The Purpose and Powers of the Senate, Part XXVII: Strange Times

    The 13^th, 14^th, and 15^th Amendments are really something of a special case. Not only did they fundamentally reconfigure the political culture and the social and economic character of the American republic as a whole, but they were approved and ratified under a set of extremely unusual circumstances. The Civil War (1861-1865) had just concluded, between five hundred thousand and one million Americans had just been killed, the states of the former Confederacy were under military occupation, and millions of enslaved peoples had just been freed under the terms of an executive order issued by President Abraham Lincoln (1809-1865). Unsure that this latter measure would stand up to judicial scrutiny, Lincoln then partnered with the Radical Republicans who controlled both houses of Congress to secure an amendment to the Constitution which would ban slavery unequivocally. Lincoln was killed in April of the same year that the measure was successfully ratified by the states – becoming the 13^th Amendment on December 6^th, 1865 – after which the Republicans then resolved to advance several additional modifications. The 14^th Amendment – which sought to redefine the nature of citizenship and guaranteed equal protection under the law – was thereafter approved by Congress in June of 1866 and ratified by three-fourths of the state legislatures on July 9^th, 1868, while the 15^th Amendment – which sought to guarantee the right to vote regardless of race, color, or having previously been enslaved – was voted out of Congress in February of 1869 and ratified by the three-fourths of the states on February 3^rd, 1870.

    Collectively, these three amendments fundamentally transformed the American republic and set the stage for the next century of American social and political history. But it is because their effects were so all-encompassing that it becomes exceptionally hard to determine whether the states or the people had the greater interest in seeing them passed. By the end of the Civil War, having been confronted with far more bloodshed than many of them ever thought possible, both the inhabitants and the political representatives of the various Northern states had largely come to identify the institution of slavery as both the cause of the conflict and a problem in need of solving. The aforementioned Emancipation Proclamation (1862) had sought to use executive authority to free the enslaved peoples residing in the rebellious Southern states, but this arguably amounted to only a half-measure at best. Not only was such an executive order vulnerable to Supreme Court nullification, but the measure did not affect the status of enslaved peoples in the “loyal” states of Missouri, Kentucky, Maryland, and Delaware. Amending the Constitution would address these issues definitively, though it would also require a good deal of careful horse-trading to see it approved by Congress and then ratified by the states. The declared secession of the slaveholding South ensured that most of the Congressmen and Senators who would otherwise have objected to an anti-slavery amendment simply weren’t represented, but there were still a number of Northern Democrats in each of the chambers who were likely to frustrate any attempt by their Republican opponents to push through such a drastic measure. And even if the draft amendment secured an affirmative vote in Congress, it still wasn’t entirely clear whether ratification might be achieved by securing just the approval of three-quarters of the loyal states or if three-quarters of the total number of states would ultimately be required. But such was the apparent importance of achieving a final end to slavery to the contemporary Republican leadership that they forged ahead undaunted towards that selfsame goal. The cost would be high and the road exceptionally treacherous, but they would see slavery abolished.

    In order to achieve this objective, ultimately, Lincoln and his allies resorted to what might now be considered somewhat less than ethical tactics. Taking advantage of the fact that the session of Congress that was set to meet following his victory in the Election of 1864 would include a number of members who had not been re-elected, the President authorized certain of his agents to make offers to a number of outgoing House Democrats of patronage postings or “campaign contributions” in exchange for their support for the amendment. Men were presented with positions in the Customs Service or federal postmaster positions in the state of their choice, and Secretary of State Seward made a fund available for direct payments to individual Representatives. When these tactics yet failed to move a resolute handful of Democratic Congressmen, Lincoln then approached each of the men in person in an effort to sway them as best he could. In the end, on January 31^st, a two-thirds majority was reached in the House by a margin of 119 to 56. Together with the prior Senate approval – by a vote of 38 to 6 – this sent the anti-slavery amendment to the states. Lincoln signed it – though he was not required to – on February 1^st, 1865, and it was on that same day that the ratification process began.      

    Ratification, of course, was the more troubling proposition in light of the relative positions of the various states. In February of 1865, the American Civil War had not yet concluded. And while it was permissible, under traditional quorum rules, for Congress to continue to legislate so long as at least half of its members were present, the Constitution made no allowance for amendments to be ratified by anything less than three-quarters of the total number of state legislatures. How, then, was this to be accomplished when almost one third of that total number of states – eleven out of thirty-six – were actively in rebellion against the authority of the federal government? In some cases, the answer was relatively simple. Several of the states which had seceded from the union were already under military occupation, the result of which was the formation therein of a series of ad-hoc pro-union governments. But while these provisional legislatures were quick enough to vote in favor of the relevant amendment, those states which remained under the control of the Confederate government presented a somewhat stickier problem. It was the position of the federal government throughout the whole of the Civil War that the Southern states which formed the Confederacy had not actually left the union. Rather, they were simply being governed by those who chose to adhere to the legal fiction that was the Confederate States of America. A state which had yet to be occupied by union troops therefore occupied something of an unusual position. While it remained, legally, very much part of the union, any such state was essentially without a recognized government. The existence of such states – being essentially without a proper legislature – accordingly raised an important question within the context of a constitutional amendment. That is, if Article V declared that a provisional amendment, “Shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states,” what was the remedy if a significant portion of the states were not possessed of valid legislatures? Was the approval of three-fourths of the existing legislatures what was called for by this provision, or the approval of the legislatures of three-fourths of all of the states?

    President Lincoln, for his part, thought these sorts of questions to be a needless distraction. It was in everyone’s interest, he said, for the rebelling states to be restored to their proper place in the union as expeditiously as possible. And once a state was fully restored, it could hold a vote on the relevant amendment. He did not mention, to be sure, what restoration would ultimately look like, or what requirements might have to be met before a state could be readmitted to the federal fold. His fellow Republicans in Congress had certain ideas about just that. But the general thrust of his feeling was generally quite clear. Rather than quibble about the meaning of certain passages of the Constitution, concerned parties should rather direct themselves towards the speedy mending of the North/South breach. Lincoln gave voice to the opinion, it’s worth noting, in a speech he delivered on April 11^th, 1865. Three days later, he was assassinated while attending the theatre in Washington, and the subsequent ascension of his Vice-President, the pro-union Tennessee Democrat Andrew Johnson (1808-1875), to the office of chief executive somewhat complicated matters going forward. Johnson was not trusted by the Republicans who controlled Congress, suspicious as they were that he favored a policy of amnesty for former Confederates, and there subsequently emerged two competing strategies for ratification. The Republicans, as aforementioned, had certain ideas about how and when the rebellious states should have been allowed readmittance to the union. Namely, they favored restoration as being contingent upon acquiescence to certain Republican Party priorities, the anti-slavery amendment being chief among them. Johnson, meanwhile, favored a more conciliatory position. Being a Southerner himself, he was inclined to negotiate with the secessionists; to help them form new governments quickly and to discuss the flexibility with which the ant-slavery amendment might practically be enforced. The results, to say the least, were more than a little chaotic.

    For one thing, President Johnson’s approach constituted circumventing Congress entirely. While the Republicans in the House and the Senate were attempting to use their legislative authority to define how and when former Confederate states could rejoin the union in effort to promote the ratification of both the anti-slavery amendment and its possible successors, Johnson simply reached out to interested parties in the rebellious states for the purpose of forming new post-Confederate governments. In order to play a part in one of these governments, men purportedly had to demonstrate their loyalty to the federal government, though this did not stop many former Confederate officials and officers from successfully making the cut. And in an effort to secure ratification before Congress could begin setting terms, Johnson also made a number of personal assurances which looked set to weaken enforcement measure in question. In response to concerns expressed by the governors of North Carolina and Mississippi, for example – both of whom he had appointed to their posts – the President avowed that the enslaved peoples ultimately freed by the pending amendment would only be required to have some of their civil rights recognized. So long as they would be permitted to, say, testify in a court of law, it would be up to the various state governments to decide whether they could also vote in, or stand for, state or federal elections. These were, to be sure, exceptionally troubling promises for an American President to make, and they most certainly did not align with the intentions of the Republican Senators and Congressmen who were the principal authors of the anti-slavery amendment.

    All that being said, Johnson’s efforts were ultimately successful. Though he promised nervous Southern governors that abolishing slavery would not necessarily amount to fully freeing the region’s enslaved population, and though several states accompanied their instruments of ratification with express declarations that they in no way endorsed federal meddling in the political status of former slaves, the President’s own meddling with Congress’s plan for the defeated South did result in the ratification of the 13^th Amendment. By the end of the first week of December, as 1865 came to a close, the hastily assembled legislatures of North Carolina and Georgia brought the total number of affirmative votes up to the necessary twenty-seven. In his capacity as Secretary of State, William Seward thereafter certified this result while giving no notice whatsoever to the aforementioned qualifications. The amendment then formally became part of the Constitution on December 18^th, 1865. On President Johnson’s part, it’s fair to say, this constituted a great success. Having secured the approval of the anti-slavery amendment with the vital aid of a number of former Confederate states, there now seemed to be no grounds upon which the Republicans who controlled Congress could refuse to readmit these same states to their proper place in the union. And the fact that that he had also incurred the debt of a number of his fellow Southern politicians for having paved the way for the restoration of their states to their proper representation in Congress certainly didn’t hurt. As a result of the next mid-term election, Southern Senators and Congressmen would return to their proper place, and then Johnson might just be able to set about governing the nation properly.

    Successful though this “Presidential Reconstruction” may have been in the short term, however, the Radical Republicans who controlled Congress were far from finished with their reformist agenda. Abolishing slavery was arguably the least of what they hoped to accomplish, and it wasn’t long before they moved forward with the next phase of their effort to fundamentally transform American life. This began, in the immediate, with the passage of the Civil Rights Act of 1866. Intended as a direct challenge to the so-called “Black Codes” in place in the former Confederate states – which laws, though they pre-dated the Civil War in most cases, gain new importance in its aftermath as a means of preventing former slaves from asserting the legal and economic freedoms to which they were due – the Civil Rights Act was effectively a federal guarantee of citizenship regardless of race, color, or previous condition of servitude. Understandably – given the kinds of promises he had made in exchange for Southern ratification of the 13^th Amendment – President Johnson strongly objected to any such guarantees being made at a time when the states of the former Confederacy had yet to be reseated in Congress and chose to exercise his veto power accordingly. But while Congress was able to successfully override this veto by the beginning of April in 1866, there remained some degree of concern within the Republican caucus as to the law’s ultimate viability. Part of what President Johnson had been concerned about was the propriety of Congress unequivocally overruling the laws of states which otherwise had no say in the matter. The Civil Rights Act, to be sure, was a drastic sort of thing, and many Republican members of Congress openly wondered if it might in fact have been too drastic to pass judicial muster. To that end, beginning in that same month of April, plans were set in motion for another amendment to the Constitution.

    To be fair, judicial scrutiny was not all that the Republicans feared. While the ratification of the 13^th Amendment absolutely represented a victory, it was not a victory entirely without a downside. Prior to the outbreak of the Civil War and the departure of the representatives of the Southern states from the House, the South had consistently enjoyed a degree of power and influence within that body proportionally larger than they should have based solely on their citizen populations. The reason for this had to do with an infamous clause found in Article I, Section 2 of the U.S. Constitution. For the purpose of apportioning seats in the House of Representatives, it read, the number of districts to which each state was entitled would be determined,

According to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

“All other persons,” of course, referred to those who were enslaved. If it had been up to the delegates from the states in which slavery was economically significant, to be sure, this clause would not have been included at all. Indeed, they would have loved nothing more than to count every enslaved person they owned for the purpose of increasing their power in Congress while granting these same individuals no political rights whatsoever. The Three-Fifths Compromise was intended to stake out a middle ground. The principal slave-holding states would enjoy more power than they were really entitled to, but it would amount to less power, as a whole, than they might otherwise have preferred. But with the ratification of the 13^th Amendment, this compromise was no longer valid. Formerly enslaved peoples would now be counted as whole numbers for the purpose of apportionment. In the moment, in 1866, this was not the most urgent problem. But if nothing was done in response to this change in time for the census of 1870, the Southern states would finally get what they had wanted as far back as 1787. That is to say, their representation in Congress would increase dramatically while the people they had to thank for it would continue to be denied their rights.

    In addition to their stated moral objective of ensuring that formerly enslaved peoples would be able to take their rightful place as American citizens, therefore, the Republicans who controlled Congress in 1866 also had a more grounded reason for supporting a citizenship amendment to the United States Constitution. Namely, self-preservation. Having just given Southern Democrats a tremendous gift in the form of enlarged delegations in the House, they sought to counter the resulting advantage by ensuring that formerly enslaved peoples would be able to vote and to stand for office however they themselves saw fit. In terms of execution, however, this was easier said than done. There still remained a far from insignificant number of Northern Democrats in Congress who were not inclined to allow the federal government to effectively start overwriting state laws. And the representatives of states like Kentucky, Maryland, Missouri, and Delaware were likewise unlikely to countenance the crafting of any amendments intended to fundamentally re-articulate the legal and political status of their own sizeable populations of free Blacks and formerly enslaves peoples. The result, in the end, was a kind of piecemeal approach. Rather than try to pack all of their priorities into a single amendment, the Republicans instead resolved to separate their desired objective into two distinct proposals. In the first place – doubtless as a measure of its relative importance – they settled on an amendment which would merely ensure that 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.” Subject to additions, alterations, and more than a little negotiation, the resulting draft amendment was accordingly approved by the Senate (33-11) on June 8^th and the House (138-36) on June 13^th and then submitted to the states for ratification.

    The states of the former Confederacy – surprising no one whatsoever – categorically refused to even contemplate such an abrogation of their authority over the rights and privileges of their inhabitants. Tennessee was the lone exception, voting to ratify the draft amendment on July 18^th, 1866. But in every other instance, the South formed an impenetrable wall. Congressional Republicans chose to respond to this intransigence with perhaps their most radical initiative yet. Twenty-eight states were required to ratify the amendment before it could become a valid part of the Constitution. When it became clear, in the early spring of 1867, that the former slave states were not going to budge, the Republican-controlled Congress passed the so-called “Reconstruction Acts.” Their effects were essentially twofold. First, notwithstanding the fact that President Johnson had spent the better part of the previous year personally helping the states of the former Confederacy construct post-war governments, the Reconstruction Acts created a series of federal military districts, each led by a general officer of the victorious Union Army. Administered as part of the War Department, these districts would essentially serve as regional intermediaries between the federal government and the state governments. The commanding generals were to be empowered to enforce such laws as were passed by Congress and would enjoy free reign in dismissing any governments or officeholders who willfully engaged in disobedience to, or obstruction of, the same. In addition, the Acts also made a point of decreeing, in no uncertain terms, that any state within the boundaries of the military districts wishing to return to civilian rule and retake its place in the House and the Senate would be required to ratify the aforementioned citizenship amendment and form yet another new government in keeping with the priorities and requirements of Congress.

    While these policies, in many ways, amounted to little more than extortion, they were neither unconstitutional, nor illegal, nor altogether unsuccessful. As these aforementioned acts began to be enacted over the course of 1867 and into 1868, the formerly recalcitrant Southern states began to slowly come around. Arkansas was the first to do so, finally voting for ratification on April 6^th, 1868. Florida followed soon after on June 9^th. Then came North Carolina on July 4^th, Louisiana and South Carolina on July 9^th, Alabama on July 13^th, and Georgia on July 21^st. The Peach State brought the final count up to a more than adequate thirty, after which – on July 28^th – Secretary Seward made the official declaration that the 14^th Amendment was now a part of the Constitution. Several Southern states, it is true, yet remained outside the federal fold. Virginia, Mississippi, and Texas had notably declined to ratify the amendment, and in the case of the latter two would continue to hold out into 1870. But for the time being, in light of what the Radical Republicans had aimed to accomplish, the whole project constituted an undeniable success. The states of the former Confederacy may have been in line, not only to regain their seats in Congress but to do so in greater numbers than before, but at the very least their formerly enslaved populations could no longer be denied their basic rights. All that remained, as the Republicans in Congress had intended, was one final initiative to conclusively balance the scales of political power in the South. By way of another amendment, the Southern freeman would get his vote.

    Partly, this conviction was the product of the strategy discussed above. Unable to secure the support of the requisite number of Democratic Senators and Congressmen for a single amendment encapsulating all of their policy priorities, the Radical Republican leadership had consented to separate their final objective into two separate initiatives. Having secured the ratification of the 14^th Amendment, therefore, the time had simply come to pursue the addition of its companion. That being said, there were also certain practical considerations at play which added a sense of urgency to the project in question. For one thing, as aforementioned, the Census of 1870 was soon to take place. Unless those formerly enslaved peoples were fully secured in their political rights at the same time that the states themselves were granted the expanded representation which they were due, it was virtually a certainty that Congress would return to Democratic control. And in the meantime, as the former Confederate states began to retake their place in Congress, the totality of Republican control was already slowly beginning to dwindle. In order to make the most of the advantage which they had enjoyed since the Southern representatives vacated their seats at the beginning of the Civil War in 1861, the Republicans who still controlled Congress were accordingly inclined to make a final, ambitious play. While the 40^th Congress was still in session following the 1868 mid-terms – and knowing full well that March of 1869 would witness the return of the Democrats to some semblance of their former power – Congressional Republicans resolved to push their latest amendment through the House and the Senate in something less than three months.

    To accomplish such a thing was about as challenging as it sounds. Notwithstanding the understandable objections of representatives from states like Missouri, Kentucky, and Maryland – all of which emerged from the Civil War and its aftermath socially and culturally battered and with large populations of formerly enslaved peoples – different factions within the Republican Party itself harbored clashing priorities when it came to whom they felt ought to be able to vote in, or stand for, state and federal elections. Northern states were often bastions of Nativism in which the notion of allowing the foreign-born to vote – even if they’d become citizens – was quite simply a non-starter. In the West, this same attitude prevailed when it came specifically to immigrants from China, many of whom had found work on the railroads that were then under widespread construction. And in all quarters of the Republican Party, there seemed to be agreement as to importance of continuing to disqualify those who had directly supported the Confederacy. Bearing all of these objections in mind, any amendment which conclusively enfranchised every citizen of the country simply wouldn’t do. In consequence of this – and to the shame of those Republicans who valued principle over pragmatism – the text of the amendment, as it was eventually hashed out, did as little as possible to take account of potential loopholes. “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude [,]” was all that it said, along with a brief provision permitting Congress to enforce the same terms. Room was thus left open for both literacy tests and poll taxes, both of which would be used thereafter to great effect to deny suffrage to various communities of American citizens. But this, as many contemporary Republicans doubtless told themselves, was simply the price of doing business. Pursuant to this compromise, the House voted on February 25^th, 1869 to approve the proposed amendment by a margin of 144-44. The Senate followed suit the next day by a tally of 39-13. Thereafter, as before, the ratification process began.

    Events progressed thereafter in a mostly predictable fashion. In most Northern states and in the reconstructed Southern states – the latter of which had been readmitted to Congress under the close direction of the same – the process proceeded apace. President Ulysses S. Grant (1822-1885) gave the effort his endorsement and personally sought the cooperation of certain governors and legislators. By the summer of 1869, as the process began to slacken, Congress once more stepped in and put its authority to use. In this case, with the passage of another Reconstruction Act, the Radical Republican majority once again mandated that those remaining Southern states which had yet to retake their place in Congress would be required to ratify the new amendment before they could do so. Unsurprisingly, this prompted Virginia, Mississippi, Texas, and Georgia to each supply their ratification between October of 1869 and February of 1870. On March 30^th of the latter year, Secretary of State Hamilton Fish (1808-1893) was then able to certify that the 15^th Amendment had become a part of the Constitution. The next several years accordingly witnessed a fundamental shift in the nation’s social and political status quo. Republicans having successfully taken control of the governorships and legislatures of every Southern state besides Virginia, the way was now open for Black voters and Black candidates to exercise their constitutional rights and take their place in the electoral system. Black men were accordingly elected to local, state, and federal offices in numbers completely unheard of before that point in American history. As a percentage of the size of the Black communities in the various states, the number of those elected remained far below what it should have been, of course, and political violence and fraud became increasingly common as the 1870s wore on and former Confederates began to assert themselves as the dominant political force in the region. But for a time, and thanks in no small part to the ongoing presence of US military personnel, Black suffrage flourished in the former slave states in a way that had previously been impossible. Between 1870 and 1876, over seven hundred Black men were elected to serve in Southern legislatures, fifteen Black men represented Southern states in Congress, and two Black men were chosen by the legislature of Mississippi to represent that jurisdiction in the United States Senate.

    A great deal more would occur over the course of the wanning decades of the 19^th century which might conceivably bear commenting upon concerning the legacy of the relevant amendments. The end of Reconstruction, the rise of Jim Crow, the return to power of the Democratic Party, and the Supreme Court’s validation of poll taxes and literacy tests; all of these things would end up shaping how and where the terms of the 14^th and 15^th amendments would ultimately be applied. But these developments – though important in their own right to understanding the story of American democracy – do not necessarily bear upon the investigation underway herein. The purpose of this present series is to come to a deeper understanding of how and why the United States Senate functions as it currently does. And the purpose of the present tangent off of that investigation is to compare and contrast the character of the various amendments to the Constitution ratified before and after the addition of the seventeenth among their number. In this way, it will be demonstrated that the passage of the 17^th Amendment – which made Senators subject to popular election – altered the probabilities of certain kinds of amendments being either rejected or passed thereafter. Those which were ratified prior to the addition of the 17^th Amendment have generally been either of a mixed character or a legislative character, which is to say that they have enjoyed either a combination of popular and institutional support or primarily institution support. And those which have been ratified since have been mostly popular in nature, owing mainly to the shift in the Senate’s base of power.

    While this distinction has been, and will be, substantially borne out by the facts, it bears repeating the extent to which the 13^th, 14^th, and 15^th amendments defy easy categorization. These reforms did enjoy, it must be said, substantial popular support. Not only did the majority Republicans enjoy the consistent backing of their Northern constituents throughout the period described above, but the formerly enslaves peoples of the Southern states – amounting to many millions in total – were also very much in favor of the initiatives in question. It is also true, however, that while the speed with which these three amendments were drafted, approved, and ratified – from start to finish, a period of less than five years – would seem to indicate a much greater degree than usual of popular and institutional agreement, the specific circumstances of the moment leave ample room for doubt. In 1865, after all, as the text of the 13^th Amendment was being drafted in the House and the Senate, none of the states of the Confederacy were represented in the halls of Congress. This was also substantially the case during the drafting of the 14^th Amendment and was only just the case as the 15^th Amendment was being written. Did these amendments therefore represent the intentions of the majority of the various state governments or were they the products of a wholly unique period of virtual one-party Republican rule? No doubt, the various Senators who were then members of the Republican Party had the backing of their respective legislatures. Popular support, as aforementioned, was widespread in the North for such measures as would either punish the Southern states for having prompted the late war or which would at least take such steps as to prevent a similar conflict in the future. But how much did these factors impact all that the Republicans would ultimately do? Were Republican Senators, in pursing the amendments in question, hewing to the instructions delivered by their legislatures, or were they simply reveling in their unparalleled power and pursuing whatever objectives that they themselves saw fit?

    The aforementioned novelty of the historical circumstances makes these questions very difficult to answer. It would seem fair to say, all things considered, that the 13^th Amendment enjoyed both popular and institutional support. The population of the Northern states, having just suffered an unaccountable tragedy as a result of the desire of their Southern counterparts to protect the institution of slavery, doubtless felt it only proper that this same institution be abolished forthwith. The members of the Northern legislatures very likely felt the same, many of whom had lost friends or family members or risked life and limb themselves. And it is also a documented fact that both the Lincoln Administration and its allies in Congress sought the passage of the 13^th Amendment in large part because they were concerned that the Emancipation Proclamation was unlikely to stand up under the scrutiny of the Supreme Court. But what of the 14^th and the 15^th amendments? While the terms of both of these documents certainly conformed to the stated aspirations of the radical wing of the Republican Party, there was also a degree of political calculation which doubtless helped to carry along those members who were otherwise unconcerned with the furtherance of Black civil rights. Many Republicans, after all, simply wanted to end slavery, and most assuredly had to be talked into guaranteeing formerly enslaved peoples their full rights as American citizens. And what did any of these things matter to the Republicans legislators who controlled the various state assemblies? Or to the inhabitants of the various states in which the Republicans held political power? Many Republicans were diehard abolitionists who believed that racial equality should be the one and only goal of their movement, but just as many were not. If their Senators had refrained from supporting the aforementioned amendments – the substance of which was the enfranchisement of the nation’s Black inhabitants – would these legislators and their constituents have been all that bothered? The tactical considerations discussed above might still have elicited a degree of support for the same, but would it have been enough? The circumstances of the moment, as aforementioned, were so exceedingly unusual that question such as these would seem next to impossible to answer.

    And none of this is to mention the bizarre manner in which the ratification process played out in regard to the 14^th and 15^th amendments. In most instances prior to the adoption of the 17^th Amendment, one would presume to observe a close relationship between how a Senator voted on a given amendment and how the relevant legislature voted during ratification. Having instructed the Senators which it was their duty to appoint to vote a certain way, a state assembly would presumably vote that same way themselves when it came time to ratify the resulting amendment. The means by which the 14^th and 15^th amendments were ratified, however, in large part throw this relationship out the window. Though in both cases the legislatures of certain Southern states were instrumental in securing the ratification of the relevant amendments, none of these same legislatures had any input into the drafting process by way of the Senators that they were otherwise entitled to appoint. The reason for this, obviously, is that the states which went on to form the Confederacy pulled their representatives out of Congress just after hostilities began during the aforementioned Civil War. Notwithstanding the reason, however, the result was a kind of scrambling of the customary dynamic. States with no input into the creation of two extremely consequential amendments were nonetheless required to give their assent to the same or else remain exiled from the halls of federal power indefinitely. Not only must the pressure which this situation exerted upon the relevant states and their inhabitants have been severe in the extreme, but the mere fact of it makes it exceptionally difficult to account for the nature of the support which the states in question ultimately offered.

    Think of it this way. If the states of the Confederacy had been represented in Congress at the time of the drafting of the 13^th, 14^th, and 15^th amendments, it’s safe to say that the legislatures thereof would have given instructions to each of their Senators to oppose all three amendments in no uncertain terms. Being each of them dominated by a class of slave-holding pseudo-aristocrats, it simply wouldn’t have been in the interests of these states to abolish slavery and then enfranchise the resulting freemen. The fact that these same states absented themselves from Congress in 1861 ensured that this exact outcome did not ultimately come to pass, of course, at the same time that it placed them in a very disagreeable position once the Confederacy had definitively collapsed. Unable to provide any input into the drafting of the aforesaid amendments by way of the Senators which they were otherwise entitled to appoint, these same state legislatures were nonetheless expected to ratify the documents in question if they wished to regain their place in the federal union on anything like a reasonable timeline. This was, as mentioned above, tantamount to extortion, and doubtless fundamentally altered the thought-processes of all involved.

    Neither the political class nor the inhabits of the various Southern states surely favored the elimination of slavery followed by the enfranchisement of the local Black population, but what choice did they have under the circumstances? Not only had they just recently been defeated in their attempt to form a breakaway republic dedicated to the perpetuation of the ownership of human beings, but they were now being refused the opportunity to take their constitutionally mandated place within the administration of the federal union. Refusal to cooperate may have satisfied their sense of pride, but the cost was most assuredly tremendous. Consider, by way of example, the fate of those states which refused to ratify the 14^th Amendment and held out on ratifying the 15^th Amendment until a year after its approval by Congress. For the entire period between the middle of 1861 and the beginning of 1870, the states of Texas, Virginia, Mississippi, and Georgia had no representation in Congress whatsoever. That’s almost nine years total during which these four states had no say in the direction of the nation of which they were a part. Bitter though the medicine may have been which they were being directed to swallow, the thought of being thus exiled in perpetuity doubtless overrode the racial animus of the majority of contemporary Southerners.

    This whole period, to be sure, is an exceptionally interesting one in the long, strange history of the American republic. This writer, for one, could not resist talking about for far longer than his readers would doubtless have preferred. But it is also a period from which it is hard to draw conclusion within the context of the present discussion. In the aftermath of a war that kill more than half a million Americans, three amendments were ratified in a period of less than five years. One president was assassinated, another was nearly removed from office, states were refused their place in Congress, and a military occupation was installed in the South. In the midst of all this chaos, it would seem functionally impossible to determine – by way of the previously-established criteria – whether the amendments in question were mainly popular or institutional in their fundamental character. None of them were solely popular; that much would seem fairly clear. But to what extent were they institutional, the product of party priorities or political calculus? And to what degree did they represent the unrestrained animus of a particular faction? Again, it would seem impossible to say with anything resembling certainty. Let this trio of amendments be laid aside, therefore, in the context of the present discussion. And let it be said about them no more than the following short epitaph, that they were the unprecedented products of an unprecedented era.