NARRATOR: Thanks for joining this episode of the No. 86 lecture series, which continues the conversation in the 85 Federalist Papers about the proper structure of government. Today’s episode features Christopher Green, Professor of Law and Jamie L. Whitten Chair in Law and Government at the University of Mississippi School of Law. This episode is Part 2 of a four part series on the Constitution and the Reconstruction Amendments. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. PUBLIUS: Professor Green, in a previous episode we discussed the nature of amendments and how they shift the emphasis to or from certain Constitutional powers. Have some amendments created a more dramatic shift than others? CHRISTOPHER GREEN: I think the three most important amendments changing the text of the Constitution are the 13th, 14th, and 15th Amendments. So the text added by the 13th Amendment, neither slavery nor involuntary servitude accept as a punishment for crime where of the party shall have been duly convicted shall exist within the United States or any place subject to their jurisdiction. And then Section 2, Congress shall have power to enforce this article by appropriate legislation. The 13th Amendment is an extraordinarily important change in the Constitution, because if you look at the original Constitution, the original Constitution protects slavery in three separate provisions. Article 1, Section 2, Clause 3 gives a bonus in representation to the Southern states even though the enslaved population that that is based on, we're not able to vote. Article 1, Section 9, Clause 1 protects the slave trade for 20 years until 1808, and Article 4, Section 2, Clause 3 protects the right of the owners of enslaved people to re-enslave their fugitives. Article 1, Section 9, Clause 1 does by a limitation talking about states now existing. Article 1, Section 9, Clause 1 does protect the Northwest ordinance [00:30:00] which allows free territory in part of the United States. But the 13th Amendment now says we're going to have no slavery in any place subject to the jurisdiction of the United States. That's the 13th Amendment. The 14th Amendment establishes citizenship for at the freedman. So the 14th Amendment says, Section 1... And Sections 1 and 5 of the 14th Amendment are the most important parts of it. Section 1 says, "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." And Section 5 says, "The Congress shall have power to enforce by appropriate legislation the provisions of this article." Now, the 14th Amendment establishes citizenship and establishes an equality of rights for all citizens of the United States. This was not something that the original Constitution was particularly clear about. Article 1, Section 8, Clause 4 gave Congress the power to naturalize citizens of other countries, make them citizens of the United States. But it was very unclear exactly what rights a new citizen would get when those citizens were naturalized. The 14th Amendment is concerned about discrimination against the new citizens, the freedman who were made citizens by the Civil Rights Act of 1866. That citizenship declaration is then Constitutionalized in the 14th Amendment's first sentence and the Privileges or Immunities Clause prohibit states from cutting back and giving a smaller reduced set of privileges to those new citizens of the United States. If you look at the 13th, 14th and 15th Amendments, what they do is they take the freedman up. They each take the freedman up one level in the status hierarchy. So the original Constitution actually refers to them in all three of the provisions protecting slavery as persons. So it's not right to say enslaved persons were not treated as persons. Article 1, Section 2, Clause 3, Article 1, Section 9, Clause 1, and Article 4, Section 2, Clause 3, all referred to enslaved persons with that word persons. But we go from persons to free persons. It's possible to not be a free person under the original Constitution, but under the 13th Amendment, all of those person have to be free. Okay. So we go from enslaved person to free person by the 13th Amendment. The 14th Amendment then takes people from the status of free persons to the status of citizens. So the freedmen are not to be given merely the rights given to citizens of some other country, they can't be prohibited for instance from owning land, they have to be citizens. Then the 15th Amendment takes the freedman from the status of mere citizens that the government has to treat properly to voters or electors, people who have to have a share in the decision-making processes of the government itself. So the 13th Amendment takes us from enslavement to freedom, the 14th Amendment takes us from mere freedom to citizenship, and the 15th Amendment takes us from citizenship to participation in the political process. PUBLIUS: Can you describe the ratification process for the 13th, 14th and 15th amendments after the Civil War? CHRISTOPHER GREEN: So one big puzzle for the Union, for mostly the Republicans, the unionists who were running the federal government during the Civil War, was how they were going to deal with the Constitution. Early on, there were a lot of people who said, "We should have the Constitution as it was, the Constitution as it is, the Union as it was." But it became clear as the war dragged on, especially after The Battle of Shiloh in early 1862, it was very clear that the South was being sufficiently intransigent we had to have Constitutional reform if we were ever going to have a union that was going to permanently existing without any agitation about the slavery issue. But the problem was we need three quarters of the states to agree to ratify under Article 5, but a third of the states had seceded in 1860-1861. So in 1860, we have 33 states in the Union. And by the time of the end of the secession, the spring of 1861, 11 of those 33 had seceded. So the remaining loyal states would not have amounted to three quarter sufficient to ratify. In Congress in early 1864, Congress proposes the 13th Amendment and the Senate initially approves it but it's narrowly defeated in the House. The House approves it in January, 1865. It's not clear at that point exactly which states the 13th Amendment is going to be sent to ratify. So broadly speaking, there were three, they still are, categories of theory by which we can explain the legitimacy of the 13th, 14th, and to some extent, the 15th Amendments. One theory is what we might call the loyal denominator theory. The idea is... So in 1865, by that point we had added West Virginia, which was sniped off from Virginia in 1863. And we'd added Nevada in 1864. So the Union is up to 35 states. And if you look at three quarters of that we would need 27 states. But if you look at the loyal 25, you only need 19 states. So it would've been possible, of course, to have three quarters of the loyal states. They would say there was a tacit restriction on the term state in Article 5, just as there's a tacit restriction on the term state in Article 1 about who is allowed to send representatives to Congress, just like there's a tacit limit on who is allowed to propose electors under Article 2, Section 1, Clause 2, state in Article 5 only refers to loyal states or maybe reliably loyal states. So in 1865, it's not clear whether we are sending this new 13th Amendment to all of the states or to only the loyal states. We get to three quarters of the loyal states ratifying the 13th Amendment in June, 1865. So in the fall of 1865, there are some people who say the 13th Amendment is already part of the Constitution. So by this point, Abraham Lincoln has been assassinated and Andrew Johnson is running the administration, he's president. And he tells the Southern states, "Hey, if you ratify the 13th Amendment, you can say that you really were in the Union all along. And the 13th amendment is essentially going to be the peace treaty that ends the war. You can come back in, you ratify the 13th Amendment. We can pretend you are never gone." But the problem with that is, in December, 1865, when the Southern representatives from Southern states that ratify the 13th Amendment, when they show up at Congress, the Republicans say, "Whoa, the 13th Amendment is not the peace treaty ending the war. We need some additional guarantees." So, that's where we get the 14th Amendment. And you have exactly the same question arising. How many states do you need to ratify the 14th Amendment? So all of that happens on December 4th, 1865. Two days after that actually is when we get to three quarters of the full 36 states in the Union if that is going to be the relevant denominator. So in December, 1865, all in the spring of 1866, there is a big question about how many states you need under Article 5. What is the denominator? And people say, "Hey, there's 36 stars on the flag. There should be 36 states that you need to ratify under Article 5. You have a similar question about Article 1. These representatives are not admitted to Congress. So people say, "President Johnson has recognized these governments as legitimate governments after the war. These are governments that should be allowed to send people to Congress, conduct elections for the house and appoint people for the Senate." But the Republicans in charge of Congress say, "No, this is not over until we say it's over." So broadly speaking, one theory of the legitimacy of the 13th and 14th Amendments is the loyal denominator theory. A second theory is that it was okay for Congress to condition representation on ratification of the 13th and 14th Amendments. So in 1865, President Johnson says to the South, "Look, you have no chance of getting rights under the federal Constitution if you do not ratify the 13th Amendment." Those ratifications, there's no question about it, were coerced by President Johnson telling them to ratify. He virtually issued them an order to ratify. Similarly, in the 14th Amendment case, Congress tells the South in March, 1867, "You are only allowed to come back into representation in Congress if you ratify the 14th Amendment." Congress proposes the 14th Amendment in the spring and early summer of 1866. It goes to the South. In February, 1867, we get to three quarters of the loyal states. A few weeks after that, in March, 1867, we get the Reconstruction Acts, which tell the South, "You have to allow Black voting, you have to allow voting by the African American population, and you are not going to get represented in Congress until you ratify the 14th Amendment." Tennessee was the only Southern state to take them up on that offer. They actually accepted the implicit offer in July, 1866. So Congress proposes the 14th Amendment in June, 1866. Tennessee right away in July, 1866 says, "Oh, we'll ratify the 14th Amendment." Just before the end of that session of the 39th Congress they say, "Welcome Tennessee. You can join us for the last couple of days of this session. You have ratified the 14th Amendment. It's not the law yet. We don't have three quarters of whatever the denominator is, but you are now part of the Union in full capacity. You have the right to exercise your Article 1 powers, you're going to have the right to exercise your Article 2 powers, and you have the right to exercise your Article 5 powers to ratify the amendment." After 1867, after Congress tells the South, "You've got to ratify this amendment in order to get into Congress," basically the Southern states do. Most of the White population says, "We're not even going to participate in these Southern reconstruction governments." The African Americans are allowed to vote and they produce new governments in early 1868, almost all of which ratify the 14th Amendment. And then in July, 1868, Nebraska has joined the Union in March, 1867 by the way, so [00:44:00] even assuming we have a full denominator of 37 states, we have gotten to three quarters of that by July, 1868. The second theory of the legitimacy of the 14th Amendment is that that coercion was okay. It's okay to have federal pressure placed on states even when they're doing something as solemn and as important as ratifying a Constitutional amendment under Article 5. Okay. That's the second theory. The third theory of legitimacy is essentially that things that happened at the federal realm later on legitimize the process of amendment. So Bruce Ackerman, for instance, has a complicated theory according to which the machinations at the impeachment trial of Andrew Johnson in the spring of 1868 and his acquiescence in the 14th Amendment in the summer of 1868, that's what makes the 14th Amendment legitimate. Some people point to the 1872 democratic platform. In 1868, and 1869, 1870, 1871, early 1872, lots of Democrats say, "Well, 14th Amendment? That's not part of the Constitution." You can actually find copies of the Constitution in treatises that'll have an asterisk next to the 14th Amendment saying, "Well, there's this thing that lots of Northerners think is part of the Constitution, but it's not part of the Constitution." In 1872 though, the National Democratic Campaign Platform specifically says, "We accept the legitimacy of the 14th Amendment and we are not going to agitate about that anymore." So some people say, "Oh, well, that's the point when it actually became part of the Constitution, when we had enough of a consensus on those principles that we could say that's part of what we're swearing in oath to support when we swear to support this Constitution." Some people look even further down the road. They say it's only after decisions like Brown versus Board of Education, or even some say Roe v. Wade, only when those kinds of things happen that make the 14th Amendment into a vehicle for what those folks think of as a good Constitution. Only after that, does it become legitimate and part of the Constitution. NARRATOR: Thank you for listening to this episode of the No. 86 Lecture series. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, Originalism, the Judiciary and more. Thanks for listening. See you in class! TRANSCRIPT - VERBATIM FOR YOUTUBE Thanks for joining this episode of the No. 86 lecture series, which continues the conversation in the 85 Federalist Papers about the proper structure of government. Today’s episode features Christopher Green, Professor of Law and Jamie L. Whitten Chair in Law and Government at the University of Mississippi School of Law. This episode is Part 2 of a four part series on the Constitution and the Reconstruction Amendments. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. Professor Green, in a previous episode we discussed the nature of amendments and how they shift the emphasis to or from certain Constitutional powers. Have some amendments created a more dramatic shift than others? I think the three most important amendments changing the text of the Constitution are the 13th, 14th, and 15th Amendments. So the text added by the 13th Amendment, neither slavery nor involuntary servitude accept as a punishment for crime where of the party shall have been duly convicted shall exist within the United States or any place subject to their jurisdiction. And then Section 2, Congress shall have power to enforce this article by appropriate legislation. The 13th Amendment is an extraordinarily important change in the Constitution, because if you look at the original Constitution, the original Constitution protects slavery in three separate provisions. Article 1, Section 2, Clause 3 gives a bonus in representation to the Southern states even though the enslaved population that that is based on, we're not able to vote. Article 1, Section 9, Clause 1 protects the slave trade for 20 years until 1808, and Article 4, Section 2, Clause 3 protects the right of the owners of enslaved people to re-enslave their fugitives. Article 1, Section 9, Clause 1 does by a limitation talking about states now existing. Article 1, Section 9, Clause 1 does protect the Northwest ordinance [00:30:00] which allows free territory in part of the United States. But the 13th Amendment now says we're going to have no slavery in any place subject to the jurisdiction of the United States. That's the 13th Amendment. The 14th Amendment establishes citizenship for at the freedman. So the 14th Amendment says, Section 1... And Sections 1 and 5 of the 14th Amendment are the most important parts of it. Section 1 says, "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." And Section 5 says, "The Congress shall have power to enforce by appropriate legislation the provisions of this article." Now, the 14th Amendment establishes citizenship and establishes an equality of rights for all citizens of the United States. This was not something that the original Constitution was particularly clear about. Article 1, Section 8, Clause 4 gave Congress the power to naturalize citizens of other countries, make them citizens of the United States. But it was very unclear exactly what rights a new citizen would get when those citizens were naturalized. The 14th Amendment is concerned about discrimination against the new citizens, the freedman who were made citizens by the Civil Rights Act of 1866. That citizenship declaration is then Constitutionalized in the 14th Amendment's first sentence and the Privileges or Immunities Clause prohibit states from cutting back and giving a smaller reduced set of privileges to those new citizens of the United States. If you look at the 13th, 14th and 15th Amendments, what they do is they take the freedman up. They each take the freedman up one level in the status hierarchy. So the original Constitution actually refers to them in all three of the provisions protecting slavery as persons. So it's not right to say enslaved persons were not treated as persons. Article 1, Section 2, Clause 3, Article 1, Section 9, Clause 1, and Article 4, Section 2, Clause 3, all referred to enslaved persons with that word persons. But we go from persons to free persons. It's possible to not be a free person under the original Constitution, but under the 13th Amendment, all of those person have to be free. Okay. So we go from enslaved person to free person by the 13th Amendment. The 14th Amendment then takes people from the status of free persons to the status of citizens. So the freedmen are not to be given merely the rights given to citizens of some other country, they can't be prohibited for instance from owning land, they have to be citizens. Then the 15th Amendment takes the freedman from the status of mere citizens that the government has to treat properly to voters or electors, people who have to have a share in the decision-making processes of the government itself. So the 13th Amendment takes us from enslavement to freedom, the 14th Amendment takes us from mere freedom to citizenship, and the 15th Amendment takes us from citizenship to participation in the political process. Can you describe the ratification process for the 13th, 14th and 15th amendments after the Civil War? So one big puzzle for the Union, for mostly the Republicans, the unionists who were running the federal government during the Civil War, was how they were going to deal with the Constitution. Early on, there were a lot of people who said, "We should have the Constitution as it was, the Constitution as it is, the Union as it was." But it became clear as the war dragged on, especially after The Battle of Shiloh in early 1862, it was very clear that the South was being sufficiently intransigent we had to have Constitutional reform if we were ever going to have a union that was going to permanently existing without any agitation about the slavery issue. But the problem was we need three quarters of the states to agree to ratify under Article 5, but a third of the states had seceded in 1860-1861. So in 1860, we have 33 states in the Union. And by the time of the end of the secession, the spring of 1861, 11 of those 33 had seceded. So the remaining loyal states would not have amounted to three quarter sufficient to ratify. In Congress in early 1864, Congress proposes the 13th Amendment and the Senate initially approves it but it's narrowly defeated in the House. The House approves it in January, 1865. It's not clear at that point exactly which states the 13th Amendment is going to be sent to ratify. So broadly speaking, there were three, they still are, categories of theory by which we can explain the legitimacy of the 13th, 14th, and to some extent, the 15th Amendments. One theory is what we might call the loyal denominator theory. The idea is... So in 1865, by that point we had added West Virginia, which was sniped off from Virginia in 1863. And we'd added Nevada in 1864. So the Union is up to 35 states. And if you look at three quarters of that we would need 27 states. But if you look at the loyal 25, you only need 19 states. So it would've been possible, of course, to have three quarters of the loyal states. They would say there was a tacit restriction on the term state in Article 5, just as there's a tacit restriction on the term state in Article 1 about who is allowed to send representatives to Congress, just like there's a tacit limit on who is allowed to propose electors under Article 2, Section 1, Clause 2, state in Article 5 only refers to loyal states or maybe reliably loyal states. So in 1865, it's not clear whether we are sending this new 13th Amendment to all of the states or to only the loyal states. We get to three quarters of the loyal states ratifying the 13th Amendment in June, 1865. So in the fall of 1865, there are some people who say the 13th Amendment is already part of the Constitution. So by this point, Abraham Lincoln has been assassinated and Andrew Johnson is running the administration, he's president. And he tells the Southern states, "Hey, if you ratify the 13th Amendment, you can say that you really were in the Union all along. And the 13th amendment is essentially going to be the peace treaty that ends the war. You can come back in, you ratify the 13th Amendment. We can pretend you are never gone." But the problem with that is, in December, 1865, when the Southern representatives from Southern states that ratify the 13th Amendment, when they show up at Congress, the Republicans say, "Whoa, the 13th Amendment is not the peace treaty ending the war. We need some additional guarantees." So, that's where we get the 14th Amendment. And you have exactly the same question arising. How many states do you need to ratify the 14th Amendment? So all of that happens on December 4th, 1865. Two days after that actually is when we get to three quarters of the full 36 states in the Union if that is going to be the relevant denominator. So in December, 1865, all in the spring of 1866, there is a big question about how many states you need under Article 5. What is the denominator? And people say, "Hey, there's 36 stars on the flag. There should be 36 states that you need to ratify under Article 5. You have a similar question about Article 1. These representatives are not admitted to Congress. So people say, "President Johnson has recognized these governments as legitimate governments after the war. These are governments that should be allowed to send people to Congress, conduct elections for the house and appoint people for the Senate." But the Republicans in charge of Congress say, "No, this is not over until we say it's over." So broadly speaking, one theory of the legitimacy of the 13th and 14th Amendments is the loyal denominator theory. A second theory is that it was okay for Congress to condition representation on ratification of the 13th and 14th Amendments. So in 1865, President Johnson says to the South, "Look, you have no chance of getting rights under the federal Constitution if you do not ratify the 13th Amendment." Those ratifications, there's no question about it, were coerced by President Johnson telling them to ratify. He virtually issued them an order to ratify. Similarly, in the 14th Amendment case, Congress tells the South in March, 1867, "You are only allowed to come back into representation in Congress if you ratify the 14th Amendment." Congress proposes the 14th Amendment in the spring and early summer of 1866. It goes to the South. In February, 1867, we get to three quarters of the loyal states. A few weeks after that, in March, 1867, we get the Reconstruction Acts, which tell the South, "You have to allow Black voting, you have to allow voting by the African American population, and you are not going to get represented in Congress until you ratify the 14th Amendment." Tennessee was the only Southern state to take them up on that offer. They actually accepted the implicit offer in July, 1866. So Congress proposes the 14th Amendment in June, 1866. Tennessee right away in July, 1866 says, "Oh, we'll ratify the 14th Amendment." Just before the end of that session of the 39th Congress they say, "Welcome Tennessee. You can join us for the last couple of days of this session. You have ratified the 14th Amendment. It's not the law yet. We don't have three quarters of whatever the denominator is, but you are now part of the Union in full capacity. You have the right to exercise your Article 1 powers, you're going to have the right to exercise your Article 2 powers, and you have the right to exercise your Article 5 powers to ratify the amendment." After 1867, after Congress tells the South, "You've got to ratify this amendment in order to get into Congress," basically the Southern states do. Most of the White population says, "We're not even going to participate in these Southern reconstruction governments." The African Americans are allowed to vote and they produce new governments in early 1868, almost all of which ratify the 14th Amendment. And then in July, 1868, Nebraska has joined the Union in March, 1867 by the way, so [00:44:00] even assuming we have a full denominator of 37 states, we have gotten to three quarters of that by July, 1868. The second theory of the legitimacy of the 14th Amendment is that that coercion was okay. It's okay to have federal pressure placed on states even when they're doing something as solemn and as important as ratifying a Constitutional amendment under Article 5. Okay. That's the second theory. The third theory of legitimacy is essentially that things that happened at the federal realm later on legitimize the process of amendment. So Bruce Ackerman, for instance, has a complicated theory according to which the machinations at the impeachment trial of Andrew Johnson in the spring of 1868 and his acquiescence in the 14th Amendment in the summer of 1868, that's what makes the 14th Amendment legitimate. Some people point to the 1872 democratic platform. In 1868, and 1869, 1870, 1871, early 1872, lots of Democrats say, "Well, 14th Amendment? That's not part of the Constitution." You can actually find copies of the Constitution in treatises that'll have an asterisk next to the 14th Amendment saying, "Well, there's this thing that lots of Northerners think is part of the Constitution, but it's not part of the Constitution." In 1872 though, the National Democratic Campaign Platform specifically says, "We accept the legitimacy of the 14th Amendment and we are not going to agitate about that anymore." So some people say, "Oh, well, that's the point when it actually became part of the Constitution, when we had enough of a consensus on those principles that we could say that's part of what we're swearing in oath to support when we swear to support this Constitution." Some people look even further down the road. They say it's only after decisions like Brown versus Board of Education, or even some say Roe v. Wade, only when those kinds of things happen that make the 14th Amendment into a vehicle for what those folks think of as a good Constitution. Only after that, does it become legitimate and part of the Constitution. Thank you for listening to this episode of the No. 86 Lecture series. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, Originalism, the Judiciary and more. Thanks for listening. See you in class!