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Constitutional Law Professor Chesney Class 19 Legal Tender (continued) Reconstruction and Formal Constitutional Change

Constitutional Law Professor Chesney Class 19 Legal Tender (continued) Reconstruction and Formal Constitutional Change The 13 th Amendment The Civil Rights Act of 1866 (its meaning, its constitutional foundation) The 14 th Amendment. Legal Tender Cases.

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Constitutional Law Professor Chesney Class 19 Legal Tender (continued) Reconstruction and Formal Constitutional Change

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  1. Constitutional LawProfessor Chesney • Class 19 • Legal Tender (continued) • Reconstruction and Formal Constitutional Change • The 13th Amendment • The Civil Rights Act of 1866 (its meaning, its constitutional foundation) • The 14th Amendment

  2. Legal Tender Cases One-dollar bill in 1862: “THIS NOTE IS A LEGAL TENDER FOR ALL DEBTS PUBLIC AND PRIVATE EXCEPT DUTIES ON IMPORTS AND INTEREST ON THE PUBLIC DEBT….”

  3. Hepburn v. Griswold (1870) Chief Justice Salmon P. Chase, writing for 4 justices Associate Justice Samuel Miller, writing a dissent for 3 justices Associate Justice Robert Grier resigned before the decision was announced. His separate statement basically concurred in the result of Chase’s opinion.

  4. Grant

  5. Grant

  6. Knox v. Lee (1871) Associate Justice William Strong, writing for a majority of 5 justices, overturning Hepburn Associate Justice Joseph Bradley, concurring [Chief Justice Chase and 3 others dissented.]

  7. Julliard v. Greenman (1884) Associate Justice Stephen Field, the lone dissenter Associate Justice Horace Gray, writing for a majority of 8 justices

  8. Julliard v. Greenman (1884) Associate Justice Stephen Field, the lone dissenter Associate Justice Horace Gray, writing for a majority of 8 justices

  9. War’s Aftermath: Reconstruction (1865-77) Charleston, SC - 1865 Richmond, VA - 1865

  10. Thirteenth Amendment to the US Constitution • Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. • Section 2. Congress shall have power to enforce this article by appropriate legislation.

  11. Thirteenth Amendment to the US Constitution • Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. • Section 2. Congress shall have power to enforce this article by appropriate legislation. • Required: Two-thirds majority in both Houses of Congress, followed by ratification of three-fourths of the state legislatures. • Approved by the US Senate on April 8, 1864 – Vote of 38 to 6 • Defeated by the US House on June 15, 1864 – Vote of 93 to 65 (Two-thirds majority not achieved. 23 members “not voting”.) • Approved by the US House on January 31, 1865 – Vote of 119 to 56 (Two-thirds majority achieved. Only 8 members “not voting”.)

  12. The “First Reconstruction” • By mid-December 1865, most of the former Confederate states had functioning, popularly-elected state legislatures, and 8 of these had ratified the Thirteenth Amendment. (Texas and Florida would also ratify the amendment eventually. Of the former Confederate states, only Mississippi rejected the amendment.) • Those 8 ratifications, plus 19 ratifications from Union states, were sufficient to achieve the required three-fourths majority of the state legislatures, so the Thirteenth Amendment became part of the US Constitution, ending slavery in the US forever. • Most of the former Confederate states had also elected US Representatives and Senators, who were ready to take their seats in the Thirty-Ninth Congress when it convened in December 1865.

  13. “Black Codes”

  14. Excerpts from a Louisiana Parish’s Black Code • “. . . [No] negro shall be allowed to pass within the limits of said parish without special permit in writing from his employer. Whoever shall violate this provision shall pay a fine of two dollars and fifty cents, or in default thereof shall be forced to work four days on the public road, or suffer corporeal punishment . . .” • “. . . Every negro who shall be found absent from the residence of his employer after ten o’clock at night, without a written permit from his employer shall pay a fine of five dollars, or in default thereof, shall be compelled to work five days on the public road, or suffer corporeal punishment . . .” • “. . . No negro shall be permitted to rent or keep a house within said parish. Any negro violating this provision shall be immediately ejected and compelled to find an employer; and any person who shall rent, or give the use of any house to any negro, in violation of this section, shall pay a fine of five dollars for each offence.” • “. . . Every negro is required to be in the regular service of some white person, or former owner, who shall be held responsible for the conduct of said negro. . .” • “. . . No public meetings or congregations of negroes shall be allowed within said parish after sunset; but such public meetings and congregations may be held between the hours of sunrise and sunset, by the special permission in writing of the captain of patrol . . . This prohibition, however, is not to prevent negroes from attending the usual church service, conducted by white ministers and priests. . .”

  15. Congress Takes Over • December 4, 1865: • The Thirty-Ninth Congress, elected at the end of 1864, convenes for the first time. (Congress had not been in session since March 1865, giving President Johnson a free hand throughout most of the year.) • The Republican majority refused to seat the Southern delegations, which included many former Confederate officials. • The majority’s position was clearly explained by The Nation (Dec. 7, 1865): • “What is called “the reconstruction policy” of President Johnson is merely tentative and initiatory, and it remains for the legislative branch of the Government to take a deliberative survey of the whole field, to confirm or annul such acts of the Executive as do not rest upon positive law, and to fix, by appropriate legislation, the whole policy of the future.” • The seating of the Southern delegations would have prevented the Republicans from obtaining the two-thirds majority of Congress necessary to pass any future constitutional amendments and to override any vetoes by President Johnson. • This would have severely hindered the majority’s efforts to perform what it saw as its duties: • To set the terms on which the southern states would be fully readmitted (rather than to merely accept Johnson’s plan), and • To take steps to protect the millions of freedmen • This second duty was made more critical by the rapid enactment of “Black Codes” by many of the new southern legislatures.

  16. In December 1865, Congress formed a Joint Committee on Reconstruction, which would “enquire into the conditions of the [former Confederate] States . . . and report whether they or any of them are entitled to be represented in either House of Congress . . .” On January 5, 1866, Senator Lyman Trumbull of Illinois, chairman of the Senate Judiciary Committee, introduced two bills: The Freedmen’s Bureau Bill (S. 60) The Civil Rights Bill (S. 61) Congress Takes Over

  17. The Civil Rights Bill • Proposed Section 1: “That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; that there shall be no discrimination in civil rights or immunities among the inhabitants of any State or Territory of the United States on account of race, color, or previous condition of slavery; but the inhabitants of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.”

  18. The Civil Rights Bill • Enacted Version of Section 1: “That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.”

  19. The Civil Rights Bill • Enacted Version of Section 2: “Any person who, under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any right secured or protected by this act, or to different punishment, pains, or penalties on account of such person having at any time been held in a condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, or by reason of his color or race, than is prescribed for the punishment of white persons, shall be deemed guilty of a misdemeanor, and, on conviction, shall be punished by fine not exceeding one thousand dollars, or imprisonment not exceeding one year, or both, in the discretion of the court.” [Sections 3 through 10 detailed how Sections 1 and 2 would be enforced.]

  20. The Civil Rights Bill • Passed by the Senate (33 to 12) – February 2, 1866 • Passed by the House (111 to 38, 34 “not voting”) – March 13, 1866 • Vetoed by President Johnson • Veto overridden by Senate (33 to 15) – April 6, 1866 • Veto overridden by House (122 to 41, 21 “not voting”) – April 9, 1866

  21. Meanwhile, the Congressional Joint Committee on Reconstruction had been drafting a new constitutional amendment dealing with several issues, submitted to Congress on April 30, 1866: - The Fourteenth Amendment

  22. 14th Amendment – Section 2:The “most important” section (at the time) • Enacted version of Section 2 – “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.”

  23. 14th Amendment – Section 1:The “most important” section (in hindsight) • Enacted version of Section 1: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

  24. The 14th Amendment - Ratification • Approved by the US Senate (33 to 11) – June 8, 1866 • Approved by the US House (120 to 32) – June 13, 1866 • Three-fourths of the 36 state legislatures had to ratify the amendment: • 27 states were required • One by one, the Southern legislatures rejected the amendment, as did border states like Kentucky, Delaware, and Maryland. By early 1867, it was clear that the amendment would fail to achieve ratification by 27 states. • [The lone exception was Tennessee, which ratified on July 19, 1866, and was readmitted to representation in Congress on July 24, 1866.]

  25. President Johnson publicly disapproved of the new Fourteenth Amendment, as well as most of the Republicans’ other policies. He believed that the Southern states should be immediately readmitted to full participation in the Union. As the fall 1866 congressional elections approached, Johnson campaigned throughout the Northern states, vigorously denouncing the Radical Republicans and their policies, and trying to build support for his own Reconstruction policies and for congressional candidates who would side with him. The Second Reconstruction:“Congressional Reconstruction”

  26. Unfortunately for Johnson, his rambling, bitter speeches, full of abuse for Republicans (“common gang of cormorants and bloodsuckers”) and even members of his audience (as in the previous excerpt) succeeded in alienating far more voters than they won over. Making matters worse for him, 1866 saw several bloody riots in Southern cities: - A race riot in Memphis killed forty black soldiers. - A battle in New Orleans between former Confederates (including most of the local officials) and Unionists who wished to hold a convention in the city left forty Unionists, white and black, dead. All this led to a spectacular Republican victory in the fall. The Republicans won a majority of almost 3 to 1 in the House and almost 4 to 1 in the Senate. Now the Republicans could overcome any veto by President Johnson, and Congress was firmly in control. The Second Reconstruction:“Congressional Reconstruction”

  27. The First Reconstruction Act - March 2, 1867 (passed over Johnson’s veto): Dissolved the existing Southern state governments. Put the Southern states under the control of the US military, dividing the South into five military districts. It was the duty of the commanding officers of each district “to protect all persons in their rights of person and property, to suppress insurrection, disorder, and violence, and to punish, or cause to be punished, all disturbers of the public peace and criminals.” To this end, the commanding officers could allow local civil tribunals to try offenders, or they could “organize military commissions or tribunals for that purpose.” The Southern states were to be readmitted after: They held new state constitutional conventions (delegates elected by all male citizens over 21, regardless of race) The conventions adopted new state constitutions providing for black suffrage The constitutions were ratified by a majority of eligible voters (same criteria as above) The constitutions were approved by Congress The legislatures elected under these new constitutions ratified the Fourteenth Amendment The Fourteenth Amendment became part of the Constitution The Second Reconstruction:“Congressional Reconstruction”

  28. The Second Reconstruction:“Congressional Reconstruction”

  29. The Second Reconstruction:“Congressional Reconstruction” • Congress passed Supplementary Reconstruction Acts on March 23, 1867, and July 19, 1867, both over vetoes by President Johnson. • The first Supplementary Act disenfranchised a large number of former Confederate office-holders. (One estimate is around 18,000.) • Fearful that the Supreme Court would declare the First Reconstruction Act unconstitutional – at least the section authorizing trials by military commission for civilians – in the upcoming case Ex parte McCardle, Congress withdrew (over Johnson’s veto) a portion of the Court’s jurisdiction over habeas corpus cases – just enough to place the McCardle case outside the Court’s jurisdiction. (March 1868) • Congress had previously (in 1866) reduced the number of Justices on the Court from 10 to 7, preventing Johnson from making any new appointments. • In March 1867, Congress passed the Tenure of Office Act (over Johnson’s veto), limiting the President’s power to remove cabinet officials.

  30. The Tenure of Office Act (March 2, 1867) • In late 1867, Johnson decided to replace Secretary of War Edwin Stanton, a Lincoln appointee who had aligned himself with the Radical Republicans in Congress against Johnson’s policies. • When Stanton refused to resign, Johnson suspended Stanton until the Senate could confirm his removal. The Senate resoundingly rejected Stanton’s removal, but on February 21, 1868, Johnson sacked Stanton anyway and appointed a replacement, claiming that the Tenure of Office Act was unconstitutional.

  31. President Johnson’s Impeachment Trial • Within 3 days, on Feb. 24, 1868, the House of Representatives voted to impeach Johnson. • On March 2nd and 3rd, the House agreed upon eleven articles of impeachment: • Articles I to VIII focused on the removal of Secretary Stanton, in violation of the Tenure of Office Act • Article IX charged that Johnson had violated the Army Appropriation Act of March 2, 1867 by directly giving an order to an army officer instead of issuing it “through the General of the Army.” • Article X charged that Johnson tried to bring “disgrace, ridicule, [and] hatred” upon Congress by “intemperate, inflammatory, and scandalous harangues” (his campaign speeches in 1866). • Article XI made general charges summarizing Articles I through X.

  32. President Johnson’s Impeachment Trial –March-May 1868

  33. President Johnson’s Impeachment Trial –March-May 1868

  34. President Johnson’s Impeachment Trial –March-May 1868 • Required for conviction: Two-thirds of the 54 senators, or 36 votes • May 16, 1868: Senate Vote on Article XI: • 35 Guilty, 19 Not Guilty (Guilty = 35 Republicans, Not Guilty = 10 Republicans + 9 Democrats) • May 26, 1868: Senate Votes on Articles II and III: • 35 Guilty, 19 Not Guilty • May 26, 1868: The impeachment trial ends. • Andrew Johnson remains US President and Edwin Stanton resigns as Secretary of War.

  35. Southern States Readmitted • Between April 6th and July 13th, 1868, Arkansas, Florida, North Carolina, South Carolina, Louisiana, and Alabama ratified the Fourteenth Amendment. • By July 13th, all six of these states were readmitted to full representation in Congress. • Virginia, Texas, and Mississippi were finally readmitted in 1870. • Georgia was briefly readmitted in 1868, expelled again in 1869, and “reconstructed” for a third time before being re-readmitted in 1870. _________________________________ • The Fourteenth Amendment was declared adopted by Congress on July 21, 1868, and by Secretary of State William H. Seward on July 28.

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