature
on February 2, 1865. That ratification did take place while Virginia was represented by Senator
Carlile, so if the denominator was fixed at twenty-six and twenty states were needed even after
Virginia ceased its practical relations, then Virginia should count and New Hampshire was the
twentieth and conclusive ratifying state. The nineteen or twenty that culminates with New
Hampshire does not count ratifications by the Lincoln-reconstructed legislatures of Louisiana,
Tennessee, and Arkansas, which ratified on February 17, April 7, and April 14, respectively. Id.
According to Bingham's theory, those states would in no circumstances count in the denominator because they were not represented when the amendment was proposed or when it was
adopted.
199 Id. On March 11, 1867, Representative Bingham stated that the Fourteenth Amendment
had been ratified. Cong Globe, 40th Cong, 1st Sess 64 (Mar 11, 1867). On January 11, 1868, Senator Sumner introduced Senate Resolution 86, declaring the Fourteenth Amendment ratified.
Cong Globe, 40th Cong, 2d Sess 453 (Jan 11,1868).
200 Cong Globe, 40th Cong, 2d Sess 453 (Jan 11,1868).
201 See Andrew Johnson, Veto
Message, Mar 2,1867, in Richardson, ed, 6 Messages and Papers of the Presidents at 508 (cited in note 14).
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were being extorted from them. Accordingto this view those ratifications were a pledge of loyalty,not a constitutionalnecessity.202
It is impossibleto be sure how many Republicansbelieved that a
state did not count in the denominatorwhile it was out of its practical
relations with the Union. Not everyone addressed the issue, a few
equivocated,and some who professed the theory may not really have
believed it. But quite a few professed it. As noted, the list includes
CharlesSumnerand John Bingham,who were importantand influential figuresdespite a talent for rubbingtheir colleaguesthe wrongway.
A more politick proponent was Schuyler Colfax, Speaker of the
House (and Grant'sfirst Vice President).23Senator LymanTrumbull,
Chairmanof the Senate JudiciaryCommittee and a prominent Supreme Court lawyer, at one point counted himself a supporter,although at another time he was softer in his endorsement.24Several
A few came out explicitly
other Republicans adopted the theory.205
See remarksof SenatorStewartin note 205.
On March17, 1868,SpeakerColfaxstatedthat in his view the FourteenthAmendment
was partof the Constitution.See CongGlobe,40th Cong,2d Sess 1928(Mar17,1868).
204 On January23,1868,SenatorTrumbull,
respondingto SenatorDoolittle'sargumentthat
the ThirteenthAmendmenthad been submittedto the seceded states,said that theirvotes were
not necessaryfor its ratification.See Cong Globe, 40th Cong, 2d Sess 709 (Jan 23, 1868). In
March1868,discussinga bill to removepoliticaldisabilities,Trumbullexplainedthat the Judiciary Committeehad draftedthe bill so as to avoidthe questionwhetherthe FourteenthAmendment,whichwould add to the disabilitiesimposedby statute,was partof the Constitution.Id at
1978 (Mar 19, 1868).A few monthslater,duringdebate on the readmissionof Arkansas,Trumbull was cagey,statingthat some said the FourteenthAmendmentwas alreadyratifiedand he
was not preparedto say they were wrong,but that it soon wouldbe ratifiedbeyond all doubt.Id
at 2602 (May 27, 1868).Twodays later,SenatorEdmundsaddressedthese remarksto Trumbull:
"I ask my honorablefriendfrom Illinois,has it become so [ratified]?My friendis unwillingto
say that it has.I do not know what his individualopinionis. I can scarcelysay that I knowwhat
my own is."Id at 2662 (May 29, 1868). SenatorEdmundswent on to say that he was inclined
againstthe reduceddenominatortheory,but that in any event ratificationshouldnot be left in
doubt.Id.
205 On January28, 1867, RepresentativeCollum said that the FourteenthAmendment
would become part of the Constitutionwhen ratified"by three fourthsof the States in their
practicalrelationsto the Government."Cong Globe,39th Cong,2d Sess 814 (Jan28, 1867).The
next monthSenatorStewartsaid that"we all hold that that [Amendment]may be ratifiedby the
loyally representedStates withoutthem, and the only object of having them recognizeit is to
show their loyalty to this Government."Id at 1392 (Feb 15, 1867).See also id Appendixat 176
(Feb 9, 1867) (Rep Banksstatingthat three-fourthsof representedstates may ratifyan amendment);CongGlobe,40th Cong,1st Sess,Appendix28 (July20,1867) (Rep Lawrencestatingthat
three-fourthsof the stateswith legal state governmentscan ratify).
SenatorWilsonsaid thatin his view the FourteenthAmendmenthadalreadybeen ratifiedas
of May30, 1868,but thatmanyable mindsdoubtedor denied it, so the southernstates shouldbe
admittedto representationand their ratificationscounted.See Cong Globe,40th Cong,2d Sess
2691 (May30,1868).
The Nation likewise adopted the reduced denominatortheory. When the Fourteenth
Amendmentwas close to passagein Congress,that Republicanjournalstatedthatthe consentof
the revoltedstateswasnot needed for its ratification.2 Nation673 (May28,1866).A few daysafter Congressproposedthe amendment,TheNationprophesiedthat it was "almostcertainto be
ratified by three-fourthsof the States at present lawfullyorganized."2 Nation 744 (June 11,
202
203
414
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Some endorseda reduceddenomiagainst.2 Some were uncertain.207
natortheorywithoutsayingwhichone.28
As shouldnot surpriseus,theirstatedviews on this legal question
dependedon the politicalsituation.In 1868,as Congresswas deciding
whetherto admitthe congressionally-reconstructed
regimesto representationin Congress,some said that it would be wise to have threefourthsof all the states to quell all doubts.2"
Admissionwould ratify
the states' ratificationof the Amendment.It also would bringin Republican senators and representatives.At that point, ratificationto
dispel doubtsseems to have become more importantto some Republicans.
2. The congressionalrecognitionpower.
While a substantialnumberof Republicansespousedthis theory
and at least some of them probablybelieved it, they knew that not
everyonedid andin particularthatnot everyjudgeor justicenecessarily would.They also knew that not everyone agreedwith their claim,
based on Shellabarger'sdestroyedgovernmentstheory,that Congress
had substantialauthorityunder the GuaranteeClause to rebuildthe
politicalstructuresthat the secedingstates had razedto the ground.20
By what must have struckthem as a wonderfulirony,however,Chief
JusticeTaneyhad suppliedthem with a powerfulweapon in the legal
struggleover reconstruction.
1866).The southernstates,it maintained,were disorganized,and Congresshad powerto summon conventionsthatwouldcreatelawfulgovernmentsfor them.Id at 745.
206 SenatorCharlesDrake,Republicanof Missouri,rejectedthe reduceddenominatortheory duringthe debateon Arkansas'sadmissionto representationon May28, 1868.CongGlobe,
40thCong,2d Sess2628(May28,1868).He thenhedgeda little,sayingthatit wouldtaketwentyeightstates"togive satisfactionandpeaceto the peopleof thiscountry,andthe convictionthatit
is rightfullydone."Id.
207 RepresentativeGeorge Miller,Republicanof Pennsylvania,said on January19, 1867:
"[Determinationof the numberof statesneeded for ratification]is a questiontoo importantto
theorizeupon,as thereis no tellingwhatthe SupremeCourtof the UnitedStates,as now or shall
States."
hereafterbe constituted,may decidein regardto the statusof these ten insurrectionary
CongGlobe,39thCong,2d Sess,Appendix83 (Jan19,1867).
208 See, for example,Cong Globe,39th Cong,2d Sess 255 (Jan3, 1867)(Rep Pike stating,
"[w]eshalladoptthe amendmentby meansof threefourthsof the loyalStates");id at 288 (Jan5,
of thatamendmentby threefourthsof the loyalStates
1867)(Rep Spauldingstating"ratification
wassufficientto makeit partof the Constitution").
209 In the summerof 1868,while the Senatewas consideringthe readmissionof six states,
SenatorShermanmaintainedthatit was a matterof doubtwhetherthe FourteenthAmendment
had been ratified,becauseit wasnot clearhowmanystatescountedin the denominator,andthat
admissionof the southernstateswoulddispelthose doubts.See CongGlobe,40thCong,2d Sess
2860(June5,1868).
210 See AndrewJohnson,Veto Message,Mar2, 1867,in Richardson,ed, 6 Messagesand Papers of the Presidents at 498-511 (cited in note 14).
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Under Luther v Borden2' as they understood it, Congress could
quell any doubts about the validity of the second-roundregimes by
admittingthem to representationand therebyblessing them as republican and lawful.2 The courts would be bound by that determination.
Lyman Trumbullannounced this doctrine in both the old and new
Senate chambers,expounding it in debate and before the Supreme
Court in Ex parte McCardle.23
Many Republicanswere familiarwith
the principle.24
Luther would give the Fourteenth Amendment a firm footing.
Once Congresshad declareda state entitled to representation,the actions of the state governmentso recognizedwould be conclusivelyestablished as the actions of the state.25Ratificationby Tennessee and
211 48 US (7 How) 1 (1840).
212 Id at 42. Lutherand its doctrineare discussedin detailin PartII.B.1.
213
In the Senate on July1, 1868,SenatorTrumbullreliedon Lutherfor the propositionthat
congressionalrecognitionof the new southerngovernmentswasfinalandbinding,andthatresistance to them wouldbe revolution.See Cong Globe,40th Cong,2d Sess 3630-31 (July1, 1868).
In the Court,TrumbullinvokedLutherfor the propositionthat the statusof a state was a political questionfor Congress.See OralArgumentof LymanTrumbull,Ex ParteMcCardle,74 US (7
Wall)506 (1869),reprintedin PhilipB. Kurlandand GerhardCasper,eds,5 LandmarkBriefsand
Arguments of the Supreme Court of the United States: Constitutional Law 375, 377 (University
Publications1975).Trumbullalso used the opportunityto expoundthe destroyedgovernments
theory:
That chain whichmade Mississippia State in 1817 was brokenwhen she set up a government in hostilityto the governmentof the United States.It ceased then to be a State of the
AmericanUnion;that is to say,its politicalorganizationas a State of the AmericanUnion
was destroyed.
Id at 379.
214 See, for
example,Cong Globe,40th Cong,2d Sess 512-13 (Jan14,1868) (Rep Bingham
statingthat congressionaljudgmentsunderthe GuaranteeClauseare bindingon the courts);id
at 2118-19 (Mar26,1868) (Sen StewartexplainingthatRepublicanshave no fearof the Supreme
Courtbecause it has no power to decide the statusof the southernstates);id at 3912 (July 10,
1868) (Sen Conkling,referringto Lutheras supportingthe premise"thatto Congressas the lawmakingpower,or politicalpowerof the country,belongsthe recognitionor the refusalto recognize a Stategovernmentin any particularState as the legitimategovernmentthere.").
Democratsand JohnsonRepublicanshad read the case too. SenatorBuckalewof Pennsylvania,a Democratfor practicalpurposes,was askedby SenatorEdmunds,"wheredoes the rightful power in this Governmentreside of determiningwhat is a State;what politicalcommunity
pretendingor assertingitself to be a State is a true State that belongsto the Union?"Id at 3879
(July9, 1868).Buckalewreplied that he was familiarwith Luther,but that in certaincases the
courtsmay have to decide the questionfor themselvesas an originalmatter.Id.
The Nation also had considerableconfidencein the doctrineof Luther.In early 1867 it explained that underthat case the courtswouldbe boundby Congress'sendorsementof the second-roundgovernments:Congress'schoice between two sets of state conventions,both representing only part of the people and both summonedby nationalauthority,would not be questioned.4 Nation 10 (Jan3, 1867).Laterthat year the point was made again."Thework of reorganizationmustgo on; and when it is completed,the decisionof Congresswill make validwhatever may have been irregular,leavingno choice for the courtsbut to recognizethe governments
whichCongresshas approved."4 Nation394 (May 16, 1867).
215 Republicansalso seemed to be confidentthat congressionalrecognitionwould relate
back to prior state actions,includingespecially ratificationof constitutionalamendments.See
416
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[68:375
the congressionally-reconstructed states would be unassailable."6At
least, the actions of the congressionally-recognized governments
would be unassailable. But most of the southern ratifications of the
Thirteenth Amendment had come from first-round governments, of
which all but Tennessee's had been declared illegal and provisional
only by the first Military Reconstruction Act. How did the Republicans think they could keep those ratifications?
I have been unable to find a straight answer to this question, perhaps because Republicans were unwilling to commit themselves to
any one theory. It is possible, however, to engage in some informed
speculation. First, many Republicans may have believed that the
southern ratifications of the Thirteenth Amendment had been valid of
their own force, even without congressional sanction. When it came to
the legal effectiveness of the first-round governments, Republicans'
bark generally was worse than their bite. Both before and after the
first Military Reconstruction Act was adopted, many of them recognized that the southern governments were effective for at least some
purposes.27Indeed, the Act recognized those governments as provisional, a backhanded way of saying that they had some authority.21
CongGlobe,39th Cong,2d Sess 501 (Jan16, 1867)(Rep Binghamnoted thatthe "insurrectionary Statesmay proceedwith ... the formalratificationof the constitutionalamendmentand all
that they do in that behalfmay by the subsequentact of the nationalsovereigntyby resolution
be made valid.")(Jan16, 1867);id Appendix75 (Jan17, 1867)(Rep Bakeralso noted that not
untilthe bill thatrestoredthe statesto theirfull politicalrightspassedwouldthe "defactoState
be recognized.).
governments"
216 RepresentativeLawrencegave another
exampleof political-branch
finalityat work.The
Virginiagovernmentat Wheelinghad been recognizedby the political departments,he explained,and thereforeits consentto the creationof WestVirginiacouldnot be questioned.See
CongGlobe,40thCong,2d Sess 182 (Dec 13,1867).
217 Beforethe firstMilitaryReconstruction
Act passed,evenThaddeusStevenssaidthatthe
first-roundgovernmentswere municipalinstitutionsfor going on fromday to day.CongGlobe,
39thCong,2d Sess291 (Jan5, 1867).Afterthe firstAct hadbeen adopted,SenatorFrelinghuysen
of New Jerseymaintainedthatthe first-roundgovernmentsretainedsome authority,so thattheir
courtscouldexercisejudicialpowerandtheirlegislaturescouldborrowon the creditof the state.
See CongGlobe,40th Cong,1st Sess 136 (Mar16, 1867).In the summerof 1867,SenatorTrumbullmaintainedthatthe southerngovernmentswere provisionalin the sense thatthey werenot
utterlynull andvoid but weresubjectto congressionalcontrol.Id at 523 (July9,1867).Trumbull
mustnot havebelievedthatthe first-roundgovernmentswerevoid ab initioandtotallyhopeless
as a legal matter,for in that speech he also said that had they been in the handsof loyal men
neverwouldhave happened.
Congresswouldhave recognizedthemandmilitaryreconstruction
Id.Even arch-RadicalSenatorHowardof Michiganrecognizedthatthe first-round
governments
existed as a matterof fact, althoughhe took a very narrowview of their legal authority.Id at
550-51 (July10,1867).He believedthattheirde factostatusmeantthattheircitizenswouldhave
to pay the debtsthe governmentscontracted.Id at 654 (July15, 1867).
218 SenatorFessenden,Chairmanfor the Senateof the JointCommitteeon Reconstruction,
believed that the firstReconstructionAct gave considerablerecognitionto the very regimesit
denounced:
They were governmentselected by the people in a certainway.We have recognizedtheir
legal existenceas governmentsin these States.We have saidin the veryact thatwe passed
Wehaveestablishedthatfact.It is
at the last sessionthatthey are provisionalgovernments.
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Some may have thought that the first-roundgovernments retained
their legal authority until Congress explicitly legislated to the contrary.2 Whatever individuals may have thought, we do know that
Congress,aware of the continued operation of the first-roundgovernments,never acceptedthe suggestionthat they simplybe dissolved
and never provided that nothing they did or had done had any legal
effect.22While Congresson a few occasionsacted to undo some specified act of a "provisional"government,it certainlynever did so with
respect to ratificationof the ThirteenthAmendment.22
Second, some may have believed that congressionalrecognition
of the second-roundgovernmentswould retrospectivelyvalidate actions of the first-roundgovernments.The idea seems to have been that
a new permanentgovernment,as the successor to a provisionalgovernment, would take over what had been done in the state's name
during the provisional period. Both were governments of the same
state and hence there was inevitablysubstantialcontinuity.222
That conwas
stressed
the
second-round
Court
of North
by
tinuity
Supreme
Carolinain a case upholdingthe jurisdictionof a lower state court establishedunder the first-roundregime."Ourpresent governmentwas
formed under the same authoritywhich organizedand sustained the
no longerin our mouthsto deny,in any shape or form,that they are legal provisionalgovernmentsin these Statesafterwe have made them so-not legal Stategovernments;thatwe
deny;but legal provisionalgovernments.We have legalizedthem.
CongGlobe,40th Cong,1st Sess 96 (Mar14,1867).
219 SenatorTimothyHowe, for example,stated in March1867 that
Congress,throughthe
first MilitaryReconstructionAct, hadjust changedthe legal statusof the existingsoutherngovernments.Id at 137 (Mar16,1867).
While the Republicanswere tying themselves into the knot that Senator Fessendendescribed,SenatorThomasHendricksof Indiana,a Democrat,had some fun with their equivocation, askingjust what it meantto have an unlawfulbut lawfulprovisionalgovernmentsubjectto
a militarygovernment.Id at 157.
220 For example,in January1868 SenatorMortonintroduceda resolutionthat would have
abrogatedthe then-existingsouthern governmentsand replaced them with congressionallycreatedprovisionalgovernments,see Cong Globe,40th Cong,2d Sess 384 (Jan8,1868), but the
resolutionwas not adopted.Recognitionof the southernregimeseven as provisionalhad been a
subjectof controversywhile the first MilitaryReconstructionAct was drafted.Representative
Paine,for example,objectedto acceptanceof those governmentseven for municipalpurposes.
He maintainedthat they were highlyobjectionableandshouldget no recognitionfromCongress.
See CongGlobe,39th Cong,2d Sess 499 (Jan16,1867).
221 See, for example,ResolutionNo 8 (Feb 18,1869),15 Stat 344 (providingfor removalof
officersin provisionalgovernmentsof Virginiaand Mississippiwho could not take the specified
oath).
222 RepresentativeLawrenceof Ohio seemed to thinkthat there was substantial
continuity
between the two sets of southerngovernments.Lawrencewas amongthose who statedexplicitly
that congressionalrecognitionof a doubtfulstate governmentwould relate back and thereby
regularizethatgovernment'searlieractions,see CongGlobe,40thCong,1st SessAppendixat 23,
28 (July20, 1867),and in December 1867he explainedthat the purposeof militaryreconstruction was the "modificationand ratificationof the illegal governments."
Cong Globe,40th Cong,
2d Sess 183 (Dec 13,1867).
418
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ProvisionalGovernment.The two governmentsare part of the same
system and the laws of the preliminarygovernmentare properlycontinued until they are alteredby the legislationof the permanentgovernment."223
3. Coercion.
That leaves the problem of coercion to ratify,a subjectthe Republicanssaid very little about.2 Republicansknew that they were
imposing conditions on readmissionto representationin Congress,
and some of them mayhave believedthose conditionsto be an unlawful but necessary step. According to the official story,however, the
conditionswere lawful.In the exerciseof its power to decide whether
a state was entitled to representation,Congresscould take into account its loyalty and the effect of its readmissionon the preservation
of the Union.'
The answermay go deeper,however.Some indirectbut still probative evidence suggeststhat most Republicanswere not much worried about the problem of duress,even though they of course knew
that their decision to keep the southernersout was bitterlycriticized
on both legal andpoliticalgrounds.Thisimplicationcomes froman instructivesilence.When Congressreadmittedsouthernstates to representation it often did so on the basis of fundamentalconditions.22
223 State v Jarvis, 63 NC 556,557 (1869).
224 A typicalRepublicanattitudewasprobablythatof RepresentativeMiller,whoin March
of 1868 argued that it was wise to conditionreadmissionon ratificationof the Fourteenth
Amendment,becausethat way it wouldbe unnecessaryto decide whetherthree-fourthsof the
non-secedingstateswouldbe enough.See CongGlobe,40th Cong,2d Sess 2209 (Mar28, 1868).
Millerdid not mentionthe possibilitythata coercedratificationwouldbe invalid.SomeDemocrats did make the point.See, for example,Cong Globe,39th Cong,2d Sess 507 (Jan 16, 1867)
(Rep Dawsonarguingthat "[t]heimpositionby the adheringStatesof conditionsupon the seceding ... is ... in gross and flagrant violation of the principles on which the war was presumed
to be waged");id at 1333(Feb 18,1867) (Rep Finck)("Yougo to the people of these ten States
withthe bayonetin one handandyourproposedconstitutionalamendmentin the other,andask
themto maketheirchoice.").
225 Thiswas the conclusionof the JointCommittee'smajority.
The conclusionof your committeethereforeis, that the so-calledConfederateStates are
not at presententitledto representationin the Congressof the United States;that,before
allowingsuch representation,adequatesecurityfor futurepeace and safety shouldbe required;thatthis can only be foundin suchchangesof the organiclaw as shall[be foundin
the JointCommittee'sproposedconstitutionalamendment].
MajorityReport of the Joint Committeeon Reconstruction,reprintedin McPherson,Reconstructionat 93 (citedin note 92).
226 Arkansas,first of the
states to be readmitted,was decongressionally-reconstructed
claredentitledto representationin Congress"uponthe followingfundamentalcondition:That
the constitutionof Arkansasshallneverbe so amendedor changedas to depriveany citizenor
classof citizensof the United Statesof the rightto vote who are entitledto vote by the constitution hereinrecognized."An Act to admitthe State of Arkansasto Representationin Congress,
15 Stat72,72 (June22,1868).
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Some in Congress doubted whether those conditions provided any
meaningfulprotection, however, because there was good theoretical
and doctrinalsupportfor the propositionthat Congresshas no power
to make an enforceable contractwith a state as a condition upon admission, or at least that it has no such power with respect to political
mattersthat are beyond congressionalconcern.2'But while many Republicanstook seriously the possibilitythat their fundamentalconditions would not stick, I have found none who expressed fear that the
political coercion they employed would keep the constitutional
amendmentsfrom sticking.
It is possible that, if asked, many legally sophisticatedRepublicans would have explained that what they were doing did not constitute duress under the analogous law of contract. In the nineteenth
century there was good authorityfor the proposition that a contract
was invalid because of duress only if major violence was used or
threatened. Lesser threats did not invalidate a contract.28Despite
metaphorsto the contrary,Congresswas not demandingratificationof
the FourteenthAmendment at the point of a bayonet.It was imposing
a political price on non-ratification,and political coercion may not
have looked like invalidatingduressto lawyersin Congress.
II. THEORIES OF LAWFULNESS
In decidingwhether enough valid state governmentsvalidly ratified the amendments,the first point is to decide how many ratifications were needed. Part II.A considersthe possibilitythat the unrepresented states did not count in calculatingthe necessarysupermajor227 During the debate on the fundamental conditions in the Arkansas bill, some
Republicansexpressed doubts while others sought to assuage those doubts.Senator Roscoe
Conklingof New Yorkworriedthattherewas no clearprecedentfor a conditionthatwouldstick
and noted thatmanyRadicalshad expresseddoubtson the issue.See CongGlobe,40th Cong,2d
Sess 2604 (May 27, 1868). SenatorDrake assuredhis colleagues that fundamentalconditions
were fine. Id at 2600. But LymanTrumbullthought that the issue was attended with "great
difficulties."Id at 2601. Senator Morton believed that once a state was admitted to
representationit could do as it pleased despite fundamentalconditions,see id at 2603, and
Senator Ferry announcedthat he would vote to readmitArkansasdespite his belief that the
fundamentalconditionwas "simplywastepaper,andutterlyvoid,"id at 2608.
228 The exact magnitudeof threatrequiredto constituteduresswas a matterof doubt and
the doctrineseems to have been in transition.The 1839 edition of ChittydescribedEnglishauthorityaccordingto whichonly very seriousthreatswill make a contractvoidable,whereasthe
threatof mere batterywill not. JosephChitty,Jr.,A PracticalTreatiseof the Law of Contracts,
Not UnderSeal; and Upon the Usual Defenses to Actions Thereon167-69 (4th American ed
1839).Chittythen describedAmericanauthoritiesholdingthat duressof goods makesa contract
voidable.Id. Accordingto TheophilusParsonsin 1855,the then-currentdoctrineprobablywas
that a threatwould make a contractvoidable if it "wasof sufficientimportanceto destroythe
threatenedparty'sfreedom."TheophilusParsons,1 TheLaw of Contracts321-22 (Little,Brown
2d ed 1855).The importantpoint here is that the illegalityof the threatwas not enough,by itself,
to make a contractvoidable.
420
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[68:375
ity because of their disorganizedcondition.If all the states did count
underArticleV,then some of the southernratificationswere required,
and it becomes necessaryto decide whetherthey were effective.Part
II.B considersthis issue.Two objectionsare relevant.One is the claim
that either the first-roundor second-roundsoutherngovernments(or
possibly all of them) were not lawful state governmentsand hence
were not capable of performingany legal act, includingratifyinga
constitutionalamendment.Next is the claimthat even if some or all of
the southern legislatureswere capable of acting for their states, the
federalpressuredesignedto ensureratificationconstitutedthe kindof
duressthat made the ratificationsinvalid.
A. DisorganizedStatesand the Denominator
Article V requiresratificationof proposed amendments"by the
Legislaturesof three fourthsof the several States,or by Conventions
in three fourthsthereof,as the one or the other Mode of Ratification
29Asdiscussedabove, many Remay be proposed by the Congress.""
that
the
seceded
states did not count in the debelieved
publicans
nominator.A few thoughtthat was true because those states had left
the Union altogether,while a few more believed it to be true because
they had ceased to exist as states,leaving their populationand territory underthe controlof the United States.23
Muchmore common,possiblydominantamongRepublicans,was
the view that althoughstates could not leave the Union, they could be
out of their practicalrelationswith the United States,and that a state
out of its practicalrelationsdid not count in the denominator.While
that argumenthas some appeal,I find it ultimatelyunpersuasive.
CharlesSumnerproposeda textual argumentin favor of excluding the southernstates,but it is not very strong.He pointed out that
Article V refers to ratificationsby legislatures,not by states,and said
that if a state has no legislaturethen it cannotbe counted amongthe
ArticleV, however,
legislaturesthat make up the requisitemajority.23'
does not say quite what Sumnerwould have liked it to say."Threefourths"modifies"States,"not legislatures.232
Thus,the questionArticle
V asksis whether,as to any groupof states thatmake up three-fourths
229 US Const Art V.
230
James G. Blaine said that very few Republicans accepted Stevens's theory of successful
secession, and that the proof of this was their "absolute unwillingness to attempt an amendment
to the Constitution by the ratification of three-fourths of the Loyal States only." Blaine, 2 Twenty
Years at 140 (cited in note 86). Blaine in this passage did not discuss more conservative reduced
denominator theories like Bingham's.
231
Cong Globe, 40th Cong, 2d Sess 878 (Jan 31, 1868).
232 US Const Art V
("Amendments ... shall be valid ... when ratified by the Legislatures of
three fourths of the several States, or by Convention in three fourths thereof.").
2001]
TheLawfulnessof the ReconstructionAmendments
421
of the states,the legislaturesof those states have ratified.Sumner'sargument might have worked had Article V instead referred to threefourthsof the legislaturesof the states.If it had,one would look to the
state legislatures,which could mean looking at states that had legislatures, and ask whether three-fourthshad ratified. But the Constitution, for fairlyobvious reasons,is interestedprimarilyin the states and
only secondarilyin their legislatures,so the three-fourthsrequirement
modifies the states.
A more powerful argumentfor the reduced denominatorthesis
comes,not from the text, but from commonsense. Commonsense says
that a governmentcannot allow itself to be paralyzedby treason.As
the war demonstrated,treason can wholly subvertthe governmentof
a state and temporarilyexpel all federal power,leaving the state with
no lawful legislature and no means of holding an Article V ratifying
convention.If subvertedstates are still in the denominator,a violently
disloyal minority can freeze the Article V process.That process may
be very importantduringa rebellion.Therewere majordisputesin the
North about the draft,paper money,and the use of militarytribunals
to try civilians.One response to a constitutionaldisputeis to resolve it
through a constitutionalamendment.For example,the countrymight
well have benefited from an amendmentthat explicitlyauthorizedthe
use of militarytribunalsto try civilianswhile at the same time defining
more precisely the circumstancesunder which they could operate.As
Ex parte Milligan33 demonstrates,the then-existingprinciples of the
law of war were hardlyclear enough to give much guidance.23
With all
the seceded states still counting,however,such an amendmentwould
have been impossible. According to John Bingham and those who
thought as he did, it is simply inconceivablethat the Constitutionallows traitorsso to interferewith its operation.2
Bingham'sprinciplestates a reasonablepurpose to ascribeto an
unclearprovision.Article V, however,is pretty clear about this:threefourths of the states. If South Carolina was still a state, it counted.
Moreover, implementing the concept of practical relations with the
United States introduces another layer of uncertaintyinto Article V,
which performsits function better the clearerit is. Despite what most
Republicansmaintained,it was an open question whether Alabama,
for example,was in practicalrelations with the Union in 1866.While
235
233 71 US
234
(4 Wall)2 (1867).
Accordingto the majorityin Milligan,"no usage of war could sanctiona militarytrial"
in a state where federal authoritywas unopposed.Id at 121.Yet the Chief Justice,speakingfor
himselfand three others,concurredin the Court'sjudgmentbut not in its views aboutthe operation of the law of war."Wethink that Congresshad power,thoughnot exercised,to authorize
the militarycommissionwhichwas held in Indiana."Id at 137 (Chaseconcurring).
235 See CongGlobe,39th Cong,2d Sess 501 (Jan16,1867).
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[68:375
no senatorsor representativeshad been admittedto Congress,neither
had the state been officiallydeclaredineligiblefor representationby
either house, let alone Congressitself. Credentialshad been referred
to the JointCommitteeand the applicantshad not been seated,but as
far as one could tell from official congressionalpronouncementsthe
whole thing was still under advisement.23Meanwhile,the President
was takingthe positionthat the states were restored,and,as I will discuss in more detail presently,the SupremeCourtwas acceptingcases
The latterin particular
from and remandingcases to the state courts.37
is a very practicalrelationto the Union. Practicalrelationsis a fuzzy
concept,as to which differentcomponentsof the complicatedfederal
machinecan returndifferentanswers.It is not a naturalfor ArticleV.23
B. Full DenominatorTheories
Although the reduced denominatortheory has merits,it is also
subjectto doubt.While many Republicansendorsedit to varyingdegrees, they still did not pull the triggerand proclaimthe Fourteenth
Amendment ratified by three-fourthsof the representedstates. Instead,they waiteduntilthree-fourthsof all the stateshad,in theirview
at least, agreed to the Amendment.It seems that they were not preparedto try the more aggressivetheoryunlessthey absolutelyhad to.
If the ex-ConfederateStates were in the denominator,at least
some of them had to be in the numerator,because eleven was
throughoutthis period more than one-fourthof the numberof states
in the Union. Any theory that proposes to count them in calculating
the three-fourthsmust deal with the claim that their governments
were bogus and inoperative,and the charge that their ratifications
were coercedby PresidentJohnsonor Congress.
I will present two lines of argumentconcerningthe ratifying
governments'legal capacity.One is based on the principleof Luther,
which says that when the politicalbranchesrecognizea state government, that recognitionis bindingelsewhere.The other argumentsuggests that de facto state governmentsmay take legallyeffective action
236
See Fleming, Civil Warat 473-75 (cited in note 178).
237 In his first State of the Union
message, President Johnson said that the states would be
fully restored to their rightful place in the Union as soon as Congress admitted individually loyal
senators and representatives; everything else already had been accomplished. Richardson, ed, 6
Messages and Papers of the Presidents at 356 (cited in note 14). The Supreme Court's conduct is
described below. See Part II.B.l.b.
238 Although the Republicans controlled both houses of Congress and hence those two institutions acted in concert, it is common for the House and the Senate to be dominated by
opposing parties. The constitutional system nearly ground to a halt during the Hayes-Tilden
presidential contest of 1876 to 1877, mainly because the House was Democratic and the Senate
Republican. See Congressional Quarterly's Guide to Congress at Appendix 94-A (cited in note
122).
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Amendments
TheLawfulnessof the Reconstruction
423
on behalf of the states they govern, despite defects in their claim to
sovereign power. As to coercion, I will argue that it is doubtful
whether there was any coercion that mattered,and that even if there
was, the best reading of Article V is that a state's capacityto ratify is
not compromisedby political pressurebroughtto bear by the federal
government.
1. The legal capacityof the southerngovernments.
a) The recognitionpower. For manyyearsAmericancourtsacted
on the assumptionthat the governmentin Taipeiwas the government
of all China, although everyone knew that in fact it was not. But the
Executive,the relevant political branch,recognizedthe Taipeiregime
and that was that. The courts were bound by the political branch's
judgment and would not independently inquire into the question.239
What is true internationallyis also true, the Supreme Court says, domestically.When the political branchesdecide that some political organizationis the governmentof a state of the Union, the judiciarywill
Private people and the courts thus will be
act on that assumption.240
bound by what the Presidentand Congresshave decided whetherthey
The Courtexplainedits decisionto defer to the executivebranch:
The statusof the Republicof Chinain our courtsis a matterfor determinationby the Executive and is outsidethe competenceof this Court.Accordingly,we startwiththe fact that
the Republicand its governmentalagencies enjoy a foreignsovereign'simmunitiesto the
same extent as any othercountryduly recognizedby the United States.
239
National City Bank of New York v Republic of China, 348 US 356,358 (1955).
The standardquotationfromLutheris this passage:
Moreover,the Constitutionof the United States,as far as it has providedfor an emergency
of this kind,and authorizedthe generalgovernmentto interferein the domesticconcerns
of a State, has treated the subjectas political in its nature,and placed the power in the
handsof that department.
The fourthsection of the fourtharticle of the Constitutionof the United States provides
that the United States shall guaranteeto every State in the Union a republicanform of
government,and shall protecteach of them againstinvasion;and on the applicationof the
legislatureor of the executive (whenthe legislaturecannotbe convened)againstdomestic
violence.
Under this articleof the Constitutionit rests with Congressto decide what governmentis
the establishedone in a State.Foras the United Statesguaranteeto each Statea republican
government,Congressmustnecessarilydecide whatgovernmentis establishedin the State
before it can determinewhetherit is republicanor not.And when the senatorsand representativesof a State are admittedinto the councilsof the Union, the authorityof the governmentunderwhichthey are appointed,as well as its republicancharacter,is recognized
by the properconstitutionalauthority.And its decision is bindingon every other department of the government,and could not be questionedin a judicialtribunal.It is true that
the contest in this case did not last long enoughto bringthe matterto this issue;and as no
senatorsor representativeswere elected under the authorityof the governmentof which
Mr. Dorr was the head, Congresswas not called upon to decide the controversy.Yet the
rightto decide is placedthere,andnot in the courts.
Luther,48 US at 42.
240
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[68:375
were rightor not, just as partiesare boundby judgmentswhetherthe
judgmentswere rightor not.
Participantsin Reconstructionwere well aware of this principle,
accordingto whichthe identificationof a legitimatestate government
was a politicalquestionto be finallydecidedby the politicalbranches.
Indeed,my impressionis that duringthe FortiethCongress,Republicans spent much more time endorsingLutherv Bordenthan they did
denouncingDred Scott, suggestingthat on balance they liked Chief
JusticeTaneyafter all.21As announcedin Luther,however,the political question doctrineis too coarse-grainedto resolve the issues presented duringReconstruction,when the Presidentand Congresswere
not of one mind as to the legalityof differentstate regimes.I will develop and evaluate two variantson the doctrine,one of which gives
more weightthan the other to whatthe Presidentdoes while Congress
is mullingthe issue.
241 Lutherarose out of the remarkableevents in Rhode Islandin 1841and 1842knownas
Dorr'sRebellion.Rhode Islandhad gone throughthe revolutionaryperiodwithoutcreatinga
writtenconstitution.In 1841 it was still governedunderthe colonialchartergrantedby King
Charles II in 1663. William M. Wiecek, The Guarantee Clause of the US Constitution 86 (Cornell
1972).The suffragewas limitedto ownersof $134worthof real propertyand theireldest sons
and the legislaturewas apportionedso as to disfavorthe townsthathadgrownin populationin
the firsthalf of the nineteenthcentury,so thatby 1840a ruralminoritycontrolledthe stategovernment.Id at 86-87. In 1841 and 1842 proponentsof a broadersuffrageorganizedtheir own
constitutionalconvention,held theirown referendumon it undertheirown rule of suffrage,declaredthat they had won,and held electionsfor a new state government,in whichtheirleader,
ThomasW.Dorr,was chosenas Governor.Id at 91-95.After Dorr and his supportersmade an
unsuccessfulattemptto take over the Providencearsenalin the nameof theirnew government,
the CharterGovernment'sGovernor,SamuelKing,calledout the militia.Id at 98-99. Governor
Kinghadthe supportof PresidentJohnTyler.In responseto King'srequestfor federalassistance
in puttingdown domesticviolence,Tylerhad declinedto use force while assuringKingthat if
Dorr andhis supportersdid resortto violence,the federalauthoritieswouldsupportKing.Id at
104-07.
Lutheritself was an attemptto bringbeforethe SupremeCourtthe validityof the Dorrites'
attemptto exercisedirectpopularsovereignty.Whilemartiallaw was in force in Rhode Island,
LutherBorden,actingfor the Chartergovernment,hadbrokeninto the houseof MartinLuther,
a Dorrite.Luther,48 US at 34-35. Lutherlaterbroughta trespassactionunderthe federaldiversity jurisdictionin whichBordenjustifiedhis actionson groundsof officialprivilege(including
martiallaw).Id. Lutherrepliedthat Bordenwas not a publicofficerbecausethe lawfulgovernmentat the timewas Dorr's,not the governmentunderthe Charter.Id at 38.The SupremeCourt
held itselfboundto treatthe Chartergovernmentas lawfulandrejectedthe claimfortrespass.Id
at 40,45-47.
In orderto understandthe powerof this formof the politicalquestiondoctrine,it is important to see that the doctrineis not exactlyone of judicialabstention.Rather,it is one of nonjudicialfinalityunderwhichthe courtsare boundby the politicalbranches'judgmentsandmust
decidecases in accordancewiththatjudgment.The Courtdid not dismissLutherfor wantof jurisdiction;it decidedthe case on the meritsbased on whatit took to be the politicalbranches'
decisionas to the identityof the rightfulgovernmentof Rhode Island.If Congresscouldfinally
decidethat the second-roundgovernmentswere lawful,its decisionwouldrenderlegallyirrelevant anyjudge'sor citizen'sview thatthose governmentswerenot lawfulbecauseCongresshad
in creatingthem.
actedunconstitutionally
2001]
TheLawfulnessof the ReconstructionAmendments
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Accordingto the first variant,the President'sdecision concerning
recognitionbinds everyone but Congress,and Congressmay override
what the President has done. If it does not, the President'sdecision
stands.If Congressdecides on a different course,it then must decide
whetherto make its decision retroactiveor to accept as final what was
done under the President'sdispensation.In the political catch-phrase,
the Presidentproposes and Congressdisposes.24Accordingto the second variant,only Congresscan generate a trulybindingrecognitionof
a state government.Because Congressofficiallyblessed only Tennessee's first-roundgovernmentand the ten second-roundgovernments,
for this theory to vindicatethe ThirteenthAmendment it is necessary
to conclude that either Congressor the second-roundgovernmentsof
the states involved had ratified the first-roundratificationsof that
amendment.
In evaluating either variant of the political question thesis, the
main issue is whether recognitionof state governmentsreally is a political question in this sense.This aspect of the political question doctrine is a familiar and long-standingfeature of American constitutional law,so the case for it can be stated briefly.The doctrineattaches
finality to the political branches' decisions on a matter that is very
much about politics,so it is naturalthat the rationaleinvolves both finality and politicality.
Finality,whetherof judgmentsor other governmentaldecisions,is
desirable when the need for a certain and fixed answer prevails over
the attractionof trying again and again to get the right answer.As
Chief JusticeTaney explained in Luther, it is especially importantto
know for certainwhethera political organizationis the governmentof
a state.23That is easy enough to see. The more interesting question
concerningLutheris Taney'swillingnessto assign the role of answering that question to the politicalbranchesand to disclaimit for the judiciary, including his Court.24
One argumentfrpm Luther is simply about timing.In the kind of
tense situationthat is likely to give rise to this sort of problem,the po242 Formulating the point in terms of the President and Congress suppresses a complexity
that needs to be addressed, at least in a footnote. In this context the President is not the only political institution other than Congress, because each House separately may face the question of a
state government's validity. In principle, the question arises every time a claimant presents credentials as a senator or representative, because such claimants are elected under the auspices of
or by an institution of a state government. I will not speculate on what should happen were only
one House to disagree with the President, or were both Houses to do so but be unable to enact
their position as law because they were unable to muster the supermajorities needed to override
a veto.
243 48 US at 38-39 (Grave consequences follow if an operating state government is later
determined to have been unlawful.).
244 Id at 42.
426
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[68:375
liticalbranchesare almostcertainto act first.DuringDorr'srebellion,
the federalofficerwho actuallyconfrontedthe issue and made a decision was the President.PresidentTyler,calledon by GovernorKingof
the establishedChartergovernment,made it knownthat if necessary
he would use the militia to supportKing'sregime.245
For a court then
to come in and interferewould be "a guaranteeof anarchy,and not of
order."26
A deeper reason to allocate this judgment to the political
branchesis that the legitimacyof a state government,although to
some extent a legal question,is also a political question in the nontechnicalsense of that term.It is virtuallyimpossibleto decide a dispute like this withoutdecidingquestionsthat are politicalin the sense
of being normative.In part that is because the applicablestandards
are fuzzy,in partbecausethe standardsmay be to some extent explicitly normative,and in part becauseindividuals'convictionstend to be
so stronglyheld.On the firstpoint,the initialquestionaboutany putative governmentconcernsthe extent of its controlof people and territory.Althoughthat is a questionof fact and easier than a lot of other
questionsof fact,it is by no meansfree from difficulty.On the second
point, it is widely believed that the legitimate government of an
Americanstate mustbe republican,and in a republicthat concepthas
for manypeople strongnormativecomponents.And last it is impossible to read the history of Reconstructionwithout noticing that people's views as to whethera regimewas legitimateclosely trackedtheir
views as to whetherit was desirable.No doubtwhen Republicanssaid
that Tennesseewas loyal and the other ex-ConfederateStates were
not, they meant to say somethingother than that Tennesseewas Republicanand the others were not, but the latter fact stronglyinfluenced views aboutthe formerissue.
Courtsinevitablymake normativejudgments,but doing so puts a
strainon the principlethat they are supposedto enforce legal norms
that are not necessarilytheir own.At some point policy so dominates
an issue that havingjudges decide it is unnatural.The politicalquestion doctrineworksin partby identifyingsuch issues,and accordingto
the Supreme Court the recognitionof state governmentsis one of
them.2
Against all this is a simplebut serioustextualdifficulty.Congress
has the legislativeand the Presidenthas the executivepower,but it is
the judicialpower that has as its centralfunctionthe final resolution
of disputedquestionsof law and fact. If there is a political question
245 See id at 44
(In response to King's request, President Tyler took measures to call out the
militia "if it should be found necessary for the general government to interfere.").
246 Idat43.
247 Id at 42.
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TheLawfulnessof the ReconstructionAmendments
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principle,it is a departurefrom the structurein which those outside
Congress,includingespecially the courts,are not finally bound by the
legal judgmentsthat Congress makes in the exercise of its legislative
function.Moreover,there is an expressiounius problemhere. In a few
instances the Constitutiongives some actor other than a court final
decisional authorityin some dispute.Each House of Congressis the
"judge"of the elections,qualifications,and returnsof its members,and
the Senate has the sole power to "try"all impeachments.2To use the
cliche,when the Constitution'sauthorswantedto make Congressfinal
on some topic,they knew how to say so.
Nonjudicial finality presents one of the hardest questions of
American constitutionallaw, and I will not be able to resolve it to
anyone's satisfaction here (nor resolve it to everyone's satisfaction
anywhere).It should be enough to say that Lutherstates a venerable
and seemingly well-established principle, the arguments for which
must be taken seriously.
Because the political branches were in conflict during Reconstruction,Lutherby itself does not actuallyprovideenough of a political question doctrine to answerthe questionsin this Article.24As suggested above, the doctrine can be extended in two ways. One holds
that what the President does is dispositiveunless Congressoverrules
him, and that if it does so Congress then has the choice whether to
undo what the Presidenthas done. If there is a political questionprinciple for state-governmentrecognition,this is probablythe best form
of it. Both Congress and the President are political actors,and both
must sometimes identify the lawful governmentof a state in order to
perform their constitutionalduties. Congress,however, is entitled to
the pre-eminentrole simplybecause it has the legislativepower,which
is the power to adopt norms.This point is especially strong insofar as
the recognitionpower grows out of the GuaranteeClause.That provision imposes a duty on the United States and, by implication,grants
the necessarypower to carryout that duty.The Necessary and Proper
Clause in turn vests Congress with authorityto legislate in order to
248 See US Const Art
I, ? 5 (Each House is the judge of its own elections.); id ? 3 (Senate is
sole judge of impeachments.).
249 Ackerman
points out that the often-quoted statement in Luther about congressional finality is a dictum, because neither house of Congress ever considered and rejected the credentials of Dorrite senators or representatives. Ackerman, 2 We the People at 443-44 n 23 (cited in
note 8). He suggests that the case's true holding supports presidential authority, because President Tyler, unlike Congress, actually did something. See id. That is true, but it is also true that the
President was exercising power specifically conferred on him by Congress in the exercise of
Congress's power to carry out the Article IV guarantee against domestic violence. Luther, 48 US
at 42-44. Ackerman is thus correct that the holding of Luther does not address the situation in
which Congress and the President are at odds. See Ackerman, 2 We the People at 443-44.
428
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[68:375
carryinto executionall the powersvested in the United States or any
of its officersor departments.20
If this view is correct both amendmentswere ratified by valid
state governments.PresidentJohnson recognizedthe first-roundregimes,both the four he found when he took office and the seven he
helped create,and Congressnever declaredtheir ratificationsinvalid.
It brandedten of those governmentsillegal,but recognizedtheir provisional status and did not purportto delegitimizetheir actions with
respect to the amendment.Congressthen endorsedTennessee'sfirstroundgovernmentand the ten regimesCongresshad broughtinto existence, thus providingvalid ratificationsof the FourteenthAmendment.
The other extension of Luther simply eliminates the President
and holds that only Congressmay speak with final authorityon this
question.If that is rightthen we mustinquireinto the consequencesof
Congress'sdeclarationthat Tennessee'sfirst-roundgovernment,and
the other ten states' second-roundgovernments,entitledthem to representation.It is easy enough to concludethat Congress'simprimatur
relates back with respect to the particularstate governmentat issue.
In identifyinga lawfulstate governmentCongressis performinga judicialfunction,andjudicialactorsoperateon the conceit that they declarewhatthe law alreadywas ratherthanmakingit anew.25
Congress'simprimaturthus validatedTennessee'sratificationsof
both amendmentsand the other ten states' ratificationsof the Fourteenth Amendment.It is harderto say how to treat the other states'
earlierratificationsof the ThirteenthAmendment,ratificationsundertaken by governmentsthat Congressdeemed illegal but provisional.
We can of course be pretty confidentthat the congressionalmajority
would have wanted to ratify those ratificationstoo, but the tricky
questionis whetherthe recognitionstatutesare reasonablyread to do
so. I thinkthe answeris to be foundin the relationshipbetween a provisionalor temporarygovernmentand a permanentgovernment.The
lattersucceedsto and perfectsthe formerratherthansimplyrejecting
it.252
The naturalinference,unless there is some indicationto the contrary,is that the permanentgovernmenttakes up where the provisional governmentleft off, endorsingits decisions and continuingits
250 US Const, Art I
("Congress shall have Power ... To make all Laws which shall be neces-
sary and proper for carrying into Execution the foregoing Powers.").
251 As Justice Scalia
explained in a case about the retroactive effect of judicial decisions,
judges make law, but "they make it as judges make it, which is to say as though they were 'finding' it."James B. Beam Distilling Co v Georgia, 501 US 529, 549 (1991) (Scalia concurring).
252 State v Jarvis, 63 NC 556, 556 (1869) (First-round and second-round governments are
parts of the same system, organized under the same authority.).
2001]
Amendments
TheLawfulnessof the Reconstruction
429
functions.No second-roundgovernmentindicated a desire to repudiate the ratificationof the ThirteenthAmendment.
As Lyman Trumbullunderstood, Luther provides one possible
out
of the difficultiesthat everyone confrontedin the 1860swhen
way
seeking to identifythe lawfulgovernmentsof the southernstates.253
b) The legal capacityof de facto state governments. A recurrent
theme during Reconstruction was that the southern governments
were illegal, bogus,void, and apparentlyunder Persian influence,because they were run by satraps.25Such accusationswere made about
both the first-roundand second-roundgovernments.55
If a political orit
cannot
and cannot ratis
void
act
performany legal
ganization truly
ify a constitutionalamendment.In orderfor either of the amendments
to have been validly ratified, some of those governmentsmust have
been capableof ratification.
On its face the ratificationprocess appearedto be regular.In SecretarySeward'slanguage,all but one of the ratificationscame from an
organizationavowing itself to be, and acting as, the legislature of a
state. (The exception is the Virginialegislature sitting in Alexandria,
whichratifiedthe ThirteenthAmendment;whetherit was actingas the
legislatureof Virginiais a subject of dispute,because its practicalauthoritywas quite limited.) From the documentsthat were received by
the Secretaryof State, one could not tell the difference between the
legislatureof Ohio that sat at Columbusand the legislatureof South
Carolinathat sat at Columbia.
Yet critics of both sets of southern legislaturesmaintainedthat
there were differences so profound that the group in Columbusvalidly could bind the State of Ohio, while their counterpartsin Columbia had no power to act on behalf of South Carolina.I will argue that
253
254
See CongGlobe,40th Cong,2d Sess 3630 (July1, 1868).
See Cong Globe,39th Cong,2d Sess 252 (Jan3, 1867) (Rep Stevensstatingthat"thisis
not a Governmentof kingsand satraps").Referenceto satrapieshad become enoughof a clich6
that PresidentJohnson could make jokes about it during his politically disastrousseries of
speeches in the run-upto the fall 1866 elections.Johnsonexplainedhow he had resisted the
temptationsof powerofferedby the Freedman'sBureaubill:
Withan army,whichit placed at my discretion,I could have remainedat the capitalof the
nation,and with fifty or sixtymillionsof appropriationsat my disposal,with the machinery
to be unlockedby my own hands,with my satrapsand dependantsin every town and village,with the civil rightsbill followingon as an auxiliary,(laughter,}andwiththe patronage
and otherappliancesof the Government,I couldhave proclaimedmyselfdictator.
AndrewJohnson,On receivingthe Proceedingsof the Philadelphia14thof AugustConvention,
at 129 (cited in note 92).
reprintedin McPherson,Reconstruction
255 CharlesSumnersaid that the first-round
governmentswere shamsandbogusand hence
incapableof ratifyinga constitutionalamendment.CongGlobe,39th Cong,2d Sess 1392(Feb 15,
1867).PresidentJohnsonreturnedthe compliment,arguingthat the second-roundgovernments
were "illegitimateand of no validitywhatever."AndrewJohnson,Veto Message(July20, 1868),
reprintedin Richardson,ed, 6 Messagesand Papersof the Presidentsat 653 (citedin note 14).
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[68:375
most of theirobjectionsraiseno real difficulty.Not all can be disposed
of, however,so it is necessaryto confronta fundamentalquestion:may
a politicalorganizationthat rulesa state but that has seriousdefectsin
its claim to do so act on behalfof the state in the ratificationprocess?
My answeris yes.
One set of criticisms,mainly leveled at the first-roundregimes
but applicableto both, is that they were formed throughmeans unknown to or inconsistentwith state law.The conventionsthat organized the first-roundgovernmentsperformedtwo functions,although
not all of them performedboth. One functionwas to set back in motion the machineof loyal governmentthat had been stopped by the
rebellion.The second functionwas to form new state constitutionsor
to amend existing constitutions;this was done by all the first-round
conventions except Virginia's.None of those conventions,however,
was summonedin accordancewith existingstate law.
This is no objection.Before the war, three states had amended
their constitutions through processes inconsistent with the mechaIn many more the legisnisms providedby their priorconstitutions.25
lature had called a constitutionalconvention even though it had no
explicit power to do so.57Discussingthe first three examples,Judge
Jamesondrew what seems to me the correct conclusion:these were
revolutionaryacts.8 They were not violent, at least not overtly,but
they were revolutionaryin that they were illegalexercisesof power.25
Yet all three statesremainedcomfortablyin the Union, as did the
many that took the less doubtfulbut still troublesomestep of amending their constitutionsthroughconventionsthat were not called pursuant to any specific authority.It is not hard to explain this in terms
familiarto Americanconstitutionaltheory.The people of a state are
sovereign, at least within the limits set by the Constitutionof the
United States, and the sovereign is superiorto the law.The people
256 John Alexander Jameson, A Treatise On the
Principles of American Constitutional Law
and Legislation: The Constitutional Convention; Its History, Powers, and Modes of Proceeding
211-16 (Myers1869).The threewere Pennsylvaniain 1789,Delawarein 1792,andMarylandin
1850.Id at 211.In each a conventionwas calledalthoughsome othermechanismwas identified
by the stateconstitutionas the exclusivemodeof amendment.Id.
257 JudgeJamesonlistedtwenty-fivesuchconventionswhenhe wrotein 1869.Id at 209 n 1.
He distinguishedthose conventionsfromthe threejust discussedon the groundthat callinga
conventionis a legitimateexerciseof a legislature'sgenerallegislativepower.Id at 209.
258 Id at 215-16.
259 In a sense the experienceof those statessupportsAckerman'slargerthesisthatAmericanssometimeschangetheirconstitutionsthroughextralegalmeans.Ackerman,2 WethePeople
at 14,22-23 (citedin note 8). In a sense it does not,becausethe extralegalchangesin thosestates
whichcouldbe taken
not simplyamendmentsto old constitutions,
resultedin new constitutions,
to indicatethat whenthe people exercisetheirultimatesovereigntythey do so in no uncertain
terms.In anyeventthisArticleis concernedwiththe narrowerquestionwhetherthe Reconstruction amendmentscan be accountedfor only as extralegalamendments.
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TheLawfulnessof the ReconstructionAmendments
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make constitutionsand can unmakethem. In doing the latter,they can
use the regularforms set out in the standingconstitutionor such other
forms as they choose.26
Which means that the weightier objections will come from federal law,which must somewherecontain the conditionsthat a political
organizationmust meet to qualify as the legally effective government
of a state of the Union. Two suggested conditions that came up repeatedly during Reconstructionshould be treated together because
they have a similar structure.These are the requirementsof loyalty
and republicanform.
Article VI indicatesthat a state government,in orderto qualifyas
such,must throughits law recognizethe supremacyof federallaw.26Its
officers must in general be bound by the Article VI oath.22Hence
whatever else they were, the organizationsthat sent senatorsto Richmond were not governmentsof United States.Article VI imposes a
necessarycondition for loyalty:a state governmentmust representitself as such in its law.The Confederategovernmentsdid not.
But is that a sufficient condition?The most fundamentalobjection Republicansraised to the first-roundgovernmentswas that they
were not loyal.26They were nothing but Confederategovernmentsin
disguise.6 Many Republicansbelieved that the state institutions,like
the people who ran them, had falsely asserted that they adhered to a
Union they intended to destroy.It was as if in 1863 the Confederate
legislatureshad come up with a scheme to pretend to rejoin the Union, send senators to Washington,and paralyzethe opposition politically.
260 The issue came
up duringthe debateson fundamentalconditionsin the readmissionof
the southernstates.Discussingthe effectivenessof entrenchingprovisionsin state constitutions,
SenatorMortonnoted that the rightof the people to changetheirconstitutionis inalienable,and
several states had engagedin constitutionalchangecontraryto priorlimitationson the amendment process.Cong Globe,40th Cong,2d Sess 2742-43 (June 1, 1868).SenatorEdmundsinterjected that such changeswere an exercise of the "rightof revolution,"but he did not deny that
the people retainedthatrightwithrespectto the state constitutions.Id at 2743.
261 US Const,Art VI ("ThisConstitutionand,the Lawsof the United States ... shallbe the
supremeLaw of the Land.").
262 Id ("[T]heMembersof the severalState Legislatures,and all executiveandjudicialOfficers ... of the several States,shall be boundby Oath or Affirmation,to supportthis Constitution.").The qualifier"in general"reflectsthe point that an entire state would not be paralyzed
were it discoveredthat a small numberof officers,contraryto the state's law and policy,had
failed to subscribeto the requisiteoath or affirmation.
263 See, for example,Cong Globe,39th Cong,2d Sess 159 (Dec 17,1866) (Sen Trumbull);
id
at 626 (Jan21,1867) (Rep Higby);id at 814 (Jan28,1867) (Rep Collum);id at 1100(Feb 8,1867)
(Rep Hotchkiss).
264 In January1867,for example,RepresentativeBroomallcomplainedthat southernloyalists were being ruled by "organizationsas thoroughlyrebel as those whichformedconstituent
parts of the late confederacy."Id at 349 (Jan 8, 1867). About ten days later Representative
Scofieldchargedthatthose governmentswere"onlythe confederategovernmentsrevived."Id at
597 (Jan19,1867).
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That would be a serious problem,and one would hope that the
Constitutionprovidessome remedyfor it. Very likely there is such a
remedy,but it does not consist of a self-executingrule that disloyal
governmentsare legallyineffectiveeven if they complywith the forms
of Article VI. First,the Constitutiondoes not indicate this explicitly.
Second, once we move beyond the requirementsof Article VI, the
concept of loyalty becomes both vague and difficult to implement.
Consider the Virginiagovernmentthat convened in the late fall of
1865. No doubt many of its legislators and the voters who elected
them were unrepentantConfederates.A few mayhave been repentant
Confederates.Many were probablyConfederateswho had given up
on secession and were prepared,however grudgingly,to try to make
the Union thing work.Whateverthe legislatorsmay have felt, their
Governorwas a rock-solidUnion man. To implementthe extended
notion of loyalty,it wouldbe necessaryto have at least a roughidea of
how muchtinctureof treasonit takes to rendera whole institutionincapable.It would then be necessaryto know at least somethingof the
evil that lurks in the hearts of state officers,because by hypothesis
they will have swornor affirmedto supportthe Constitution.It would
be very troublesometo concludethat the Constitutionhad a normthis
squishyon a questionthis fundamental.
To rejectdisloyaltyas a criterionof state governmentalauthority,
however,is not to say that the Constitutionprovidesno response to
ostensiblyloyal state governmentsthat are runby traitors.The United
States has power to put down rebellion,and Congresshas power to
And while it would be extraordinaryfor Conlegislate to that end.265
to
gress legislate that a seeminglyregularstate governmentwas without legal power becauseit was in fact an instrumentof treason,rebellion presents extraordinaryproblems.When it occurs,Congressmay
take the extremestep of suspendingthe writof habeascorpus,thereby
temporarilywithdrawingnaturallibertyitself fromjudicialprotection
and placingit in the hands of the executive authority.266
Suspendinga
state governmentis also an extremestep,but as the CivilWardemonstratesthe Constitutioncan confrontsome prettyextremetimes.
Whilethis approachdoes not disposeof the difficultiesin judging
the loyaltyof state governments,it does largelyremovethem fromthe
legal realm.Of course,Congress'spower to invalidatea state govern265
See, for example, Prize Cases, 67 US (2 Black) 635, 666-67 (1863) (While civil wars are
not formally declared, the actions of the Confederate States created a state of war nonetheless.).
266 "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in
Cases of Rebellion or Invasion the public Safety may require it." US Const, Art I, ? 9, cl 2. There
is no expressio unius argument here, because the Suspension Clause is not the source of the authority to suspend the writ; it is a limitation on that authority,the existence of which is assumed.
The Constitution takes it for granted that the United States may suppress rebellion.
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TheLawfulnessof the ReconstructionAmendments
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ment in order to suppressrebellion is subject to some constitutional
In order to exercise
limits, as is its power to charternational banks.267
the former authority,Congress must have good grounds to believe
that a state government is an instrument of treason. But whether
Congress reasonablycould reach a conclusion and whether the conclusion is true are very different questions,as constitutionaldoctrine
has demonstratedever since M'Culloch v Maryland.268
And while it is
dangerous to give any institution the power to overturn a state government,it is dangerousto give any institutionthe power to suspend
the writ of habeas corpusor indeed to declarewar.
Similar reasoning applies to the objection that the first-round
governmentswere not republicanin form. Many proponents of congressional reconstructionmaintained that some or all of those governments were unrepublicanbecause they disenfranchisedso many
Whatever one makes of that argument,the question need
citizens.269
not be resolved in order to decide whether the GuaranteeClause invalidated the first-roundgovernments.As the Supreme Court subsequentlyheld, that provisionis not self-executing.27
The Clauseis formulated,not as a limitationon the states like the
ContractsClause,but as a duty of the United States.2 In addition to
the verbal distinction,the imposition of a duty with a corresponding
implied power suggestsdiscretionin carryingout the duty.The reason
the Constitution would tell Congress to do something rather than
simply doing it directlyis that the best way to guaranteea republican
form of governmentis not alwaysobvious.In particular,it is not obvious that invalidationof official acts is a good idea. As Chief Justice
Taneyexplainedin Luther,to say that a governmentwas unlawfulhas
immense and damagingconsequences,usuallymuchmore so than saying that some particularstatute is invalid.22So Congressmay remedya
267 See M'Cullochv Maryland,17 US (4 Wheat)316,421 (1819) (holdingthatCongressmay
utilize all means whichare appropriateto achieve a legitimateend and which"consistwith the
letter and spiritof the constitution").
268 Id at 413-19
(Congresshas discretionin decidingwhether a means is necessaryand
a
out
constitutional
to
end.).
carry
proper
269 RepresentativeBroomallpresenteda sophisticatedformof this argument,one designed
to deal with the obviousobjectionthat in some states most of the adult citizenscould not vote.
He maintainedthat a republicwas a governmentin which all citizens have suffrageeither directly or throughsomeone who representsthem because of "legal,social, or family relations."
See Cong Globe,39th Cong,2d Sess 350-51 (Jan8, 1867).Althoughslaveshad been partof their
masters'households,freed people were not and had no one to representthem.Theywere therefore entitledto vote, and a state in whichthey couldnot vote was unrepublican.Id.
270
See Pacific States Telephone and Telegraph Co v Oregon, 223 US 118 (1912) (Enforce-
ment of GuaranteeClauseis with Congress,not the judiciary.).
271 "TheUnited States shall
guaranteeto every State in this Union a RepublicanFormof
Government."US ConstArt IV,? 4.
272 48 US at 38-39 (holding,since the decision whetherthe chartergovernmenthad legal
existence could lead to serious results,the Courtmust "examinevery carefullyits own powers
434
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[68:375
failure of republicanform in a varietyof ways that need not include
completelydisruptingthe rule of law in a state.
As to disloyaltyand unrepublicanform,the properquestionthus
is not about the state governmentsthemselvesbut about what Congress did. In particular,the question is whether Congressretrospectively invalidatedthe acts of the ten state governmentsthat the first
MilitaryReconstructionAct declaredto be illegal.It did not. The Act
went on to recognizethose governmentsas provisionaland to assume
that they would continue to operate on a provisionalbasis.73And of
course it is difficultto believe that anyonewho supportedmilitaryreconstructionmeantto reachout andundo the southernratificationsof
the ThirteenthAmendment.
Fromthe standpointof constitutionalarchitecture,the preceding
difficultiesare small beer comparedto the centralfact about Reconstruction:it was almost all federallydriven.Of the twenty-onereconstructedgovernments,twentywere in substantialmeasurethe resultof
federal action.Three first-roundgovernmentswere organizedpursuant to PresidentLincoln'sproclamationof December 8, 1863,27and
seven under PresidentJohnson'splan, typifiedby his North Carolina
proclamationin May 1865.75All ten second-roundgovernmentswere
organizedunderthe ReconstructionActs.276
OnlyVirginia'sfirst-round
was
of
the
self-reconstruction.
government
product genuine
The federal role was unusualand was highlycontroversialat the
time, and its legitimacyis one of the centralquestionsin this Article.
This is a subtle problem,one that requiressome carefulanalysissimply to see what the questionsare.Muchink was spilled as to whether
the President and Congresswere acting within the powers granted
them by the Constitution.Opponents of presidentialaction maintainedthat the Commanderin Chiefwas supposedto put down rebellion by militaryforce but had no role in revivingcivil government.27
Opponents of congressionalaction maintainedeither that Congress
had no power that ever could be used to rebuilda state government,
or that if it had such a power in the GuarantyClause the conditions
for its use had not been fulfilled.27
before it undertakes to exercise jurisdiction").
273 See 14 Stat 428,429
(Mar 2,1867) ("[A]ny civil governments which may exist [within the
ex-Confederate States] shall be deemed provisional only.").
274 See Richardson,
ed, 6 Messages and Papers of the Presidents at 213-15 (cited in note 14).
275 See id at 312-14.
276 See 14 Stat 428
(Mar 2, 1867) (first Military Reconstruction Act); 15 Stat 2 (Mar 23,
1867) (first supplementary Military Reconstruction Act).
277 See, for example, McPherson, Reconstruction at 84-85 (cited in note 92) (Report of Joint
Committee arguing that President Johnson exceeded his powers in creating new state governments).
278 See, for
example, id at 97 (Report of Joint Committee minority, arguing that Congress
2001]
TheLawfulnessof the Reconstruction
Amendments
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In this form the argumentabout federal power is irrelevant.An
act by a federal officer or institutionin excess of constitutionalpower
is a legal nullity;that is a first principleof the Constitution.27
Hence if
or
the
ultra
their
acts
President
acted
could
have no
vires,
Congress
in
and
could
not
confer
legal effect,
particular
sovereign authorityon
a state government.State governments,however, derive their sovereign power from the people, not from any act of President or Congress. Because the states do not rely on federal power, the question
whetherfederal power was availableis beside the point.
This is not to say that federal involvement in state formation is
irrelevant,only that the question is not whether the federal actors
were within their legal authority.Rather,the question is whether the
federal action violated an implicit affirmativelimitation in favor of
state autonomy,and if it did whether the resultingstate regimes were
legally effective nevertheless.Congressionalreconstructioninvolved a
majorfederal interferencewith state autonomy.Although the Reconstruction Acts do not mention bayonets, their implication is clear
enough. State governmentsorganizedby the electorates describedin
the legislation would be recognized as legitimate,which meant that
those governments would be entitled to federal protection against
domestic violence under Article IV.28Attempts to resist the new regimes' authorityon the ground that the earlier governmentswere legitimate and these were usurpationswould get the treatment President Tylertold Governor King he would give to Governor-pretender
Dorr.28Only this time it would be the insurgentswho would get federal support.82Moreover,the ReconstructionActs promisedrepresenhas no power to interferewith a state'schoice of government).One of the primaryfunctionsof
the destroyed governmentsthesis was to support congressionalaction under the Guaranty
Clause.The argumentwas that if a state has no governmentat all then Congress'sobligationto
guaranteea republicanform of governmententailscreatinga governmentthat will be republican.
279 See, for example,Marburyv Madison,5 US (1 Cranch)137,176 (1803) ("[A]nact of the
legislature,repugnantto the constitution,is void.")."Thesanctionof nullityis pervasivein the
whole theoryof Americanpubliclaw."HenryM. Hart,Jr.andAlbert M. Sacks,TheLegalProcess: Basic Problems in the Making and Application of Law 154 (Foundation 1994) (William N.
Eskridge,Jr.and PhilipP.Frickey,eds).
280 See US ConstArt IV,? 4 ("TheUnited Statesshall ... protect[everystatein this Union]
againstInvasion.").
281 See Luther, 48 US at 44.
282 I focus on congressionalreconstructionbecausethe case againstwhatthe Presidentsdid
is much weaker. For one thing, their interferencewith state suffragerules was on stronger
groundbecause it was plausiblytied to suppressionof insurrection.Lincolnwas dealing with
still-flagrantrebellionand Johnsonwith a rebellionthat had just been put down. Keepingthe
disloyalout of state governmentsthat were being reorganizedwas a reasonableway to fightthe
rebellion, and the loyalty oaths were designed to do that. Moreover,the actual influence of
presidentialcommandson the resultingstate regimeswas more limitedthan those of Congress.
PresidentLincolnin his proclamationsaid nothingaboutsuffragerules underthe new constitutions,see Richardson,ed, 6 Messagesand Papersof the Presidentsat 213-15 (cited in note 14),
436
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[68:375
tation in Congressto states in which new governmentswere established,thus creatinga possiblyunlawfulincentiveto accepta new constitution.283
Whether that action really violated constitutionalprinciplesof
state autonomyis a hard question.If Shellabargerwas right and the
states were without lawful governments,then what Congressdid is
easy to defend.4 Congresswas obligedto help the states get a republican form of government,and in decreeingrace-blindsuffrageit was
not displacingstate law because there was no state law. Moreover,
anyonewho believes that Congressor the Presidentlegitimatelycould
have recognizedGovernorDorr should believe that the Reconstruction Acts were valid. In South Carolinaas in Rhode Island a new,
broaderelectorate claimed legitimacythrougha referendumcarried
on outsideof ordinarystate law.
It is not necessaryto resolve these deep questions,because it is
easier to resolve an even deeper question:whatdoes it take for a state
government,whateverits flaws,to take legally effective action on behalf of the state? I will suggestthat a de facto governmentcan act for
the state, and sometimes even limited de facto authority will be
enough.(The qualificationconcernsthe Virginiagovernmentat Alexandria.)
A standardprincipleof internationallaw is that a de facto government can bind a state internationally,even though that government's authorityis usurped.As John Bassett Moore wrote in 1906,
"Thestate is boundby engagementsenteredinto by governmentsthat
have ceased to exist; the restored governmentis generallyliable for
the acts of the usurper."25Debts contractedand treatiesentered into
and President Johnson explicitly made the point that once the conventions had met the question
of suffrage would be in the hands of the states, where it had always been, see, for example, id at
313 (North Carolina's proclamation). They did not try to reshape the states' electorates over the
long term, so the federal impress on the resulting state governments was much fainter.
283 The issue of federal political coercion through denial of representation in Congress thus
enters into this problem twice. The second-round regimes were created in response to that stick
(or carrot, if Congress was justified in what it did), and they ratified in response to the same incentive.
284 See Cong Globe, 39th Cong, 1st Sess 142 (Jan 8, 1866).
285 John Bassett Moore, 1 A
Digest of International Law 249 (GPO 1906). Moore went on to
quote an 1827 letter from Secretary of State Henry Clay to the American Minister to France, laying out the United States's position as to the restored royal government's responsibility for the
depredations of Napoleon:
It is not necessary to discuss the question of usurpation which is put forward. It is sufficient
for us that those acts and depredations proceeded from the actual Government of France;
and that the responsibility of France to make reparations for wrongs committed under the
authority of any form of government which she may have adopted, or to which she may
have submitted, from time to time, can not be contested.
Id at 249-50. Moore then quoted a letter of the same tenor from Clay's successor, Martin van
Buren. Id at 250.
2001]
TheLawfulnessof the ReconstructionAmendments
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by the regime with practicalcontrol bind future governments,including future governmentsthat come to power denying that the earlier
regime was lawful. During the nineteenth century, the Supreme
Court's favorite illustrationof this principle seems to have been the
internationaltreatment of the English Commonwealthunder Cromwell. The crowned heads of Europe were not much enthused about a
soldier who had put a King to death, but they maintainedrelations
with Cromwell's government, and the restored monarchy claimed
Cromwell'sacquisitionsand accepted the responsibilitieshe had undertaken.28
One especially striking application of the underlying principle
was found in the domestic public law of Great Britainas describedby
Blackstone.Discussingthe treasonstatute,Blackstoneexplained:
[t]he king here intended is the king in possession,without any respect to his title;for it is held, that a king de facto and not de jure,
or, in other words, an usurper that hath got possession of the
throne, is a king within the meaning of the statute:as there is a
temporary allegiance due to him, for his administrationof the
governmentand temporaryprotectionof the public.287
Kings seem to think that killing kings, even usurpers, should be
discouraged.
ChiefJusticeWilliamHowardTaft,sittingas an internationalarbitrator,quotedMoore and
appliedthis principlein an arbitrationbetween Great Britainand Costa Rica for claimsarising
fromthe de facto governmentof FredericoTinocoin CostaRica.See ArbitrationBetweenGreat
Britainand CostaRica, Opinionand Awardof WilliamH. Taft,Sole Arbitrator(Oct 18, 1923),
reprinted in Judicial Decisions Involving Questions of International Law, 18 Am J Int L 147,149-
51(1924).
286 See, for example,Thorington v Smith, 75 US (8 Wall)1,8 (1869):
Anotherexamplemay be found in the governmentof Englandunderthe Commonwealth,
firstby Parliament,and afterwardsby Cromwellas Protector.It was not, in the contemplation of law,a governmentde jure,but it was a governmentde facto in the most absolute
sense.It incurredobligationsand made conquestswhichremainedthe obligationsandconquestsof Englandafterthe restoration.
See also Williamsv Bruffy,96 US (6 Otto) 176, 185 (1878) (Treatiesand contractsof governmentslike Cromwell'sare usuallyenforcedandits acquisitionsare retained.).
287 WilliamBlackstone,4 Commentaries
* 77. Blackstonewent on to give an example.
[A]nd, therefore,treasonscommittedagainstHenryVI [grandsonof Henry Bolingbroke
who usurpedthe thronefrom RichardII and became HenryIV] were punishedunderEdward IV [whose ancestorhad the rightfulclaim to the throne after RichardII's death],
though all the line of Lancaster [Henry IV-Henry VI] had been previouslydeclared
usurpersby act of parliament.But the most rightfulheir of the crown,or king de jure and
not de facto, who hath never had plenarypossessionof the throne,as was the case of the
house of Yorkduringthe three reignsof the line of Lancaster,is not a kingwithinthis statute, againstwhomtreasonsmay be committed.
Id.
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[68:375
The logic of the de facto principlehas not been lost on the Supreme Court of the United States.One obscure but very instructive
exampleis a remarkableWaiteCourtcase, Phillipsv Payne.' In 1789
Virginiaceded to the United States some territoryon the Potomac
that wouldformpartof the Districtof Columbia.89
Virginia'sdonation
became the District'sCountyof Alexandria(Maryland'scontribution
In July1846Congresspassedan
becamethe Countyof Washington).290
act authorizinga vote by the residentsof AlexandriaCounty to determinewhetherthe Countyshould be ceded back to Virginia,and it
was.29Almost thirtyyearslater an Alexandriataxpayerchallengedthe
retrocession,arguingthat Congresshad no power to let go of any of
the District,and that thereforeVirginiahad no power to levy taxes in
Alexandria.92
The Courtdid not reach the meritsof retrocession.Insteadit rejected the taxpayer'sclaimbecause"[t]heState of Virginiais de facto
Both Virginia and the
in possession of the territoryin question."293
United Stateswere satisfiedwith the transaction,and if the taxpayer's
argumentwere accepted
serious consequences would follow....
[T]axes have been ille-
gally assessed and collected;the election of public officers,and
the paymentof theirsalaries,were withoutwarrantof law;public
accountshave been improperlysettled;all sentences,judgments,
and decrees of the courts were nullities,and those who carried
them into execution are liable civilly,and perhapscriminally,accordingto the natureof whatthey have severallydone.29
The parade of horribles was turned back, however, because a
"governmentde facto, in firm possession of any country,is clothed,
while it exists,with the same rights,powers,and duties,both at home
and abroad,as a governmentdejure."29
288 92 US 130 (1875).
289 Id at 131.
290 Id.
291 Id.
292 Id at 131-32.
293 Id at 133.
294 Id.
295
Id. Justice Swayne elaborated the point. A de facto government
may send ambassadors and make treaties. Such treaties bind the nation and descend in full
force upon any succeeding government that may be established. The assailants of a king de
facto in England are liable to be punished for treason.... The legislative and judicial authorities called into existence may proceed as if the prior government had not been displaced. All municipal functions may be performed without regard to the origin of the new
policy. Cromwell's ambassadors were received everywhere. Hale accepted from him the
place of a judge of the common pleas. After the Restoration, Charles II made him Chief
Baron of the Exchequer, and subsequently Chief Justice of the King's Bench. The Code
Napoleon was the work of a ruler whose government arose amid the ruins of a revolution,
2001]
TheLawfulnessof the Reconstruction
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Maybe when he wrote that Justice Swayne,a Lincoln appointee,
had been thinkingabout his Court'sconduct duringthe great crisis of
the Union and its aftermath.Of most interest here is the fact that the
Supreme Court of the United States, apparentlywithout missing a
beat, treated the first-roundand then the second-roun'dgovernments
as if they were legally effective.296
When the war broke out, the Supreme Courtplaced cases from the southerncircuitsand the southern
state courts on hold. They were deferred,but not dropped from the
docket. Then in February1866 the Court restored those cases to the
docket and called them in the regularorder.
One such case was McGee v Mathis,297
which came up on a writ of
error to the pre-secession Supreme Court of Arkansas.298
It was held
on the docket, then finally argued in 1867. The Supreme Court reversed and remanded the case with instructionsto enter a decree in
conformity with its opinion.29When the remand order was entered,
the Supreme Court of Arkansaswas that of the Lincoln government.
Another example of this configuration came shortly thereafter in
Locke v New Orleans. ?Locke affirmed a judgment entered by the
When Locke was depre-secession Supreme Court of Louisiana.30'
cided Louisianawas underits first-round,presidentially-reconstructed
government.Those cases came from the pre-secessionstate judiciaries
and the Court sent them back to a court of the first-roundgovernments.
A slightlymore complicatedseries of events arose with respect to
a case between Reuben White and Elijah Cannon in Louisiana. In
January1861 the LouisianaSupremeCourtdecided a lawsuitbetween
them.302
A writ of error to the Louisiana court was filed with the Suof the United States on November 20, 1866.33A motion
Court
preme
to dismisswas arguedon February7,1868, and the meritswere argued
and was subsequentlyoverthrown.The governmentsof both these rulerswere doubtlessregardedby the other governmentsof Europeas only de facto.
Id at 133-34.
296 SenatorReverdyJohnsonof
Maryland,an eminentmemberof the SupremeCourt'sbar,
noticed what the Courtwas doing and discussedit duringthe debates on the first MilitaryReconstructionAct. He maintainedthat the executive and judicialbrancheshad recognizedthe
first-roundgovernments,pointingout that the Courtwas "entertainingappealsand writsof error"from the superiorcourtsof the southernstates.Cong Globe,39th Cong,2d Sess 1379 (Feb
15,1867).
297 71 US (4 Wall)143 (1866).
298 Id at 144.
299 Id at 158.
300 71 US (4 Wall) 172 (1866).
See New Orleansv Locke,14 La Ann 854,854 (1859) (holdingthatthere is no provision
of law fixingthe periodof prescriptionof a tax bill at five years).
302 Cannonv
White,16 La Ann 85 (1861).
303 Docketsof the
SupremeCourtof the UnitedStates:August9, 1860-October29, 1872,No
5823 (NationalArchives1954).
301
440
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[68:375
on March26 of that year.3 Less than two weeks later,on April 6, the
SupremeCourtaffirmedthe judgmentbelow.05Thatcase came either
from a pre-secession court or a first round court, depending on
whether one looks at the decision or the writ of error,and was sent
backto a first-roundstate court.6
In similarfashion the Courtwas preparedto take a case from a
first-roundstate court and remandto its second-roundsuccessor.It
did that in SteamboatBelfastv Boon & Co.307
Thatcase was decidedby
the Supreme Court of Alabama under the Johnson governmentin
1867,after that governmenthad been determinedby Congressto be
illegal and provisionalonly. On October29,1867, a writ of errorwas
filed with the Supreme Court.9 The case was argued on March23,
1869, after Alabama'snew constitutionhad gone into effect and the
On April 12, 1869, the
state had been restored to representation.30
of
the
first-round
Alabama
court
was
reversedand the case
judgment
remandedto the second-roundcourtwith directionsto dismiss.3'
Not only was the Courtpreparedto remandto first-roundor second-roundstate courts,it apparentlywas preparedto remandwithout
involved a
knowingwho would receive its mandate.Paul v Virginia312
statuteregulatinginsurancecorporationsthat was passedin February
1866by the same legislaturethat had adoptedVirginia'sBlack Code.313
Paul,agent of a New Yorkinsurancefirmthat had been unableto obtain a Virginialicense,was prosecutedfor conductingbusinessin Virginia without the license.4 He was convicted in a Virginia Circuit
Court,and the SupremeCourt of Appeals of Virginia,organizedunder the AlexandriaConstitutionof 1864, affirmedthe conviction.A
314
304 Id.
305 White v Cannon, 73 US
(6 Wall) 443 (1867). Perhaps the most interesting feature of the
case is the fact that the decision under review was rendered a few days after Louisiana's ordinance of secession was adopted. Justice Field, speaking for the Court, said that this was not important because "[t]hat ordinance was an absolute nullity, and of itself alone, neither affected the
jurisdiction of that court [the Supreme Court of Louisiana] or its relation to the appellate power
of this court." Id at 450.
306 Louisiana's second-round constitution was ratified, and officers under it were elected, on
April 16 and 17,1868. Taylor, Louisiana Reconstructed at 158 (cited in note 41).
307 41 Ala 50
(1867).
308 See 14 Stat 428,428
(Mar 2, 1867) ("[N]o legal State government[ ] ... now exists in the
rebel State[ ] of... Alabama.").
309 Dockets
of the Supreme Court of the United States at No 5980 (cited in note 303).
310
Id; Fleming, Civil Warat 550-52 (cited in note 178).
311 Dockets
of the Supreme Court of the United States at No 5980 (cited in note 303). Woodruff v Parham, 75 US (8 Wall) 123,123-24 (1868), has a similar procedural history.A writ of error
to the Supreme Court of Alabama was filed on November 6, 1867. See Dockets of the Supreme
Court of the United States at No 5989. The case was argued on October 12 and 13, 1869, and the
judgment was affirmed on November 8 of that year. Id.
312 75 US
(8 Wall) 168 (1870).
313 See
Fairman,6 History of the Supreme Court at 110-15 (cited in note 137).
314 See
Paul, 75 US (8 Wall) at 169.
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TheLawfulnessof the Reconstruction
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writ of error was filed on November 16, 1867, after that government
had been declared illegal but while it was still in existence, and the
case was argued over several days in October 1869.315
The Court affirmed the judgment below on November 1, 1869, after the secondround governmenthad been organizedbut before Virginia'snew Supreme Court of Appeals had met for the first time and before Congress had declaredthat Virginiahad a republicanform of government
that entitled it to representationin the federal legislature.316
The Court
thus had remanded the case to whatever tribunalwas sitting as the
highest court of Virginia.
None of the gyrations in state government, and none of the
doubts about the legality of state governments,seemed to bother the
Courtin its practicaloperations.In an opinion on circuit,Chief Justice
Chase allowed himself to express a little puzzlement as to how the
Pierpont governmentof Virginia,which had been able to consent to
the formation of West Virginia, had become provisional.37Those
doubts,and whatever doubts other justices may have had about what
was going on, do not seem to have matteredwhen it came to deciding
cases. Instead, the Court accepted writs of error from whatever state
court seemed to be in charge,and remandedcases to whatever state
court seemed to be in charge.
From the Court'sactions we cannot, of course,be sure about the
Justices'thinking.Maybe a majoritybelieved that the first-roundgovernmentswere genuinelylawful and that the courtswere bound under
Lutherby Congress'sendorsementof the second-roundgovernments.
We have a window into the Justices' thinking,however, because of
Texasv White.31Whitewas brought on behalf of Texas in the Court's
originaljurisdiction.It was a suit in equity to recover United States
governmentbonds issued to the State of Texasand sold to privatepersons by the Confederatestate government.Before proceedingto the
merits, Chief Justice Chase sought to assure himself that Texas was
still one of the United States and that it had a governmentthat could
prosecutethe suit. In discussingthe first issue the Courtmade its most
famous statement about the nature of the Union, rejectingboth Calhounismand Stevens-thought:
315
316
Dockets of the Supreme Court of the United States at No 6000 (cited in note 303).
Id. Paul had challengedhis convictionon constitutionalgrounds.The Courtapparently
had no problemwith affirminga first-roundstate court'sdecisionon such an issue.Paul,75 US
(8 Wall)at 177,185.
317 "It is unnecessaryto discuss here the
question whether the governmentof Virginia,
whichseems to have been not provisional,but permanent,when transferredfromAlexandriato
Richmond,became provisionalunderthe subsequentlegislationof congress...." Griffin'sCase,
11 F Cas7,27 (CCDVa 1869).
318 74 US (7 Wall) 700 (1868).
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Not only, therefore,can there be no loss of separate and independent autonomyto the states, throughtheir union under the
Constitution,but it may not unreasonablybe said that the preservationof the states,and the maintenanceof their governments,
are as muchwithinthe designand care of the Constitutionas the
preservationof the Union and the maintenanceof the National
government.The Constitution,in all its provisions,looks to an indestructibleUnion, composedof indestructibleStates.'9
Thatwas good, moderateRepublicanorthodoxy,but the identity
of Texas'sgovernmentwas anotherquestion:"Butin orderto the exercise,by a State,of the rightto sue in this court,there needs to be a
State government,competent to represent the State in its relations
with the National government,so far at least as the institutionand
Whenthe case was decidedTexas
prosecutionof a suit is concerned."320
was still undermilitaryrule pursuantto the ReconstructionActs,with
a Governor appointed by the commandinggeneral to replace one
elected under the first-roundconstitution,who had replacedthe provisional governor appointed by President Johnson.3'Chief Justice
Chase recognizedthat there were legal difficultieswith all three,but
maintainedthat the Court did not have to addressthose difficulties.
After describingthe presidentialreconstructionthat produced the
first two Governors,he went on: "Whetherthe actionthen taken was,
in all respects,warrantedby the Constitution,it is not now necessary
to determine."322
The same was true for congressionalreconstruction.
"Nothingin the case before us requiresthe court to pronouncejudgment upon the constitutionalityof any particularprovisionof these
2
acts."
Whichleaves us to wonderhow any of the three Governorscould
have taken a legallyeffectiveact,if the constitutionalityof theiraccession to power was still an open question.The answerseems to have
been their de facto authority.Right after disclaimingany need to pronounce on the ReconstructionActs,the ChiefJusticepointedout that
in those acts "the governments,which had been establishedand had
been in actual operationunder executive direction,were recognized
by Congress as provisional,as existing, and as capable of continu319 Id at 725.
320 Id at 726-27.
321 PresidentJohnson
appointedA.J.Hamiltonprovisionalgovernorof Texasin June1865,
id at 707,andJ.W.Throckmorton
was subsequentlyelected Governorof the first-roundgovernauthorizedinstitutionof the suit on behalfof Texas.Id at 708-09.
ment,id at 708.Throckmorton
GeneralSheridandeposedThrockmortonand appointedElishaM. Pease pursuantto the ReconstructionActs,andPeaserenewedthe appointmentof counselto maintainthe suit.Id at 709.
322 Id at 729-30.
323 Id at 731.
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TheLawfulnessof the ReconstructionAmendments
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Then came the conclusion,which again disclaimeddefinite inance."24
into
quiry
legality.
Each of the three [Governors]exercised executive functionsand
actuallyrepresentedthe State in the executive department.In the
case before us each has given his sanction to the prosecutionof
the suit, and we find no difficulty,without investigatingthe legal
title of either to the executive office, in holding that the sanction
thus given sufficientlywarrantedthe action of the solicitor and
counsel in behalf of the State.325
The exercise of actual power made it unnecessaryto investigatelegal
title.
If any reader of Texas v White had lingering doubts about the
strengthof the de facto principle,the Chief Justicepresentlydispelled
them.After resolvingthe jurisdictionalquestion,he turnedto the merits, and the first issue on the merits was whether the bonds had lawfully been sold by the Confederatestate governmentof Texas.The answer was that they had not, but that answerdid not follow because the
Confederate Texas government was wholly without legal authority,
even though it was of course quite illegal. The de facto principle is
strong,and but for the Constitutionit would have made legally effective everything done by the rebel government of Texas.326
It is not
strongerthan the Constitution,however,and the Court'scompromise
position was that acts of the rebel governmentwere effective insofar
as they governed private rights,but acts in support of the rebellion
327
were in generalinvalidand void.3
Chief Justice Chase thought pretty highly of the legal effectiveness of de facto governments.
He seems not to have been alone. Especially instructiveis the
conduct in this regardof the people who organizedthe second-round
regimes. No one had a greater stake in the principle that the firstround governmentswere not de jure. Of course,the people of a state
324 Id.
325 Id at 731-32.
326 The ChiefJusticesaid thatthe rebel legislature
cannotbe regarded,therefore,in the courtsof the United States,as a lawfullegislature,or
its acts as lawfulacts.And, yet, it is an historicalfact that the governmentof Texas,then in
full controlof the State,was its only actualgovernment;and certainlyif Texashad been a
separateState,and not one of the United States,the new government,havingdisplacedthe
regularauthority,and havingestablisheditself in the customaryseats of power,and in the
exerciseof the ordinaryfunctionsof administration,
wouldhave constituted,in the strictest
sense of the words,a de facto government,and its acts,duringthe periodof its existenceas
such,wouldbe effectual,and,in almostall respects,valid.And, to some extent,thisis trueof
the actualgovernmentof Texas,thoughunlawfulandrevolutionary,as to the United States.
Id at 732-33.
327 Id at 733.
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may replacetheirgovernmentat theirpleasure,so in ordinarycircumstancesthe validityof a new state constitutiondoes not rest on the invalidity of the precedingone; usually the process that producedthe
new constitutionwill have been set in motion underthe old one. But
the creation of the second-roundregimeswas not altogetherspontaneous with the people of the states involved.It was promptedby Congress and conductedby federal officials under new rules of suffrage.
The best justificationfor this extraordinaryfederal involvementwas
the claim that Congresswas operatingin a vacuumof state law,the
states' earlier political laws having been abrogated.If that was true
the first-roundregimeswere of doubtfulvalidity.
Despite this strongincentiveto act in accordancewith the official
pronouncementof the ReconstructionActs, none of the new regimes
adopteda broadrepudiationof what had gone before.In generalthey
recognizedsome legal force to the actsof the first-roundgovernments,
while sometimes explicitlyrejectingthose regimes' claims to full legitimacy.
The Texasconstitutionof 1869 is particularlyinterestingbecause
it dealt with the continuityissue in some detail and had a slidingscale
of legitimacy.Section33 of Title XII began by brandingthe ordinance
of secessionand everythingbased on it "nulland void from the beginAs for the rebel legislature,it "hadno constitutionalauthority
ning."38
to make laws bindingupon the people of the State of Texas,"329
but the
reconstructedstate authoritieswere not to be inhibitedfrom
respectingand enforcingsuch rules and regulationsas were prescribedby the said legislatureswhichwere not in violationof the
Constitutionand laws of the United States,or in aid of the rebellion againstthe United States,or prejudicialto the citizensof this
State who were loyal to the United States,and whichwere actuin force or observed in Texas during the above period of
ally
.
330
time.
Continuingto ascend the hierarchyof legitimacy,the Texasconstitution then came to the first-roundlegislature,which was neither
null and void from the outset nor lackingin constitutionalauthority,
but
provisionalonly, and its acts are to be respectedonly so far as
they were not in violation of the Constitutionand laws of the
United States,or were not intendedto rewardthose who partici328
Texas Const of 1868 Art XII, ? 33 (superseded 1876).
329 Id.
330 Id.
Reminding the reader of the point about the reason for recognizing de facto governments, the provision continues "nor to affect, prejudicially, private rights which may have
grown up under such rules and regulations."Id.
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TheLawfulnessof the Reconstruction
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pated in the late rebellion;or to discriminatebetween citizens on
account of race or color; or to operate prejudiciallyto any class
. .
331
of citizens.331
That far, however, they were to be respected.And when it came
to the cash nexus,the provisionallegislaturewas recognizedas having
legitimatelyborrowed money for Texas whereas the rebel legislature
was not.32
Louisianaalso evinced some hesitationabout its Lincoln-inspired
regime, although more subtly.Its 1868 constitution explicitly superseded "the constitutionadopted in 1864,and all previousconstitutions
in the State of Louisiana."333
The Louisiana constitution of 1852, by
had
contrast,
supersededonly its immediatepredecessor,the constitution of 1845,without referringto any prior constitutions.33
Maybe the
draftersin 1868 had doubts about the efficacy of the provisionin the
Those
1864 constitution that had superseded the 1852 document.335
draftersdo seem to have believed that the acts of the first-roundlegislature had at least de facto effect, because they declaredvalid the laws
in force when the 1868constitutionwas adopted;puttingthat as a declaration and referringto laws in force indicates that, whatever their
provenance,those laws were effective.3 Georgia too affirmedits legal
continuity while casting a sidelong glance at the troubles through
which it had passed, endorsingwith stated exceptions "all acts passed
by any legislative body,sitting in this State as such, since the 19th day
of January,1861."337
The other second-round constitutions that dealt explicitly with
legal continuitywere more generous to their first-roundregimes.Mississippi in 1868 provided for legal continuitywithout casting any aspersions on the legislatures that had produced the laws then in effect.3'By referringto the laws in force, the Mississippiconvention im331 Id.
332 Section34 of ArticleXII brandednull and void all debtscontracted the rebel
by
legislature but did not mentionthe first-roundlegislature.See id ? 34.
333 La Constof 1868Title X, art 148 (superseded1898).
334 La Constof 1852Title X, art 142 (superseded1864).
335 La Constof 1864TitleXIII,art 148 (superseded1868).
336 La Constof 1868Title X, art 149.Article 149 specificallyexceptsfromits declarationof
validityseveralacts of the first-roundlegislature,includingpartsof its BlackCode.See id.
337 Ga Constof 1868Art XI, cl 3 (superseded1877).
338 The Mississippiconstitutionof 1868 providedthat "[a]lllaws now in force in this State,
not enacted in furtheranceof secession and rebellion,and not repugnantto this constitution,
shall continuein operationuntil they shall expire by their own limitation,or be alteredor relaws,"Miss Constof 1868Sched,? 2
pealed by the legislature,except the hereinafter-mentioned
(superseded1890),the firstof whichwas the December1865 statute,no doubtdesignedto conciliate the Yankees,that had changedthe name of JonesCountyto Davis County.See id. Mississippiansmay have believed that by default a new constitutionwas a legal jubilee,because an
identicalprovision,minusany exceptions,appearedin the scheduleto theirconstitutionof 1832.
446
The Universityof Chicago Law Review
[68:375
plied that, whatever their source, they were indeed in force. North
Carolina's1868 constitutionprovidedthat "the laws of North Carolina,not repugnantto this constitutionor to the Constitutionand laws
It is
of the United States, shall be in force until lawfully altered."33
the
North
Carolina
convention
what
that
believed, despite
possible
Congresssaid, that the first-roundgovernmenthad been fully lawful
and that it was engaged in ordinarystate-levelconstitutionalchange
that did not rest on any defect in the priorconstitution.North Carolina's second-roundSupremeCourt,however,did not take that view.
It characterizedthe presidentially-reconstructed
governmentas provisional and the congressionally-reconstructed
governmentas permanent,emphasizingboth continuityand change.
Florida'sconstitutionof 1868 was by implicationrelativelyflatteringto the first-roundgovernment.Its transitionprovisionaffirmed
all "actsand resolutionsof the generalassembly,and all officialacts of
the civil officers of the State,"that were consistentwith it and with
federal law.34It was much less charitableto the acts of the "so-called
general assembly"passed after January10, 1861, the date on which
In particular,the 1868
Florida'sordinanceof secessionwas adopted."2
constitution purported to repudiate most debts contracted in the
name of Floridabetween the date of secession and October25, 1865,
the date on which Florida'sfirst-roundconventionmet at President
Johnson'scall." For all one could tell, the first-roundregimewas simply valid,and not just de facto.
In similarfashion,Virginia'ssecond-roundconventionmay have
acted on the premise that whateverCongresssaid, the Pierpontgovernmenthad been trulyvalid and not just de facto or provisional.Virginia's 1870 constitutioncontinued "[t]he common law and statute
laws now in force, not repugnantto this constitution"as if they were
indeed in force.34A much strongerendorsementof Pierpontand his
coadjutorscame in the preamble,whichrecitedVirginia'searlierconstitutionsof 1776,1830,1850,and 1864,the last of which was written
and adoptedby a small group of loyalistsmeeting in Alexandria.'3 It
seems likely that as far as Virginia'ssecond-roundreconstructorswere
MissConstof 1832Sched,? 4 (superseded1868).
339 NC Constof 1868Art IV,? 24 (superseded1876).
340 The second-round
SupremeCourtof NorthCarolinaexplainedthatthe permanentgovernmentunderthe new constitutionwasthe fulfillmentof the provisionalgovernment.See State
v Jarvis,63 NC 556,557(1869).
341 Fla Constof 1868Art XVI, ? 2
(superseded1885).
342 Id?3.
343 Id?4.
344 Va Constof 1870Sched,? 1 (superseded1902).
345 Id Preamble.
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The Lawfulness of the Reconstruction Amendments
447
concerned, the Pierpont government had been the real thing.6 It is
thus hard to count Virginia as recognizingthe power of a merely de
facto government.
Arkansas'snew constitutionimplicitlyrecognizedthe existingregime, providingthat "[t]he inferior courts of the State as now constituted by law, except as hereinafter provided, shall remain with the
South Carolinadid not consame jurisdictionas they now possess."347
tinue courts but it did continue cases, authorizingthe legislature to
provide for their transferto the new judiciary;it did not require that
cases be refiled.348
Judicialopinions can be more talkativethan constitutions,and in
1869 the second-roundSupremeCourtof Alabamaconfronteda challenge to the legal authorityof its first-roundpredecessor.39Chief Justice Peck, presiding over the second-roundcourt, agreed that President Johnson lacked the authority to reorganize the state governments and therefore should have left the matterto Congress.350
NeverPeck
believed
the
earlier
exercised
actual
authortheless,
government
ity and was recognizedby the ReconstructionActs as provisionaland
not void, although illegal.35Nor did it matter that the judges of the
first-roundSupreme Court may have been ineligible to hold their offices because of their participationin the rebellion:"so long as they
were permitted to hold their offices, and to dischargethe duties of a
supreme court,their judgmentswere valid, as it regardsthe partiesto
such judgmentsthemselves,third persons and the public.""35
Chief Justice Peck did not use the words de facto, but that was his reasoning:
the earlier regime was the actual governmentand Congress,the final
arbiter, did not completely displace it.33
If de facto authority is the key here, one ratificationis still in
trouble. In February1865 a Virginia legislaturesitting in Alexandria
346 Whateverits faults,the 1864Virginiaconstitutionwas the work of Loyalists.The Alexandriaconventionmay not have been trulyrepresentative,but unlikethe Johnsonconventionsit
could not be said to have been dominatedby unrepentantrebels.
347 Ark Const of 1868 Art VII, ? 5 (superseded1874).While it did not repudiatethe firstroundregime,the 1868Arkansasconstitutiondid declarenull andvoid ab initio the ordinanceof
secessionandthe state'sConfederateconstitutionand government.See id Art I, ? 25.
348 SC Constof 1868Art XIV,? 9 (superseded1895).
349 Powellv Boon & Booth,43 Ala 459,487-88 (1869) (holdingjudgmentsof the courtsunder the provisionalgovernmentof Alabamawere binding).
350 Id at 473.
351 Id at 477-79. Peck
thoughtthat he was boundby Congress'sjudgmenton this political
question.See id at 478.
352 Id at 482.
353 The passagejust discussedmay have been dictum,or an alternateholding,becausethe
court also relied on a continuityordinanceof the second-roundAlabamaconventionthat endorsedwhathad gone before.See id at 483 (quotingOrdinanceNo 15).Formy purposes,the importantthingis that a second-roundjudgelike Peckthoughtthisreasoningpersuasive,not thatit
was his holding.
448
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After the creationof WestVirratifiedthe ThirteenthAmendment.35
the
had
little
ginia, Pierpontgovernment
practicalauthority.55
It is possible to make Governor Pierpont look like Governor
Dorr,the loser in a politicalstrugglefor the people'sheartsand minds
and hence for practicalauthoritybased on acquiescence.If this were
just a matterof internalVirginiapolitics,the Alexandriaregime'slack
of de facto controllikely would be fatal to its claim to speak for Virginia.But the organizationin Richmondwas in rebellion againstthe
United States.GovernorLetcher,unlike GovernorKing of Rhode Island,did not claimto lead one of the United States;only Pierpontdid.
Hence the questionhere is not the Lutherquestionof identifyingthe
lawfulgovernmentof one of the United States.Rather,the questionis
the effect of a temporarilysuccessfulrebellion againstthe Union on
the legal authorityof a loyal state government.
When Congressand the Presidenthad to decide whetherto admit West Virginia,and thereby recognize the Wheeling regime, the
questionwas whethertreason,even by a majority,should be allowed
The majorto interferewith the politicalrightsof the loyal minority.3'
the
in
and
the
President
sided
with
ity Congress
loyal minority.If a
rumpgovernmentwas all Virginia'sloyalistscould muster,they were
at least entitled to that.This argumentthat the Constitutiondoes not
favorrebelshas substantialappeal.
Moreover, the domestic violence clause indicates that a state
governmentcan retain its legal authorityeven when its practicalauA sudden outburstof violence
thority is for some time disrupted.37
for
a
brief
time, lead to anarchy.But if the state's aumight,perhaps
thoritieswere therebydeprivedof their abilityto speak for it, neither
the Governornor the legislaturecould make the constitutionallyrequisite call on the United States for assistance.As long as they struck
quicklyand thoroughly,violent rebels could subvertthe government
simplythroughtheir violence.On this theory,Dorr failed because he
was not ruthlessenough.
354 Ambler, Pierpont at 227 (cited in note 17).
355 That authority was limited to the Eastern Shore, Alexandria, Fairfax, and Loudon counties in Northern Virginia, and a few tidewater counties. Id at 213. Although a relatively small part
of Virginia, their population was hardly negligible, amounting to about a quarter of a million
people. But the Pierpont government performed only limited functions even in these areas. See
id at 222 ("A bitter controversy with the military decreased the popularity and impaired the usefulness of the Alexandria Government which was at no time popular with Virginians,even those
of their number who remained loyal."); id at 227 ("Notwithstanding the Governor's wise recommendations and his evidences of ability to deal with an unprecedented situation, the assembly
enacted no laws of importance.").
356 See Nicolay and Hay, ed, 8 Works of Abraham Lincoln at 157-60 (cited in note 33)
(opinion of President Lincoln).
357 US Const Art IV. ? 4 (On application of legislature or governor, the United States is to
protect each state against domestic violence.).
2001]
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449
When opposition to its authorityis plainly unlawful,a state governmentis entitled to some time while order is being restored.It took
time in Virginia,but eventuallythe rebellion was put down and Francis Pierpontwas establishedin Richmondas Governor.In the interim
he was the only United State GovernorVirginiahad, and likely his organization was entitled to speak for the state despite its limited de
facto authority.
The de facto principle is reasonablywell established.It remains
to be discussedwhetherits rationaleappliesin the context of constitutional amendments.To see why it does, we need to examine the considerationsthat underliethe de facto principle.Governmentsare seriTo say that an organizationis a de facto governmentis
ous business.38
to say that it actually exercises enormous power over people's lives.
That power creates strongincentives to act as if the governmentis indeed lawful,which of course will be what its officials claim (like Justice Catron,no one wants to be a usurper).People are thus very likely
to build their lives on the assumptionthat what the governmentsays
will stick. It is thus immensely disruptiveto conclude,perhaps years
later, that a once de facto governmentwas merely de facto and void.
Justice Swayne discussed this in Phillips, and he may very well have
been consciouslyechoing Luther.In the lattercase Chief JusticeTaney
had emphasized the grave consequences of finding retrospectively
that an operationalgovernmenthad been legally void.359
358 The
SupremeCourt'sbest reminderof the businessgovernmentsare in may be a remarkby JusticeCatronin his concurrencein Dred Scott.Scottv Sanford("DredScott"),60 US
393 (19 How), 522-33 (1857) (Catron concurring).While Catron agreed with Chief Justice
Taney'sconclusion,he did not go along with all of the reasoning.In particular,he rejectedthe
suggestionthat Congress'spowerover territoriesunderArticle IV was confinedto the territory
the countryowned when the Constitutionwas formed,and thereforedid not extendto the LouisianaPurchase.Catronwas assignedthe westerncircuit,and had long riddenthe circuitin land
sold to the countryby Napoleon.
It is due to myselfto say,that it is askingmuchof a judge,who has for nearlytwentyyears
been exercisingjurisdiction,from the westernMissouriline to the Rocky Mountains,and,
on this understandingof the Constitution,inflictingthe extremepenaltyof deathfor crimes
committedwhere the directlegislationof Congresswas the only rule,to agree that he had
been all the while actingin mistake,and as an usurper.
Id at 522-33.
359 Luther,48 US at 38-39:
For,if this courtis authorizedto enter upon this inquiryas proposedby the plaintiff,and it
shouldbe decidedthat the chartergovernmenthad no legal existenceduringthe periodof
time above mentioned,-if it had been annulledby the adoptionof the opposinggovernment,-then the laws passed by its legislatureduringthat time were nullities;its taxes
wrongfullycollected;its salariesand compensationto its officersillegallypaid;its publicaccountsimproperlysettled;and the judgmentsand sentencesof its courtsin civil and criminal cases null and void, and the officerswho carriedtheir decisionsinto operationanswerable as trespassers,if not in some cases as criminals.
When the decisionof this court might lead to such results,it becomes its duty to examine
450
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Sandbaggingpeople like that will have high ex post costs. One
could think that the worstscenariois thus one in whichthe later conclusionthat the governmentwas invalidcomes as a surprise.Thatmay
be true,but the anticipationthat such a thingcould happenis likely to
have its own bad consequencesex ante.The possibilitythat some future regime will find the currentregime void does not substitutefor
the currentregimehere and now;it does not providesome alternative
way to make a contractor a marriage,to providepublicgoods through
taxation,or deter crime by punishingcriminals.It simply makes all
those things less reliable and even dangerous.Ex ante, then, the anticipationof later invalidationcan paralyzemuchof life, imposingthe
costs of anarchy.
These considerationsare as strongwith respect to constitutional
amendmentsas any other governmentaction,perhapsstronger.Precisely because constitutionalamendmentscan be about fundamental
issues, retrospectively invalidating one could defeat expectations
wholesale.Uprootingthe SixteenthAmendment,for example,would
have incalculableconsequences.- In similarfashion,the inabilityto
settle a basic questionis very costly.Doubt about the legal effectiveness of the state governmentsthat ratified the TwelfthAmendment,
for example,would introduceuncertaintyas to the legality of presidential elections.36'
Adjustingto that uncertaintywould put the country backsome.
Reconstructionand its aftermathprovide two vivid examplesof
the de facto principle'spower.WestVirginiawas createdin a legally
doubtfulfashion.Yet it was created,and in fact its governmentexercised power both domesticallyand in the nationallawmakingprocess.
Later to treat all that as invalid would be a massive penalty for the
country.
As the example about the TwelfthAmendmentremindsus, the
whole systemof the nationalgovernmentdependson the Presidentof
the United States.Without him laws and treaties cannot be made,
judges and justices cannot be appointed.In 1876 and 1877 there was
serious doubt as to who had been elected President.Rival slates of
electorspresentedthemselvesin enoughstates to swingthe choice between Hayes andTilden.EventuallyCongresscame up with a political
mechanismfor decidingthe issue.62Neither Congressnor anyoneelse,
very carefully its own powers before it undertakes to exercise jurisdiction.
360 "The Congress shall have power to lay and collect taxes on incomes, from whatever
source derived, without apportionment among the several States, and without regard to any census or enumeration." US Const Amend XVI.
361 US Const Amend XII (reforming the mechanism for electing the President and Vice
President and providing for a congressional vote when no candidate has a majority).
362 See Charles Fairman, 7 History of the
Supreme Court of the United States: Five Justices
2001]
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TheLawfulnessof the Reconstruction
451
however,has any explicitpower with respectto the presidencythat resembles each house's power with respect to its own members.To this
day no one really knows whether Hayes or Tilden was rightfully
elected. But Hayes took the oath and became,in fact, Presidentof the
United States. His vetoes, not Tilden's, were legally effective. Any
other resultwould have had unacceptableconsequences.
2. Federalcoercion.
Congress and President Johnson have been accused of coercing
southernratificationof the FourteenthandThirteenthAmendments.363
Ratificationwas the result of threats to engage in unlawful conduct,
goes the argument,and actions taken under such threat are themselves legally inoperative.364
a) Was there coercion that mattered? Although it is easy to talk
about federal coercion,it is not actuallyclear that there was any that
made a difference.Four of the southern states that ratified the Thirteenth Amendment did so with no explicit encouragementfrom the
federal government.The loyalist regimes of Virginia,Louisiana,Arkansas,and Tennessee,which ratified in early 1865,were not pressed
to do so and did not need any pressure.Each of those governmentsalready had eliminatedslaveryin its own state,not because the war was
lost, but because they were in the hands of Unionists.
When PresidentJohnsonwas overseeingthe reconstructionprocess in the six states that got organizedin the second half of 1865, he
made fairly clear that ratificationwould be a good idea.6 The main
inducement he offered, however, was not his to give and he did not
claim that it was. Ratification,he indicated,would be necessaryto induce Congressto treat the states as restored.36While that was almost
certainly true, Johnson was not acting in concert with Congress as a
legal institutionnor with the Republicanleadership.Ratherthan making a threat, he was pointing out a way to curryfavor with the decisionmaker.No doubt many southernershoped that ratificationwould
smooth the process of restorationto representation,but they had received no coercive offer from Congresswith those terms.
and the Electoral Commission of 1877 53-54 (Macmillan Supp 1988) (summarizing the passage
of the ElectoralCommissionAct of January29,1877).
363 This accusationis separatefrom the claim that federal pressureinducedthe states to
formtheirreconstructedgovernments.Thatclaimis dealt within the precedingsection.
364 The
principlehas its home in the law of contract.Old commonlaw doctrineon the subAmeriject is discussedin Chitty,Contractsat 167-70 (citedin note 228), andnineteenth-century
can developmentsin Parsons,1 Law of Contractsat 321-22 (cited in note 228).The currentRestatementcontainsa similardoctrine.Restatement(Second)of Contracts?? 174-76 (1981) (discussinghow threatandduresscan void a contract).
See Richardson, ed, 6 Messages and Papers of the Presidents at 358 (cited in note 14).
366 See id at 358-60.
365
452
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Eventuallythey did receive such an offer in the first Reconstruction Act. Ratificationof the FourteenthAmendmentwas made a conIt is doubtful,however,whether
ditionto representationin Congress.67
that particularthreat was necessary.The coalitions that dominated
most of the second-roundgovernmentshad excellentreasonsto ratify,
including,for example,protectionof their black constituentsfrom renewed Black Codes.7 Congress had done the real work when it
broughtabout the creationof state governmentswith race-blindsuffrage.
b) Wasthe coercion unlawful? Not all agreementsmade under
threatare invalid.Lawful"threats"in contractbargainingincludethe
threatnot to enter into the contractif the other partywill not agree to
one's terms.69Such inducementsare lawful because the parties are
under no obligation to one another to agree. Duress comes from a
No doubt most Republicanshad
threat to do somethingunlawful.30
come to believe that exclusionof the southernerswas lawful,and in
particularthat it was lawful to demandsecurityfor the Union before
they were readmitted. Part of that security was the Fourteenth
Amendment.
Whetherthey were rightor not is one of the tightly-woundknots
I will not try to unravelhere. It is importantto see, however,that this
action probablyhad to be treatedas lawfulwhetherit was or not. Behind the politicaldynamicsof Reconstructionand the inducementoffered by the statuteswas a fact of power founded in a basic point of
constitutionallaw: each house of Congressdecides whom to admit,
and there is nothinganyoneelse can do aboutthat decision.7'Whileit
367
See 14 Stat at 429 ("[W]hen said State ... shall have adopted [the Fourteenth Amendment] and when said article shall become a part of the Constitution of the United States, said
State shall be declared entitled to representation in Congress.").
368 Not all the second-round governments were dominated by mainstream Republicans.
Virginia's was not. See Jack P.Maddex, Jr., The Virginia Conservatives 1867-1979:A Study in Reconstruction Politics 67-85 (UNC 1970) (describing coalition of Democrats, ex-Whigs, and Republicans that controlled Virginia's second-round government). In Georgia white supremacists
had enough power to declare the elected black members of the legislature ineligible on account
of color. See Thompson, Reconstruction In Georgia at 211-14 (cited in note 183) (reporting the
resolution to unseat the black members passed by a vote of 83-23; the black members did not
vote).
369 "An ordinary offer to make a contract commonly involves an implicit threat by one
party, the offeror, not to make the contract unless his terms are accepted by the other party,the
offeree. Such threats are accepted as part of the bargaining process." Restatement (Second) of
Contracts ? 176, cmt a.
370 See id ?? 175, 176(a) (stating that a threat is improper and may give rise to voidability
under the duress principle if it is a crime or a tort).
371 This is why it was important to the Republicans in 1866 to retain an absolute majority of
all congressional seats, counting the excluded southerners. As long as the Republicans had that
majority, a body of southerners and northern Democrats could not even claim to muster the
quorum necessary to act as Congress. With that absolute majority,and control of each house, the
Republicans held in their hands the fate of the southern claimants.
2001]
TheLawfulnessof the Reconstruction
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was official Republican doctrine that decisions as to the identity of
lawful state governmentswere for Congresscollectively,the ultimate
power over admission was in the House and Senate separately.The
determinationof majoritiesof each of those bodies to keep out the
southernerswas the real whip for the southernstates.
As the Constitutionsays,each house is the judge of the elections,
Whether or not one
qualifications,and returnsof its own members.72
with
Luther
and
the
doctrine
that
Congress is final when it
agrees
identifies the lawful governmentof a state, Section 5 of Article I gives
the House and Senate the final authorityto resolve contested questions of law and fact;that is whatjudges do. And once judgmentis entered it is treated as correctwhetherit is or not; that is the main thing
judges do. The House and Senate are the final tribunal,and appeal to
them is the final remedyfor unlawfulexclusion.
Which means that the southernersshould not have been able to
challenge the legality of either house's determinationin any other forum.If the question came up collaterallyin a laterjudicialproceeding,
the court should have assumed that the congressional decision was
right.Contractsentered into pursuantto lawful threats are valid.The
private law analog would be something like this: A and B are
neighbors who are negotiating a sale by A to B of the part of A's
property closest to B. To help matters along, A erects an unsightly
temporarystructureon that part of the property,which B will be able
to take down if the parcel changes hands.B sues A, claimingthat the
structureis a nuisance, and A prevails.B then agrees to buy at A's
price and A removes the structure.Then when A moves to close the
sale B backs out, saying that the bargainwas made under duress because of the unlawfulthreat to maintainthe ugly building.A replies
that the earlierlitigationconclusivelyestablishedthat the buildingand
The SupremeCourt'scurrentdoctrineis that the courtscan do at least somethingaboutit.
See Powell v McCormack,395 US 486, 550 (1969) (Courtsmay decide whetherexclusionfrom
the House of Representativeswas legally permissible.).I thinkit safe to say that the Courtthat
decidedMississippiv Johnson,71 US (4 Wall)475 (1867),wouldhave disagreed.The Courtin the
lattercase deniedits ownjurisdictionto heara bill by Mississippi'sfirst-roundgovernmentto enjoin the Presidentfromexecutingthe ReconstructionActs.Id at 499-501.
372 See US ConstArt I, ? 5. The two houses'
finalityregardingtheir own membershipalso
answersthe objectionthatby excludingthe southernersthe Republicanswere violatingnot only
the QualificationsClauses,id Art I, ? 2 cl 2; id ? 3, cl 3, by addingnew qualificationsof theirown,
but also the Constitution'smost fundamentalprinciple,that each state is entitledto representation in the Senate.See id Art I, ? 3, cl 1 (two senatorsfromeach state);id AmendV (No amendment may depriveany state of equal suffragein the Senate withoutits consent.).The Republicans'positionwas that they were not addingqualifications,but ratherwere refusingto seat pretended representativesand senatorswho had not been validlyelected. On theirtheorythe Senate was no more violatingthe Constitutionin refusingto seat AlexanderStephensthanit would
have been in refusingto seat a claimantwho had been chosen only by one house of a bicameral
state legislature.WhetherStephenshad been validlyelected was a bitterlycontestedquestion,
but one as to whichthe Senatewas"theJudge."Id Art I, ? 5.
454
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the threat were lawful. On that point A prevails on preclusion
grounds.
c) Coercion and Article V. The foregoing argument leaves unre-
solved the mainquestion:whetherunlawfulpoliticalthreatsinvalidate
constitutionalamendmentswhen, absent the threat,the amendment
would not have been adopted. I think such threats do not, despite
whatmay seem like the obviousanalogyto the privatelaw of contract.
Constitutionalamendmentsare not contracts.They are exercises
of sovereignpower.Illegal acts that affect such exercisesmay or may
not renderthem invalid.A classicinstanceof a bindinglegislativeact
that may have resultedfrom unlawfulconductis found in Fletcherv
Peck.33 Fletcher involved a Georgia statute that sought to undo a mas-
sive land grantthat had been obtainedby bribingthe previouslegislature.The SupremeCourtheld the subsequentstatuteinvalid,thus settling the law and protectingthird parties (who may or may not have
been innocent),at the price of givinglegal effect to a grosslywrongful
action.374
In orderto decide whetherArticleV implicitlycontainsa duress exception,it is necessaryto think aboutArticleV, not just about
generalprinciplesconcerningcoercedaction.
Thinkingabout Article V suggeststhat it has no implicitduress
limitation,just as it has no explicitduresslimitation.It is usefulhere to
considertwo candidatethirteenthamendmentsthat did not make it.
Duringthe secessionwinterof 1860to 1861,effortswere madeto hold
the Union together. One came from the lame duck session of the
Thirty-sixthCongress.That Congressmusteredthe two-thirdsmajorities to propose the so-called Corwinamendment,which would have
cementedslaveryin the states.375
Lincolnsupportedthe amendmentin
376
his first inauguraladdress.3SenatorCorwin'sproposalwas a concession to the South designed to end secession and keep the Union together.
Not quite two years later, in his annual message of December
1862, President Lincoln endorsed another suggested constitutional
amendment dealing with slavery.377
It too was a concession to the
South, althoughafter the already-terriblewar the terms were not as
juicy.Rather than protectingslavery for as long as the Constitution
should last, it providedfederal money to compensateslaveholdersin
US (6 Cranch) 87 (1810).
at 139.
375 "No amendment shall be made to the Constitution which will authorize or
give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof,
including that of persons held to labor or service by the laws of said State." McPherson, Rebellion at 59 (cited in note 18).
376 Richardson, ed, 6 Messages and Papers of the Presidents at 10-11 (cited in note
14).
377 Id at 136.
373 10
374 Id
2001]
TheLawfulnessof the Reconstruction
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states that arrangedto emancipatetheir slaves before 1900.It also secured the freedom of those slaves who had been emancipatedby the
war,while providingcompensationfor loyal owners.378
As far as Lincoln and most Republicanswere concerned,secession was unlawful and civil war to make secession stick was treason.
Yet supporters of the two amendments were prepared to buy the
southernersoff; their proposed amendmentswere bribes designed to
dissuade the South from lawless behavior.They would not have been
able to make either offer, however, had there been a strong duress
principlein Article V. Both proposed amendmentswere made in response to action that many of their proponentsthought to be illegal.
Hence if duress invalidated constitutional amendments,both would
have run a good chance of later being held invalid.To be sure, the
southernersthought that they were within their rightsin seceding and
in enforcing secession through war, but Lincoln and his party disagreed.With a duressprinciplein place,PresidentLincolnwould have
been hard put to it to tell the southerners that the conciliatory
amendmentswould hold good. In hindsightwe know that they would
not have.Lincoln'sChief Justicewould hold that secession was unlawful.379
Bitter politicaland legal disputeslike slaverymay lead the parties
to take steps like secession that are themselves a subjectof bitter political and legal dispute. If constitutional amendments are invalid
when made in response to unlawfulthreats and unlawfulconduct,the
amendmentprocess can lock up just when it would be most helpful.
Savingthe Union may be worth some duress.
A naturalresponse to this argumentis to distinguishsome threats
from others and in particular to distinguish strategic from nonstrategicthreats.A strategicthreatis one made only in orderto induce
agreement,with no other motive behind it. When a strangerwho has
nothing against you personally says, "your money or your life," the
threat is strategic.Such threatswill be deterredif the wrongdoercannot later enforce the agreement,because the only reason to make the
threat is to obtain the agreement.When your clan's hereditaryenemy
says,"I'm going to kill you,"the threatenedaction is attractiveto the
threatener on its own merits.That threat is non-strategic.If that enemy wants your head but would like $1,000,000even more,then being
able to pay the money would be very useful. And if it is possible to
distinguishstrategicfrom non-strategicthreats,allowingtargetsto buy
378 Id.
379 That was the holding of Texas v White. See 74 US at 726 (declaring Texas's "ordinance of
secession ... and all the acts of her legislature intended to give effect to that ordinance, were absolutely null").
456
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off non-strategicthreatenerslike the hereditaryenemy will not increasethe numberof threats.
A sensible duress doctrineunderArticle V probablywould distinguishbetween strategicand non-strategicthreats,because the former are much more subjectto deterrencethroughinvaliditythan are
the latter.Under this more limitedduressdoctrineit is possibleto argue that the proposed thirteenthamendmentswould have been unproblematicbecausethe South'sbehaviorwas non-strategic.Secession
was an independentlymotivatedresponseto Lincoln'selection,not an
attempt to extort further concessions from the North. It could not
have been deterred by invalidatingany constitutionalamendments
that resultedfrom it, and hence the secession crisis could have been
defusedthroughan amendment.
If Article V has this kind of duress principle,it is doubtful
whether the FourteenthAmendmentwas the productof duress.The
possiblyunlawfulthreat was exclusionof the southernersfrom Congress, and that threat probablywas non-strategic.It is easy to lose
track of the sequence of events with respect to the Fourteenth
Amendment,and come to believe that the Republicanswere tryingto
force ratificationand hit upon exclusionas a meansto do so.Thatwas
not the order in which matters developed. Rather, the Republican
leadershipagreedin the fall of 1865 that it would be unsafe to admit
the southernclaimants.0As events unfoldedin the winterof 1865 to
1866,the Republicansbecame increasinglyconvincedthat admitting
the southernerswould mean allowing the rebels to win politically
what they had lost on the battlefield.The FourteenthAmendment,
with its Section 2 penalty aimed at the neo-slave-power,set out the
conditionsunderwhich the South could safely be restored.Throughout this period,the drivingforce of exclusionwas the desire to maintain loyal (or Republican,if one thinks it was really about partisan
power) control of Congress.The Republicanshad an excellent independentreasonto keep southernDemocratsout, so theirmode of coercionvery likely was not strategic.
Moreover,even the limited duressprinciplehas a difficultythat
makes it an unappealingreading of Article V. It requiresthat decisionmakersbe able to distinguishstrategicfrom non-strategicthreats
in situationswhere the threatwas not carriedout, or was not carried
out fully.If the CorwinAmendmenthad been adoptedand the Union
saved, and a Republican Congress had later tried to back out on
groundsof duress,it would have been necessaryto know whetherthe
threatof secessionhad been strategic.ForAmericanssparedthe Civil
War,that would have been a difficultquestion.Many Republicansin
380 See text
accompanying notes 122-24.
TheLawfulnessof the Reconstruction
Amendments
2001]
457
1860 and 1861 seem to have thoughtthat secession was just a southern
bluff in an attemptto extractfurtherconcessions.381
Politicianswho believed that could not in good faith have offered the CorwinAmendment had there been an Article V duress doctrine,because it would
run a serious risk of invaliditywere the threat found to be unlawful
and strategic.Once again,a duress doctrinewould cause the constitutional amendmentprocess to break down when the countryneeded it
most.
Sometimes the need for final and certain settlement overcomes
other considerations.Constitutionsare fundamentallaw,and they can
include compromiseson stronglycontested issues.Those compromises
can avert somethingworse and have to stick if they are going to do so.
A similar need for conclusive agreement appears in public international law,whichhas its own doctrineof duresswith respectto treaties.
In general, if one state coerces another into agreeing to a treaty,the
Despite that principle,the United States does not
treaty is invalid.382
have to give Californiaback to Mexico, because the principlehas an
This may seem upexception. Coerced peace treaties are binding.383
are the result of
all
others
above
treaties
because
side-down,
peace
plain militaryforce, as was the Treatyof GuadalupeHidalgo whichincluded the Mexican Cession.But a state that cannot bind itself to surA countrythat cannot amend its conrender risks being obliterated.84
stitutionin response to illegal conductmay run that risk too.
III. FORMALISMAND CONSTITUTIONALAMENDMENT
All the foregoing leaves in place a basic historical fact. In the
1860s a sectionallybased partyused its control over the nationallegislature and the state legislaturesof its section to bring about constitutional change.The sectional party did that despite the opposition of
anothersectional coalition that startedout in politicalcontrolof more
381
As Potter explains,"therewas an overwhelmingimpulsein the North to discountthe
signalsfrom the South and to supposethat South Carolinawas merely havinganothertemper
tantrum."Potter,TheImpendingCrisisat 517 (footnoteomitted)(cited in note 16).
382 Henry J. Wheaton, Elements of International Law ? 267 at 340 (Sampson Low 8th ed
1866) (RichardHenry Dana, ed) (In general,treatiesobtainedthroughthreatof force are void,
like contractsmadeundersimilarthreat.).
383
Id.
384 Wheaton elaborated:
On the other hand,the welfareof society requiresthat the engagementsenteredinto by a
nationundersuch duressas is impliedby the defeat of its militaryforces,the distressof its
people,and the occupationof its territoriesby an enemy,shouldbe held binding;for if they
were not, wars could only be terminatedby the utter subjugationand ruin of the weaker
party.
Id.
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The Universityof Chicago Law Review
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than one-fourthof the states.The Republicans,that is, got away with
somethingArticleV probablywas supposedto prevent.
This is no problem for a formalist.Legal rules often fail to accomplishtheir purposes.To say that the rule and its reason divergeis
to identifya problemwith the rule,but it demonstratesneitherthat on
balancethe rule is a bad one nor thatit has been misapplied.
Manyfind that kind of responseunpersuasiveas a generalmatter,
in large measurebecause they reject,not the claim that a norm can
fail its reason,but the tendencyof many formaliststo read normsso
that they do so. The problem is not conceptual but interpretive.
Grantedthat normscan poorly serve their purposes,it is nevertheless
a problemwith an interpretationthat it causes the norm to miss its
mark.Thisdifficultymay seem especiallyseriouswhen the normbeing
interpretedis the Constitution'svery rule of recognition,the keystone
of the legal arch.If ArticleV missesits mark,the whole Constitutionis
in jeopardy.
This is a serious objection,but it does have an answer.In Hans
Linde'sphrase,behindthe featuresof the normsthat here seem to defeat their purpose there is still "a reason that even realists can reThe aspects of the Constitutionthat in this context conspire
spect."35
state
autonomyhave their own powerfuljustification.The jusagainst
tificationis the leadingreasonfor preferringrules over standards:the
need for certainty.
If one concludesas I do that the reduceddenominatortheory is
ultimatelyunpersuasive,and if one still has doubtsas to the lawfulness
of congressionalreconstruction,the case in favor of the Amendments
rests on two of three arguments.The Amendmentsare valid if Congressmay finallydeterminea state governmentto be lawfuland if Article V ignorespoliticalduress,or if de facto governmentsare legally
effective and there is no duress exception.The question of duress
arises specificallywith respect to Article V, whereasboth the Luther
principleand the de facto governmentprincipleapplythroughoutthe
constitutionalsystem, coming into play whenever it is necessary to
identifythe lawfulgovernmentof a State.All three find theirjustification in termsof certainty.As I argued,if ArticleV has an implicitantiduress doctrine,its applicationbecomes fuzzier. In similar fashion,
both the recognitionpowerand the de facto governmentprincipleare
drivenby the overwhelmingneed to identifywith certaintythe effective governmentof a state.Thuswe need to know both whetherArti385 "The first amendment, however, is addressed
expressly to lawmakers.... Attention to
text earns only professional scorn in constitutional law. But when one among many constitutional limitations is literally directed against law-making, might the text perhaps embody a reason that even realists can respect?" Hans A. Linde, "Clear and Present Danger" Reexamined:
Dissonance in the Brandenburg Concerto. 22 Stan L Rev 1163,1175 (1970).
2001]
TheLawfulnessof the Reconstruction
Amendments
459
cle V itself can plausibly be read as a fairly formalisticprovision,so
that such purpose-defeatingnorms can apply to it, and whether the
Constitution as a whole has strongly formalistic features, so that it
would purchase certainty at the expense of more substantive goals
like state autonomy.
One reason to believe that Article V in particularmakes that
trade-off in favor of clarity is that it pretty clearly does so in other
contexts.A classicexample involves the operationof the three-fourths
requirement.As Ackerman explains,that number daunted the New
Dealers when they considered putting their reforms into a constitutional amendment.3It did so even though PresidentRoosevelt's support was regionally quite broad. The problem was that one-fourthplus-one of the states (the blocking minority)is only a proxy for onefourth of the people, and it can be a very bad proxy.As FDR explained in a fireside chat, there was a blocking minority of thirteen
states that contained five percent of the nation's population.3 The
voters in those thirteen states did not have to be unanimousin their
opposition,nor indeed did a majorityof them have to be opposed.All
that was necessarywas for "powerfuleconomic interests"to influence
enough legislatorsto defeat the amendment,throughfear-mongering
public relations campaignsor crass political log-rollingor some even
less savory method.88In practice,Article V can give a veto to a handful of fat cats who can influence a tiny populationin a small number
of states.It is hardto believe that the Constitutionwas designedto do
that.This is a side effect of the rule's formality:it says "three-fourths
of the States,"not "significantminority,and especially a significant
minoritythat coheres regionally."
It works the other way too. Just as Article V empowersblocking
minoritiesthat are too small underany plausibleview of its purpose,it
empowers enacting majoritiesthat are likewise too small.A political
movement that is lucky in its location in space, time, or the space of
political preferencescan enact an amendmentthat does not reflect a
long-term consensus of the substantialbulk of the politically active
people. In space the key is geographicaldistribution.A movementthat
is thinly spread over a lot of congressionaldistrictsbut virtuallyunrepresented in many others can fall well short of being a two-thirds
national majoritywhile neverthelesscommandinga two-thirdsmajority in the House. If the movement is also fortunate in narrowlycontrollingmany low-populationstates,it can have two-thirdsof the Senate and three-fourthsof the state legislatures.
386
387
386 Ackerman, 2 We the
People at 328 (cited in note 8).
387 Id at 326
(quoting Roosevelt).
388 Id.
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Another way to get luckyis to seize the momentin time,pushing
an amendmentthrough Congressand the states when unusuallyfavorable conditionstemporarilyprevail.This may well be the story of
the EighteenthAmendment,proposedduringWorldWarI when prohibitionistfervorpeaked.9Another useful tacticis a willingnessto be
a single-issue voter, refusing to support any candidate who is not
If there are enoughsuchvotersto swingan
soundon the singleissue.390
election, the candidatesof both majorparties are likely to take the
pledge.A favorablelocation in the space of politicalpreferencescan
magnifyan intenseminority'sintereston its favoriteissue.
All these are consequencesof ArticleV's formalities.If the provision's purpose is to require a stable, regionallydistributed,national
supermajorityfor constitutionalamendments,the formalitiescan defeat the purpose.That is a problem,but so is a constitutionalamendment provisionthat is too much of a standardand not enough of a
rule.Normsthat seek certaintyhave a naturalhome in ArticleV.
Moreover,both the Lutherdoctrineand the de facto government
principlecan reasonablybe attributedto the Constitutionas a whole.
With respect to Luther,the questionis whetherthe Constitutioncan
reallygive a final deciderthe powerto identifythe lawfulgovernment
of a state. In the pathologicalcase, a two-thirdsmajorityof Congress
would declare some group gatheredin a bar-roomto be the government of California,and the United States Army would support it
againstthe "rebels"who had elected the real governorand legislature
in Sacramento.That is a lot of finality to give to any institution's
judgment.
Whilethe naturaltemptationin responseis to point to the finality
claimedby the SupremeCourt,a betteransweris the finalityexplicitly
The Senate has "the sole Powerto try all
found in the Constitution.391
of the senatorsconvictthe Presidentof
If
two-thirds
Impeachments."39
high crimesand misdemeanors,the Presidentis removed.If two-thirds
of the senatorsconvictthe Presidenton patentlytrumpedup charges,
389 See Kendrick A. Clements, The
Presidency of Woodrow Wilson 256 (Kansas 1992)
(Moral reformists, including Prohibitionists, used the war to push through their proposals.). Prohibition war hysteria seems to have been like other forms of war hysteria: "The war made it easy
for drys to portray the predominantly German American brewers as subversives, if not traitors."
Richard F Hamm, Shaping the Eighteenth Amendment 240 (North Carolina 1995). On this account, prohibition was adopted in a moment of national intoxication and repealed when the
country sobered up.
390 Hamm points out that a distinctive feature of the Anti-Saloon League, in contrast to the
Prohibition Party, was its willingness to work with drys from all parties. Hamm, Shaping the
EighteenthAmendment at 132 (cited in note 389).
391 The Court claims final interpretive authority with respect to abstract questions of federal law, not just particular cases. See Cooper v Aaron, 358 US 1, 18 (1958) (Supreme Court's interpretation of the Constitution is itself the supreme law of the land.).
392 US Const Art I, ? 3, cl 6.
2001]
The Lawfulness of the Reconstruction Amendments
461
the Presidentis removed.393
The reason is easy enough to see: the last
needs
is
a
doubt as to who is President.
the
country
thing
the
most
Perhaps
striking historical lesson of We the People:
Transformationsis that the identity of the President matt,--rseven
more than we normallythink,and we normallythinkit mattersquite a
lot.39As the events of 1865 to 1869 demonstrate,a changein the presidency can swing the nation's destiny.Yet the Constitutionconfers finality on a fallible,political institutionchargedwith decidingwhether
to remove a President.It is no stretchto think that the same Constitution allows both houses together, either acting with the President or
overridinghim with a two-thirdsmajority,to decide whether a political organizationis the governmentof a state.
While the de facto governmentprincipledoes not identify a final
decider,it is nevertheless a finality norm and rests in part on the rationale common to such norms:the need for certainty.To think that
such norms are consistent with the underlyingpurpose of a constitution, one need only think that certainty is an importantpurpose of
constitutions.That should not be a hard sell. For example, arguingin
favor of the finality rule of Cooper v Aaron,35two leading theorists
emphasize finality as the very purpose of law as such.396
393 The Senate is final and there is no judicialreview.The best explanationremainsCharles
A Handbook54 (Yale 1974)("I don'tthinkI possessthe resourcesof
L. Black,Jr.,Impeachment:
rhetoricadequateto characterizingthe absurdityof thatposition[thatthere couldbe judicialreview].").The Court'sdoctrineis that impeachmentis a politicalquestionin the sense that the
relevantpoliticalbranch,the Senate,has the last word.See Nixon v UnitedStates,506 US 224,
229-36 (1993).JusticeSouterconcurredin the judgmentin Nixon,arguingthatundercertaincircumstancestheremay be judicialreviewof an impeachmentconviction.See id at 253-54.Justice
Souter did not, however,indicatethat there would be any review of a SupremeCourtdecision
reviewingan impeachmentconviction,so his suggestionwouldsimplyreplaceone final decider
with another.
394 Meditatingon the alternatepastin whichLincolnservedout his secondterm,Ackerman
concludes,
[a]llwe do knowis that JohnWilkesBooth deprivedLincolnof his chanceto steer Reconstructionto a conclusion,leavingJohnsonto generatea fact-patternthat occurswith sufficient frequencyto merit a specialname:the Vice-Presidential
exception.The patternarises
because.... of the need to maximize[a Presidentialcandidate's]electoralchancesby "balancingthe ticket"witha Vice-Presidentialnomineewho appealsto a differentconstituency.
This means that the death of a President... typicallyyields the successionof somebody
very different.
Ackerman,2 Wethe Peopleat 276 (cited in note 8).
395 358 US at 18.
396 Alexanderand Schauerexplainthe importanceof finality:
Law,therefore,providesthe benefits of authoritativesettlement,as well as the relatedbut
still content-independentbenefitsof inducingsociallybeneficialcooperativebehaviorand
providingsolutionsto Prisoners'Dilemmasand otherproblemsof coordination.Theseconsiderationsnot only providea justificationfor the existence of law,but also a justification
for obeyingit, by givingagentsreasonsto obey lawswithwhichthey disagree.
Larry Alexander and Frederick Schauer, On Extrajudicial Constitutional Interpretation,110 Harv
462
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Another leading theoristwhose work underlinesthe importance
of clear settlement by constitutionsis Bruce Ackerman.His story is
built aroundthe iron frame of Americanpolitical history under the
Constitutionof 1787, the federal electoral schedule.37That schedule
comes from the most rule-like kind of constitutionalprovision,that
kind that uses numbers.'"As Ackermanhas seen so clearly,the certaintythose numbersinducerunsthroughAmericanpolitics.It too is a
fundamentalfeature of the constitutionaldesign.Less definite terms
could better serve some other purpose,but those in the Constitution
well serve the purposeof letting everyone know when the next election is coming.
Clarityand certaintyare in substantialmeasurewhat this Constitution is about,and both the Lutherdoctrineand the de facto principle serve those ends.They are thus entirelyplausibleprinciplesfrom
the standpointof the Constitution'spurpose,even though they may
subvert other purposes like state autonomy.Certaintycan be more
importantthan more substantivegoals. Sometimes the spirit killeth,
and the letter givethlife.
L Rev 1359,1371 (1997).
397 Ackerman reveals his reliance on the electoral schedule in the following passage:
As the organizing power of ordinary legality declines, Americans discover that the Constitution contains deeper imperatives that continue to shape their struggle for power and legitimacy.
Two in particular.The first is the electoral calendar, which has proceeded remorselessly for
two hundred years. Even when protagonists challenge existing rules and principles, they are
well aware that the voters' judgment will not be long delayed.
Ackerman, 2 We the People at 384 (cited in note 8) (citations omitted).
398 See US Const Art I, ? 2 (House of Representatives composed of "Members chosen
every second Year."); id ? 3, cl 1 (senators chosen for six years); id ? 3, cl 2 (senatorial term
classes staggered so that one-third of Senate turns over every two years); id Art II, ? 1, cl 1
(President shall "hold his Office during the Term of four Years.").