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4th Amendment: Sections 4 and 5

Two weeks ago in these pages, I looked at the second and third sections of the 14th Amendment. Today I continue with its two final sections, the fourth and the fifth.

Section 4 clarifies which debts the U.S. Federal government will honor as valid.

The first sentence reads: “The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.”

In other words, the federal government will continue to pay interest and principal on those debts that it “incurred” through four years of Civil War to crush the rebel states, including Union veterans’ benefits, namely “pensions and bounties.” Those debts, “shall not be questioned.”

The second sentence reads: “But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave;

“But all such debts, obligations, and claims shall be held illegal and void.”

In other words, the U.S. Federal government or any state government shall not “assume or pay” any of the Confederacy’s debts incurred during the Civil War. Section 4 declares that the rebel states’ debts are forever “illegal and void.”

Also, this section states that the U.S. Federal government will no longer toy with the idea of reimbursing former slaveholders for the loss of their property because of emancipation.

Prior to the war, two ideas were often bandied about as a means to extricate the country from the grip of slavery: the first was to deport all slaves to a colony in west Africa, and the second was for the Federal government to pay slaveholders for their property and set the slaves free.

Lincoln talked often of colonization, but few black people wanted to migrate to Africa. As the bloody war progressed, Lincoln’s thoughts moved from colonization to emancipation.

Also, few people wanted the Federal government to borrow funds to pay slaveholders market value for their slaves. At an average fair market value of $750 per slave, total funds required to recompense all slaveholders would have approached $3 billion.

The U.S. census of 1860 counted a total population of 31,443,321, and of those 3,953,760 were slaves and an additional 488,070 free blacks. So, one in eight residents were slaves.

By Section 4 of the 14th Amendment, all slaveholders’ claims for reimbursement for loss of their property because of emancipation were pitched aside, and declared “illegal and void.”

Section 5 is a single sentence, the same that concludes the 13th and 15th Amendments: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

Section 5 leaves the 14th Amendment open to further laws that Congress would deem necessary to ensure all its sections were enforced.

The House passed the 14th Amendment on May 10, 1866, by a vote of 128 to 37, the Senate passed it on June 8 by a vote of 33 to 11, and the House concurred on June 13.

On June 16, 1866, Secretary of State William Seward submitted the 14th Amendment to the governors of the states for ratification. At first, all former Confederate states rejected it.

A year passed. On June 15, 1867, Nebraska ratified it, becoming the 22nd state to do so, but 28 states were needed for it to become law, the required three-fourth’s.

Nine months passed. Then, on March 16, 1868, Iowa ratified it. That same month, on March 2, 1867, Congress passed a law that required each former Confederate state to ratify the 14th Amendment before “said State shall be declared entitled to representation in Congress.”

Seven Southern states changed their vote from rejection to ratification in April, June, and July of 1868: Arkansas, Florida, North Carolina, Louisiana, South Carolina, Alabama, and Georgia.

On July 28, 1868, Secretary Seward certified the adoption of the 14th Amendment, twenty-five months after the House and Senate passed it, and it became law then and ever since.

Bill Benson, of Sterling, is a dedicated historian.

4th Amendment: Sections 2 and 3

Last time in these pages I looked at Section 1 of the 14th Amendment. Today I continue.

The last phrase in Section 1 of the 14th Amendment declares that no state can “deny to any person within its jurisdiction the equal protection of the law.” All races are equal under the law.

Section 2  begins: “Representatives shall be apportioned among the several States according to their respective numbers.” By these words the committee eliminated the 3/5’s rule.

Section 2 continues: “But when the right to vote at any election . . . is 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.”

What do these words mean? The authors of Section 2 created a mathematical equation and said that if a state refuses to allow most men of age to vote, then that state will suffer a reduction of its representatives to Congress and also within the Electoral College.

Eric Foner, a Reconstruction historian at Columbia University, says that “Section 2 has never been enforced.” No state has suffered a loss of representatives because of restrictive voting rules.

The states knew that without a federal bureaucracy—officials to count the numbers who were denied the right to vote—the Federal government would find Section 2 difficult to enforce.

Akhil Reed Amar, legal scholar at Yale University, points out that Section 2 does introduce into the Constitution the most important words, “the right to vote.” Citizens have a right to vote.

Section 3 says: “No person shall be a Senator or Representative in Congress, or Elector of President and Vice-President, or hold any office, civil or military, under the United States, who . . . shall have engaged in insurrection or rebellion against the same.”

The intent of Section 3, when drafted in 1866, was to push out of Congress ex-Confederates. Again, this Section proved difficult to enforce at first.

In recent days certain people have dusted off Section 3 and applied it to January 6, 2021.

Per the case “Donald J. Trump v. Norma Anderson” that appeared before the U.S. Supreme Court weeks ago, “A group of Colorado voters wanted Secretary of State Jena Griswold to exclude former President Trump from the Republican primary ballot in the State.”

“The Colorado Supreme Court agreed with that contention.”

On March 4, 2024, the U.S. Supreme Court reversed that decision, by pointing to Section 5, of the 14th Amendment, a single sentence that reads: “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

The justices reasoned that it is Congress’s duty to determine who has participated in a rebellion, not the individual states. They wrote: “Congress’s Section 5 power is critical when it comes to Section 3.” “States have no power under the Constitution to enforce Section 3.”

The justices dug into the history behind Section 3 and pointed out:

“Indeed, during a debate on enforcement legislation less than a year after the 14th Amendment’s ratification, Senator Lyman Trumbull of Illinois noted that ‘notwithstanding [Section 3] . . . hundreds of men [were] holding office’ in violation of its terms.”

The justices said: “The enforcement mechanism that Trumbull championed was later enacted as part of the Enforcement Act of 1870.” Federal prosecutors then had the power to remove ex-Confederates from their respective offices within the Federal government.

Whereas Section 2 was never enforced, Section 3 was, but not until 1870.

Next time in these pages I will look at certain details within Sections 4 and 5.

Bill Benson, of Sterling, is a dedicated historian.

14th Amendment, Section 1

In early 1866, the Joint Committee of Fifteen on Reconstruction in the 39th Congress wrestled with the idea that they must write a 14th Amendment to address certain issues:

Who is a citizen? How does the country’s laws apply to former slaves and slave owners? Will former Confederate officials hold elected office now in the Union? Will former slaveholders receive any compensation for the loss of their property? Who will pay the Confederacy’s debts?

Most importantly, who will rule supreme: state governments or the federal government?

The Joint Committee members wanted an all-encompassing Amendment that addresses each issue because they understood that future Congresses or the courts may disavow the laws that they would write and pass now but an Amendment would make it more or less permanent.

The Joint Committee members argued, debated, negotiated, and compromised, until they submitted to the House and Senate a 14th Amendment that contained five sections.

Section 1 begins: “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.”

Historians have pointed to John Bingham, representative from Ohio and member of the Joint Committee, as primary author of Section 1.

They point out that Bingham’s words in Section 1 unraveled Chief Justice of the Supreme Court Roger Taney’s words when he wrote the Dred Scott decision back in 1857, that black slaves are not citizens, that they never can become citizens, and that they are without any rights.

Taney based his decision on the Constitution, what some call a slave-holding document.

Remember the 3/5’s clause in the Constitution? Southern states received more representation in Congress and in the Electoral College because each slave was counted as 3/5’s of a person. This unfair advantage meant that the Southern states would control the Presidency until Lincoln.

Bingham declared, “All persons born or naturalized in the U.S. are citizens.” That means both black and white, Jew and Gentile, male and female, oldest in the family or youngest. It makes no difference where a person’s parents were born, their religion, or their culture.

Per the 14th Amendment, all are citizens if born here or are naturalized here, Mr. Trump.

Section 1 continues: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

The words, “No state shall make or enforce any law . . . ,” is a radical change to the first words in the first Amendment in the Bill of Rights, “Congress shall make no law . . . ”

James Madison of Virginia, who wrote the Bill of Rights, feared a too powerful Congress, but the Civil War demonstrated that it was the states that can cause immense damage to the Union.

The words, “No state shall make or enforce any law,” indicates that the Federal government now stands supreme. Bingham pitched aside the Southern states’ ongoing cry for “States Rights.”

What are “the privileges or immunities of citizens?” Bingham believed they were the rights listed within the first 10 Amendments, the Bill of Rights.

Section 1 continues: “nor shall any State deprive any person of life, liberty, or property, without due process of law.”

Please note here, Mr. Trump, that Bingham wrote “any person.” He did not write “citizen.” Any person, citizen or foreigner, is entitled to life, liberty, property, and the due process of law.

Akhil Reed Amar, legal scholar at Yale University, pointed out in his book, The Bill of Rights, that Bingham found this idea of extending rights to non-citizens in Exodus 22, in the fourth Commandment. “Remember the Sabbath Day, to keep it holy.” All shall rest on that day.

That includes sons, daughters, manservants, oxen, and “the stranger that is within thy gates.”

Bingham asked, “Are we not committing the terrible enormity of distinguishing here in the laws in respect to life, liberty, and property between the citizen and stranger within your gates?”

Next time in these pages I will continue to unpack ideas out of the 14th Amendment.

Bill Benson, of Sterling, is a dedicated historian.

Black History Month: Reconstruction, 1865-1866

Black History Month: Reconstruction, 1865-1866

In December of 1863, in the midst of the Civil War, President Abraham Lincoln suggested a plan to reinstate the seceded states back into the Union, his “Ten Percent Plan.”

He would permit each Confederate state to form a new state government after ten percent of the voters in a state took loyalty oaths to the Union and recognized the former slaves’ freedom.

Following Lincoln’s assassination on April 9, 1865, his successor, former Vice-President Andrew Johnson, decided to run with Lincoln’s Ten Percent Plan.

Throughout the summer and fall of 1866, the Southern states held special state conventions. At them, they repealed secession, repudiated all Confederate debts, ratified the 13th Amendment that outlawed slavery, and held elections, all in accord with the Ten Percent Plan.

Those elected to various offices in these new state governments included: four former Confederate generals, five colonels, members of the Confederate government’s cabinet, plus Alexander Stephens, the Confederacy’s former Vice-President, who was indicted for treason.

President Johnson felt embarrassed that a series of former Confederates were back in power.

The one constant in these new state governments was their utter contempt for the former slaves, whom they considered “unfit, “inferior,” and “incapable of self-government.”

The new state governments passed a series of Black Codes, designed to keep the former slave poor, stuck at the bottom of the social ladder, with no opportunity for advancement.

Vagrancy laws within the Black Codes forced blacks into contracted labor on a plantation’s fields. Also, the Black Codes denied the former slaves equal protection under the law.

The former slaves convened at their own conventions, called Colored Conventions. At them, delegates discussed “labor, health care, temperance, emigration, voting rights, trial by jury, and education.” Anyone can read the convention’s minutes at the “Colored Conventions Project.”

On December 4, 1865, when the Thirty-Ninth Congress first convened in Washington D.C., Northern Republicans were dismayed to see former Confederates try to walk into the Capitol and assume a seat. They slammed the door in their faces, and Congress’s clerk refused to seat them.

They were called names: “impudent claimants,” “unrepentant,” and “former enemies.”

Thaddeus Stevens, a Republican in the House,” said, “Dead states cannot restore their existence. Congress must create states and declare when they are entitled to be represented.”

Both Presidential and Confederate Reconstruction had ended, but now Congressional Reconstruction was set to begin. A “spirit of revenge” motived these Radical Republicans to act.

On Dec. 13, 1865, Congress formed a Joint Committee of Fifteen on Reconstruction, composed of nine Representatives and six Senators to investigate and determine under what terms the seceded states might regain their status as a state, plus congressional representation.

The committee interviewed “144 witnesses, including 77 Northerners living in the South, 8 Blacks, and 57 Southerners,” and produced “more than 700 pages of testimony, a dreary recital of inhumanity,” of how whites mistreated the former slaves throughout the Southern states.

The committee first recommended further support for the Freedmen’s Bureau, intended to provide relief, food, and schools for the blacks. It also recommended a civil rights bill.

On April 9, 1866, Congress passed the Civil Rights Act of 1866, by a two-thirds vote over President Johnson’s veto. It declared that “all persons born in the United States were citizens,” “without distinction of race or color or previous condition of slavery or involuntary servitude.”

This Act was unique, the first United States federal law to define what persons are citizens.

Black History Month ends this week.

Reconstruction is a messy history. Some consider it a low point in American history. Others, including Eric Foner, historian at Columbia University, label it our nation’s “Second Founding.”

More next time on Reconstruction in these pages, thoughts on the 14th Amendment.

Black History Month: Phillis Wheatley and Billy Lee

Two African-American slaves from the eighteenth century: Phillis Wheatley and William “Billy” Lee. The first a woman, the second a man. The first a poet, the second a valet. The two received their freedom from their respective owners, and they each knew George Washington.

First, Phillis Wheatley was born in Africa in 1753 or 1754, but when a child of 7 or 8, slave traders kidnapped her, sold her into slavery, and transported her to North America aboard the ship “The Phillis.” John and Susanna Wheatley of Boston purchased her in mid-July of 1761.

They gave her the name Phillis and asked their eighteen-year-old daughter Mary to tutor Phillis, who displayed a superb talent for learning English and Greek and Latin, for reading the Bible and classical works, and for composing poems. They encouraged the child’s literary talent.

In 1773, when Phillis turned 20, the Wheatley’s sent her to England, accompanied by their son Nathaniel, and there Phillis found a publisher willing to print her collection of poems that she entitled “Poems on Various Subjects, Religious and Moral.”

It was the first book written by an enslaved Black woman of America.

After Phillis returned to Boston in the fall of 1773, John and Susanna Wheatley set her free.

On Oct. 26, 1775, Phillis wrote a letter to General George Washington and enclosed a poem about him, entitled “His Excellency, General Washington.” Bold and daring she was.

In the cover letter she wrote, “I have taken the freedom to address your Excellency in the enclosed poem, and entreat your acceptance.” Note that her fifth word is “freedom.”

In the poem, she begins, “Celestial choir! enthroned in realms of light, Columbia’s scenes of glorious toils I write.” Then, she ends the poem,

“Proceed, great chief, with virtue on thy side, Thy ev’ry action let the Goddess guide. A crown, a mansion, and a throne that shine, With gold unfading, WASHINGTON! Be thine.”

On Feb. 28, 1776, Washington wrote back to Phillis Wheatley, saying, “I thank you most sincerely for your polite notice of me, in the elegant Lines You enclosed. If you should ever come to Cambridge, I should be happy to see a person so favored by the Muses.”

The historical record is unclear if Washington understood then that Miss Wheatley was a former slave. It is also unclear if Washington ever met the poet in Cambridge, Massachusetts, where he and his army were holding a siege upon Boston that soon drove off the British army.

Phillis Wheatley passed away on December 5, 1784, at the age of 31.

Second, William Lee was George Washington’s slave and valet for two decades, including the years when Washington led the colonial army in a war with Great Britain, 1775-1783. “Billy” Lee rode his horse beside the general, and also set up and took down their tent.

In addition, Billy attended to Washington’s stack of papers, held onto his spyglass, combed his hair, laid out his clothes, mailed his letters, and delivered his messages. He was Washington’s manservant, and the two lived for “more than seven years in close proximity during the war.”

After the war, Billy hoped to continue to serve Washington in New York City, after voters elected Washington as the nation’s first president, but by then Lee’s knees were worn out, and he no longer could act as Washington’s valet. Washington sent him back to Mount Vernon.

There, Billy made shoes “in the small cobbler shop behind the greenhouse.”

George Washington died on December 14, 1799, at Mount Vernon. By his will, he set free one slave of the 317 slaves working then at Mount Vernon, and that was Billy Lee. Washington also stipulated that Billy was to receive “an annual allowance of $30 for the rest of his life, noting,

“This I give him for his faithful services during the Revolutionary War.”

Billy Lee remained at Mount Vernon until he too passed away in 1810.

Two former slaves to reflect upon during Black History Month: Phillis Wheatley and William “Billy” Lee. Also, a former President to consider on President’s Day: George Washington.

National Freedom Day and Black History Month

National Freedom Day and Black History Month

On Feb. 7, 1926, Carter G. Woodson, a professor of history, announced that he would celebrate and highlight for the first time ever a single week devoted to African-American history, and he called it “Negro History Week.”

He selected the second week in February because of its proximity to Abraham Lincoln and Frederick Douglass’s birthdays, Lincoln on Feb. 12, and Douglass on a day in February.

In February 1976, President Gerald Ford expanded that single week to the entire month of February and renamed it “Black History Month,” and he encouraged Americans to recognize, appreciate, and learn more of African-Americans’ participation in America’s history.

At the time of the Civil War in the early 1860’s, there were four million slaves, a massive labor force who worked the Southern states’ cotton fields. They received little pay, scant housing, and negligible food. State laws prevented them from learning to read, write, or vote.

Owned by white slaveholders, they were an oppressed population, forced to work in the cotton fields, unable to quit or leave. The white slave owners whipped their slaves whenever for whatever. The slaves were an abused people, downtrodden, uneducated, and disenfranchised.

For them, life was non-stop work without a shred of hope.

On Sept. 22, 1862, in the middle of a bloody civil war, President Abraham Lincoln announced that on Jan. 1, 1863, 100 days hence, he would free the slaves, but he restricted his Emancipation to those slaves living in ten southern states that had seceded from the Union.

In the Emancipation Proclamation’s second paragraph, Lincoln wrote, “That on the first day of January, in the year of our Lord one thousand eight hundred and sixty-three, all persons held as slaves within any State or designated part of a State, the people whereof shall be in rebellion against the United States, shall be thenceforward, and forever free.”

Lincoln wrote that he expected the slaves to “be free to abstain from all violence, unless in necessary self-defence,” and that they would “labor faithfully for reasonable wages.”

He then invited “such persons of suitable condition to be received into the armed service(s) of the United States,” something Frederick Douglass highly desired and campaigned for often.

One wonders if Lincoln, the President of the United States, had authority to free slaves in another country, the newly-founded Confederate States of America. Lincoln wrote,

“And upon this act, sincerely believed to be an act of justice, warranted by the Constitution, upon military necessity, I invoke the considerate judgment of mankind, and the gracious favor of Almighty God.” For Lincoln, the Proclamation was an “act of justice.”

Congress then took up the issue of outlawing slavery. The Senate passed the 13th Amendment in April 1864, and the House passed it in January of 1865 by a vote of 119 to 56.

On Feb. 1, 1865, Lincoln signed the Joint Resolution of Congress and submitted it to the state legislatures for ratification. The necessary three-fourths of the states ratified it by Dec. 6, 1865, and the 13th Amendment entered into the Constitution.

It consists of a single sentence. “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.”

Feb. 1, the day when Lincoln signed the 13th Amendment, is now known as National Freedom Day. Freedom is a precious commodity. To receive it brings indescribable joy, but to lose it brings sorrow and grief. Without it, life is dull and ugly.

Frederick Douglass said it best prior to Lincoln’s Emancipation Proclamation, “The fate of our country is dependent upon the liberation of the slave.”

History has swept aside the Confederate’s idea that one race is superior to another. The Confederacy’s flag and all it stood for are gone. Black History Month begins Thursday, and National Freedom Day is Thursday.