ELB Book Corner: Kurt Lash (Post 2 of 3): Documenting the Second Founding: The Road From the Founding to the Thirteenth, Fourteenth and Fifteenth Amendments

I’m delighted to welcome my friend and former colleague Kurt Lash to the ELB Book Corner, for the second of three guest posts on his exceedingly important collection, The Reconstruction Amendments: Essential Documents. Here’s Kurt:

ELB Book Corner

The adoption of the three Reconstruction Amendments, the Thirteenth, Fourteenth and Fifteenth Amendments, constitute such a profound change in the national Constitution that the event is often referred to as the “Second Founding.” Remarkably, despite the obvious legal and historical importance of these three amendments, prior to the publication of The Reconstruction Amendments: Essential Documents, no collection existed which presented the original arguments and debates that accompanied their passage and ratification. In this, the second of three posts, I’ll describe the basic contents of the two volumes. My third and final post will focus on the less-often studied, and remarkably chaotic, history of the framing and ratification of the Fifteenth Amendment.

Volume One covers two subjects: The antebellum constitutional debates over slavery and federalism, and the framing and ratification of the Thirteenth Amendment. Antebellum historical debates produced ideas and commitments that later played critical roles in the debates over the Thirteenth, Fourteenth, and Fifteenth Amendments. Reconstruction-era Americans came of age during an increasingly strident national discussion regarding the nature of American government and the scope of human freedom. Ideas developed in the crucible of antebellum political and legal debate became the building blocks of constitutional reconstruction.

Antebellum constitutional debates had dimensions that were both structural (e.g., the meaning and scope of federalism) and substantive (e.g., slavery as a denial of due process, the nature of the privileges and immunities of national citizenship, etc). Documenting the structural debates includes familiar documents such as Madison’s Virginia Resolutions, Calhoun’s South Carolina Exposition, and Webster’s “The Constitution is Not a Compact.” Less familiar, perhaps, are the documents illustrating the degree to which abolitionists and northern free states embraced Madisonian federalism in their fight against slavery. Wisconsin, for example, relied on Madison’s Virginia Resolutions in its refusal to recognize the validity of the Fugitive Slave Act.

The documents on citizenship and rights include the declaration at Seneca Falls, Williams Yate’s “Rights of Colored Men,” the 1853 Colored National Convention, and the speech of a young Ohioan named John Bingham in opposition to the admission of Oregon—a speech which contains the seeds of what became Bingham’s draft of Section One of the Fourteenth Amendment.

The historical documents on slavery include the early state emancipation laws, the debates in the Philadelphia Convention on the proposed “slavery” provisions, state slave codes, David Walker’s “Appeal,” the abolitionist writings of Garrison, Spooner, and Tiffany, the Supreme Court’s decision in Dred Scott, northern state “Personal Liberty Laws,” and Frederick Douglass’s “The Constitution of the United States: Is It Pro-Slavery or Anti-Slavery?”

The second half of Volume One is devoted to the congressional and public debates accompanying the passage and ratification of the Thirteenth Amendment. Readers may be surprised to learn that our current Thirteenth Amendment is the second of two “thirteenth amendments” sent to the states for ratification. The first, passed and submitted just prior to the Civil War (the “Corwin Amendment”) would have constitutionally protectedslavery—a last ditch effort to stave off secession which was abandoned when war broke out.

The Thirteenth Amendment framing debates contain lengthy exchanges on the nature of the original Constitution, republican government, natural rights, and the proper use of Article V of the Constitution. Some of the more significant sections include the rejection of Charles Sumner’s “equal rights” language and the selection of Thomas Jefferson’s language from the Northwest Ordinance, and the Republican divide over whether ending slavery requires a constitutional amendment or can simply be accomplished by way of broad interpretations of pre-existing powers. Scholars investigating the scope of congressional power to enforce Section Two of the Thirteenth Amendment have a wealth of material to work through here, especially in the ratification debates where the scope of Section Two became a matter of express concern among the southern provisional governments. The newly sworn-in President Andrew Johnson assured these assemblies that Section Two would not authorize federal civil rights legislation—an issue, of course, that became a major subject of debate in 1866, when Congress debated whether it had the power to pass the Civil Rights Act.

Volume Two begins with the opening of the Thirty-Ninth Congress and the debates that led to the framing and ratification of the Fourteenth Amendment. Unlike the secret Philadelphia Constitutional Convention debates of 1787, the debates over the framing of the Thirteenth, Fourteenth and Fifteenth Amendments were all open to the public. Newspapers published transcripts of the speeches and debates on a daily basis and politicians circulated their speeches in pamphlet form as campaign documents. Members of the public could follow the arguments supporting or opposing proposed amendments–arguments that included lengthy debates over the scope of the Thirteenth Amendment, the privileges and immunities of national citizenship, the natural rights of all persons, and the nature and limits of federal power.

Volume Two also presents a number of previously unpublished documents containing the Fourteenth Amendment ratification debates. Long assumed to be either non-existent or no more than fragmentary, Volume Two contains discussions of the proposed amendment in gubernatorial addresses, committee reports, and state legislative debates (including Pennsylvania’s lengthy ratification debates). The ratification documents also include public commentary on the proposed amendment by Frederick Douglass, Wendell Phillips, southern loyalists, Susan B. Anthony, Elizabeth Cady Stanton, S.S. Nicholas, anonymous essayists (the “Madison” essays), northern and southern newspaper editorialists, and much more. One of the most sublime documents in this section is the notice of ratification by the majority black legislative assembly of South Carolina–the state that started the Civil War.

In short, the collection brings together for the first time the voices that demanded constitutional reform and that accomplished constitutional reform. Black and white, men and women, north and south, government officials and private citizens, supporters and opponents, ratifiers and rejectors. Readers can trace the evolution of the proposed constitutional text (an ability the National Constitution Center used in the creation of its new exhibit on the Reconstruction Amendments), as well as the evolution in theories and arguments by both supporters and opponents.

Thus far, I’ve described the collection’s antebellum documents and those relating to the framing and ratification of the Thirteenth and Fourteenth Amendments. In my third and final post, I’ll describe the documents relating to the framing and ratification of the Fifteenth Amendment, the capstone of constitutional reconstruction.

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