Wednesday, March 16, 2005
Yes, I am going to keep harping on Thomas Woods' The Guide to Politically Incorrect History. It's important to expose this book for the cheap, shallow piece of work it is. Today, I am going to tackle his characterization of the 14th Amendment as being ratified unconstitutionally. As he says in an essay he wrote:
In 1865 Congress had accepted the Southern states’ ratification of the Thirteenth Amendment, abolishing slavery. But in 1867, even though nothing about those Southern state governments had changed in the interim, they were suddenly declared illegal when they initially dared to reject the Fourteenth Amendment. Simple consistency would require Congress to accept both decisions by the Southern states (that is, the decision to ratify the Thirteenth Amendment and the decision to reject the Fourteenth) or to reject both decisions. But consistency was not a conspicuous virtue of Reconstruction. Only later, under the heel of military occupation, did the Southern states vote to ratify.
Okay, so now you know where Woods is coming from. And it's a very simplified view of the most chaotic period in American history. So let's dig deeper and go back to the 13th Amendment and early Reconstruction.
Towards the end of the Civil War, plans started to form around how to re-admit the Southern states to the Union. President Lincoln took a moderate route as early as December of 1863. He granted a pardon to most southerners who took an oath swearing never to take arms again against the United States. He also said that once 10% of the state’s total vote in the presidential election of 1860 took the oath and organized a government and abolished slavery (13th Amendment), he would grant that government executive recognition. The Congress passed the 13th Amendment on January 31, 1865. The 27th state to ratify the amendment was Georgia, on December 6, 1865. This made it into law.
Now, this is the simplified version. The actual history is much more involved. And it revolved around executive versus congressional recognition. Congress felt that they, and not the Executive, had the authority to re-admit the rebel states. So, in 1864, they passed the Wade-Davis bill, which required 50% of the male population to swear they had never supported the rebellion. Lincoln felt it was too harsh, and pocket vetoed it when Congress went to recess.
So, by war's end, the President and Congress were butting heads. Lincoln had granted executive recognition to Louisiana, Arkansas, Tennessee and Virginia. But Congress would not seat their representatives. So, in essence, one branch of the government felt they were part of the Union, and another did not.
After Lincoln's assassination, President Johnson took over. A poor man from Tennessee, he started by attacking the slaveocracy, disenfranchising military officers and landowners whose assets exceeded $20,000. But he also wanted to ensure the primacy of the Executive Branch.
Between April and December of 1865, Congress was in recess. During this time President Johnson unilaterally appointed provisional governors who oversaw Constitutional Conventions in the southern states. At these conventions, the states ratified the 13th Amendment (minus Mississippi), repudiated their secession and voided Confederate debt. And by the end of 1865, every southern state but Texas had a civilian government. Remember, all this had happened while Congress was not in session.
Then two things happened.
- The Black Codes: Woods argues these were no worse than Northern anti-vagrancy laws. Not to defend the anti-vagrancy laws, but that's a crock. The Black Codes restricted the rights of blacks to own land, vote, work by choice, and most civil liberties. And the civil authority in the Southern states passed these codes almost as soon as they took over.
- Congress came back: When the new session began, the Northern representatives were outraged over these codes. And by the executive recognition of the southern states, which they still did not recognize.
So, as 1866 rolled around, Congress set out to change things. The Joint Committee on Reconstruction said that the Southern states had held invalid elections, and that Congress, not the Executive, held control of Reconstruction. The Radical Republicans cleaned up in the by-elections and then crafted the 14th Amendment.
The 14th Amendment was, overall, a very reasonable amendment. It guaranteed citizenship and equal protection under the laws. It made allowances for decreasing a state's representation if they did not allow blacks to vote. It banned any ex-Confederate official or officer from holding a seat in the Federal Government, but did allow for an override with a 2/3 vote of Congress. And finally, it invalidated the Confederate debt.
Congress passed it easily in 1866 and then put it to the states, including the southern states. And this is where Woods comes in.
He says that seeing as the Southern states ratified the 13th Amendment, and the same governments turned down the 14th, that either Congress had to accept both votes or turn down both votes. And that in not doing so, the 14th Amendment is invalid.
But is that the case? Remember, Congress had still not formally recognized the Southern states as being reconstructed. You can make the argument that it's bizarre that Congress gave them the chance to vote on the Amendment. But, seeing as nothing in the Constitution covered what to do in case of Civil War...they muddled through. And so Congress used the 14th Amendment as the litmus test to see if the Southern states deserved re-admittance (and in doing so sought to re-establish Congress over the Executive) So when they all voted down the 14th Amendment (excepting Tennessee), the Congress saw this as proof of their continued resistance. Also, and this is key, the 14th Amendment was not ratified at this time. It still wasn't law. And the Congress still didn't recognize the legitimacy of the Southern civil authority.
Then, in the summer of 1866, two massive race riots broke out in Memphis and New Orleans. Hundreds of blacks were massacred. And the Congress decided to act.
In 1867, they passed the First Reconstruction Act. It dissolved the civilian governments in the Southern states and formed five military districts. States could be reformed and readmitted provided the new state constitution allowed blacks to vote. Georgia was one of the first states to do so, and was set for readmittance. But then they expelled all the elected blacks from their state legislature. The military government was reinstated and now admittance became contingent on ratification of the 14th Amendment. Left with no choice, the Southern states ratified the 14th Amendment and were admitted back into the United States. Only now was the 14th Amendment part of the Constitution.
So, is Woods right? Not even close. His central argument, that the Southern civil authority had been recognized and therefore both votes had to be honored or shot down, is flawed by the glaring fact that Congress had never recognized Lincoln's plan, let alone Johnson's. They felt they had the controlling authority in that instance. And, seeing as all laws originate out of Congress, it's a valid stance. Even the Constitution supports this stance:
Art. IV. sect. 3. The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States...
Congress saw the Southern states as "territory", as having forfeited their status as States. This stance therefore gave Constitutional support to their belief that they called the shots.
Congress rightly withheld ratification of the 14th Amendment after the Southern states rejected it. They easily could have said it passed based on the support from the other states, since the Southern states held no legal recognition in their eyes. But that would have generated too much controversy, moreso than what had already been generated.
And why would Congress get rid of the 13th Amendment? That was the result they wanted. Even if they didn't recognize the Southern states as reconstructed, there's no way they'd toss the 13th Amendment. That not a flaw in logic, but cold political calculus.
And making ratification a requirement of readmittance was not a flaw. Saying that it was illegal to have a state ratify the 14th Amendment before being readmitted is like saying it was illegal to make Rhode Island ratify the Constitution before it officially joined the United States as a state. Congress had passed the 14th Amendment, and making ratification mandatory was not a flaw. Heavy-handed, yes. But not a flaw.
I guess what is so maddening about Woods is that his whole book rails on about the "tyranny" of the federal government. As I said before, he is a committed neo-secessionist and believes in the primacy of state liberty, fashioning himself as some sort of libertarian.
Yet, he has no problem with tyranny at the state level. The Black Codes? They weren't so bad. Ensuring the rights of blacks to vote? An egregious violation of liberty! The First Amendment? Doesn't apply to the states! Each state can have a primary religion, and woe to those who don't follow it.
What kind of libertarian rails at national limits on freedom but embraces them at the state level? What kind of libertarian defends a society that was propelled and supported by chattel slavery?? The kind that really isn't a libertarian. Instead, he's a member of the League of the South, a "neander-con" who sees anything the federal government does as wrong (unless it supports his views, which is for another post). But worse, he is a professor that writes a "book" with extremely shoddy sourcing. For this entire section, he used only 10 secondary sources and no primary sources. For 1861-1876, only 10 sources. That's pathetic. Worse, he holds a doctorate in history from Columbia, which says more about grade inflation than his writing skills.
Had he limited himself to talking about Congress exceeding their powers in this period, Prof. Woods would have been on more solid ground. Talking about the Tenure of Office Act, intimidating the Supreme Court over ex parte Milligan...Congress was dangerously power-hungry in this period. But they were on solid legal ground in regards to the 13th and 14th Amendment, as well as re-admittance of the Southern states. It's a shame Woods has decided to sacrifice historical accuracy for political expediency.
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