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The Fourteenth Amendment And The Continuing Struggle
For The Principle of Natural Law As The Foundation of
American Constitutional Practice

Part II 
Fredric W. Henderson

 

    In Part I of this article, Mr. Henderson elaborated the actual roots of the Fourteenth Amendment, based in the republican tradition of “natural law” as intended by the nation’s founders. This concept, embedded in the Declaration of Independence and Constitution (particularly it's Preamble) was quite different than the notions of higher law or Lockean freedom usually identified as the core of both those documents and of the spirit of the framers of the post Civil War Amendments and “Reconstruction” legislation. Rather it was an outlook, as exemplified by that of Abraham Lincoln, Frederick Douglass, Thaddeus Stevens, William Kelley, and others, the tradition of G. W. Liebniz, transmitted to them by particularly John Quincy Adams, that animated their views on a post war re-establishment of the original intent of the best of the architects of the American nation. Part II describes the actual battle lines of those in the Thirty-ninth Congress, which proposed and passed the Fourteenth Amendment, who intended to see this most fundamental battle won. 

- The Fourteenth Amendment and Natural law –

 

   Much has been written on the issue of the intent of the Thirty-Ninth Congress in drafting the Fourteenth Amendment, yet the amount of actual debate in Congress on this proposed addition to the Constitution was unusually scant. In a sense, this was because almost all of that body understood what the intention was, for as we have noted before, the conception that was the simple, but fundamental, premise of the Amendment was elaborated from the first day Congress reconvened at war’s end, and was the foundation of all of the debate on post war policy.  The principles and outlook we have discussed above, that transmitted by such figures as John Quincy Adams, and held by Abraham Lincoln, Thaddeus Stevens, Frederick Douglass, and others, in opposition to both the remnants of British positivist thought engrafted into American constitutional thinking, and its contemporary manifestations, was that which animated the Fourteenth Amendment.

   Central to the debate, however, was Thaddeus Stevens’ and William Kelley’s argument that the powers it conveyed to the Federal government were totally consistent with the powers already contained in the Constitution.  Stevens would, within months of the end of the war, even before Congress convened again, and from the very first debates in Congress on the nation’s policy towards the South, argue that the purpose of any legislative or other measures must be to conform the compromised organic law of the land to the original intent of the Declaration and Constitution.  In December of 1865, Stevens had opened the debates on post-war policy with a speech in which he had stated this same principle:

    “When the great and good men promulgated that instrument [the Declaration ed.], and pledged their lives and sacred honors to defend it, it was supposed to form an epoch in civil government. Before that time it was held that the right to rule was vested in families, dynasties, or races, not because of superior intelligence or virtue, but because of a divine right to enjoy exclusive privileges."

    "Our fathers repudiated the whole doctrine of the legal superiority of families or races, and proclaimed the equality of men before the law. Upon that they created a revolution and built the Republic. They were prevented by slavery from perfecting the superstructure whose foundation they had thus broadly laid. For the sake of the Union they consented to wait, but never relinquished the idea of its final completion. The time to which they looked forward with anxiety has come. It is our duty to complete this work. If this Republic is not now made to stand on their great principles, it has no honest foundation, and the Father of all men will still shake it to its center. If we have not yet been sufficiently scourged for our national sin to teach us to do justice to all God's creatures, without distinction of race or color, we must expect the still more heavy vengeance of an offended Father, still increasing his afflictions, as he increased the severity of the plaques of Egypt until the tyrant consented to do justice."

    Keeping in mind these considerations, and on the basis of the understanding described above, on January 31, 1866, shortly after Congress had returned to Washington following the end of the war, Congressional leader Thaddeus Stevens articulated the character of how he viewed the issue of the flaws in American constitutional law, and thus its political and economic practice, and its remedy, given the causes and outcome of that conflict.

    "Sir, our fathers made the Declaration of Independence; and that is what they intended to be the foundation of our Government. If they had been able to base their Constitution on the principles of that Declaration it would have needed no amendment during all time, for every human being would have had his rights; every human being would have been equal before the law; and no oppression could have been effected except through usurpation against the principles of that Government."

    "But it so happened when our fathers came to reduce the principles on which they founded this Government into order, in shaping the organic law, an institution hot from hell appeared among them, which has been increasing in volume and guilt ever since. It obstructed all their movements and all their actions, and precluded them from carrying out their own principles into the organic law of this Union. But rather than not have harmony among those thirteen colonies, they postponed and compromised. They compromised their principles for what they deemed a greater good, believing a short time would work a cure, and purify the institution which they admitted to be clogged by it." '

    "....The time has come when we can make the Constitution what our fathers desired to make it. The time has come when through blood every stain has been washed out unless we choose to reestablish it...."

    Stevens, thus, made clear the true task that lay before the nation with the defeat of the so-called Confederacy. He would in the same speech pose the historic responsibility that was thus placed on the nation’s lawmakers, both Congress and President.

    “....I believe there is entrusted to Congress a high duty, no less important and no less fraught with the weal or woe of future ages than was entrusted to the august body that made the Declaration of Independence. I believe now, if we omit to exercise that high duty, or abuse it, we shall be held to account by future generations of America, and by the whole civilized world that is in favor of freedom, and that our names will go down to posterity with some applause, or with black condemnation if we do not treat the subject thoroughly, honestly, and justly, in reference to every human being on this continent....”

    This outlook, that Stevens and a circle of his associates in the Republican Party shared, they repeatedly raised as the foundation for all post war policy throughout the debates on “reconstruction” from 1865--1868.  It was this simple, but fundamental, conception that was the motivating principle of, most particularly, the Fourteenth Amendment.  This view was also totally consistent with that articulated by Abraham Lincoln, both before and during the war, and which was explicitly part of those policies, through which Lincoln began to define how the nation would change as a result of the war. It also was thoroughly consistent with the tradition of the best of the architects of the Constitution and with the views expressed by their republican descendants, figures like John Quincy Adams, in the years leading up to the “inevitable conflict” of 1861.

    What Congress intended with the adoption of the 14th Amendment, a much debated issue, as well as the rest of the post-war reconstruction legislation is clear. They wished to insure that the measures to prevent from ever appearing again such an oligarchical threat to the American republic, of the type represented by what the South had become prior to 1865, be guaranteed, safe from legislative repeal, or supersession, and executive inaction.  They were motivated by the desire to protect the gains established with the defeat of the South and the measures, like the Civil Rights Act and the second Freedman's Bureau legislation, designed to facilitate and insure a change in the South.  The foundation for this was the specific elaboration of principles, and the powers to insure their adoption in practice, that had lain dormant, because subverted, for approximately 75 years.

     In the midst of the debates on the Fourteenth Amendment, Congressman William Kelley, would give an extraordinary speech in which he argued that not a single power, either explicitly expressed, or implied, contained in the amendment was not already existent in the Constitution.  Kelley, best known for his lengthy speeches in the tradition of Henry Clay on ‘American System’ economics, began what would be one of the longest speeches on the Amendment, by arguing that his support for the 14th Amendment was based on the need to make explicit and irreversible the guarantees to equal protection already contained in the Constitution.

    “I shall support this amendment of the Constitution of the United States, not because I believe it to be absolutely needed, but because there are those, and some of them on this side of the House, who doubt that the powers to be imparted by it are already to be found in the Constitution. I believe them to have been there from the hour of its adoption. They proceeded the amendments proposed by the first Congress, and their existence is, as I will show, proven by the actions of that Congress which was largely composed of members of the Convention that framed the Constitution and of the several State conventions that ratified it.'' 

   Kelley admonished his colleagues “that when the States recognize the equality of all their people before the laws they will have no cause to dread congressional censorship.”

    Kelley then addressed the provision in the Constitution, Art. I, Section IV, giving the Federal government the power to regulate the election of members of Congress, quoting from James Madison during the debates on it’s ratification in the Virginia convention:

    "....Should the people of any State by any means be deprived of the right of suffrage, it was judged proper that it should be remedied by the General Government....It was found necessary to leave the regulation of this, in the first place, to the State governments, as being best acquainted with the situation of the people, subject to the control of the General Government, in order to enable it to produce uniformity and prevent its own dissolution....Were they exclusively under the control of the State governments the General Government might easily be dissolved. But if they be regulated properly by the State Legislatures, the congressional control will very probably never be exercised...."

    Kelley followed by quoting extensively from the debates at the Constitutional convention, and drew attention to the clear understanding of the founders for the need for some other form of government than that of the Confederation that then existed. Starting with Rufus King's repudiation of the idea of a government erected on a compact of states, Kelley then explained the standpoint from which the debates on the issue of the extent of the Federal governments powers had to be viewed to understand properly the intent of the Constitution's architects

    “ ‘Although this scheme of erecting the General Government on the authority of the State Legislatures has been fatal to the Federal establishment, it would seem as if many gentlemen still foster the dangerous idea’

    “What had brought the Confederacy [the original under the Articles of Confederation. ed.], then expiring, to its death throe? It was the fact that it rested upon the Legislatures of the States; and the members of the Convention framing an instrument which should make a `more perfect Union,' placed this vital power where it should be, where it would be used for the maintenance of the Union; and did not confide it to the States which had just used it for the destruction of the Confederacy.”

    He then went on, diabolically stating he would be governed by the very standards for constitutional interpretation then in currency with the opponents of such broad powers:

     “Sir, I wish to project upon this House no new view. I desire to invoke no new rules of construction, but I am willing to be bound by those which prevail in all our courts, and in the courts of the land from which we derive our laws. They are most briefly and explicitly expressed by Blackstone [William Blackstone, British positivist jurist of the 18th century], and from his pages I take my rules of construction:

    `The fairest and most rational method to interpret the will of the legislator is by exploring his intentions at the time when the law was made, by signs most natural and probable, and these signs are either the words, the context, the subject-matter, the effects and consequence, or the spirit and reason of them all.'

    "The Constitution, adopted as it was to cure the defects of the Articles of Confederation, may be regarded as a remedial statute. The old Constitution, the Articles of Confederation, had failed utterly to accomplish its purpose. A new one was to be made to remedy its defects."

|"Again from Blackstone:

    `There are three points to be considered in the construction of all remedial statutes-- the old law, the mischief, and the remedy: that is, how the common law stood at the making of the act, what the mischief was for which the common law did not provide, and what remedy the Parliament had provided to cure this mischief.'

    "Binding myself by these rules of construction, I undertake to make good the doctrine that they who framed and adopted the Constitution of the United States did it to remedy the evil of a General Government depending upon the judgement, caprice, or prejudices of the people of each of the several States. The Confederacy had crumbled from its false foundation upward to its cap-stone, and their object was to make a more perfect Union, one that would secure the blessings of liberty to themselves and their posterity till the last syllable of recorded time. Their purpose was to escape from chaos and to create and perpetuate order. The Union for which they provided was to rest on the suffrages of freemen, each equal of others before the law, and was to be indivisible and indestructible''

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