Civil War
The United States actually broke apart during the Civil War. President Lincoln pretended to maintain control of the Union for legal purposes, but it wasn’t true. His legal “nicety” of the Emancipation Proclamation, freed slaves in territories the US government didn’t control. The Confederacy was real. For four years, Americans battled each other for control of the destiny of the Nation. Both sides claimed that the “Founding Fathers” were on “their” side. It was a war of rebellion, an Insurrection against the existing government. And despite what the Confederate apologists say today, the South rebelled over the question of enslavement.
When the Confederacy was defeated and their government on the run, the United States tried to determine what our new path would be. Lincoln’s Second Inaugural is often quoted:
“With malice toward none with charity for all with firmness in the right as God gives us to see the right let us strive on to finish the work we are in to bind up the nation’s wounds, to care for him who shall have borne the battle and for his widow and his orphan ~ to do all which may achieve and cherish a just and lasting peace among ourselves and with all nations.”
Reconstruction and Retrenchment
But Lincoln was dead. The Thirteenth Amendment was passed, ending enslavement in the United States. Almost immediately, the defeated Confederate states began the process of re-instituting slavery. The Black Codes were created to form of a new version of that “peculiar institution”. And while the President, Andrew Johnson, stood against the Confederacy, he was sympathetic to the “Southern” way of life.
Congress was faced with the specter of winning the war but losing the peace. In response, John Bingham, a Congressman from Northeast Ohio, authored the 14th Amendment. It was the single most important change in the history of the US Constitution.
The 14th Amendment expanded protection of rights from just the Federal government, to the state governments as well. Here’s how it works. The First Amendment states:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
The Fourteenth
That is written specifically for the Federal Government, the Congress. But the 14th Amendment 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.”
Now the “privileges and immunities” secured for the citizens of the United States were guaranteed by the separate states as well. So, Constitutionally, all states were bound to the same standard guaranteed by the Bill of Rights. And, since the 14th also defines citizenship as “…All persons born or naturalized in the United States…”, it held that the Black Codes, which treated some citizens as “less than” (the freedmen), were also unconstitutional.
Government Under the Constitution
The 14th was intended to apply the Constitution to all governmental authorities, federal, state, and local. It was the “dam” to stop the flood of Southern legislative attacks on the freedmen. But the Supreme Court was slow to accept the original intent of Bingham and the Congress. It took “damn near” a century to be fully enacted, in the Civil Rights Act of 1964 and the New Voting Rights Act of 1965. It was only then that the stage was set for ultimate civil rights.
The 14th was written to secure the victories of the Civil War. And it was about preventing the re-birth of the Southern aristocracy that dominated American politics from the writing of the Constitution to the attack on Fort Sumter. It was put in place to stop retrenchment, and prevent future insurrection.
The Congress wanted to make sure that those who led the Rebellion were kept from regaining power in the government. The third article of the Amendment states:
“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, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”
War Debt
But in case they did manage to return to power and wanted compensation for the loss of “enslaved property” or other war damages – the fourth article added:
“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. 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.”
The public debt of the United States, the Union, would “…not be questioned”. That included the “war debt” But the war debt of the Confederacy, the Secessionist States, or personal debt incurred supporting the rebellion; would not be honored.
Insurrection
Here we are in 2023, a full one-hundred fifty-five years after the passage of the 14th Amendment. Like the United States in the 1860’s, we are still in the throes of Insurrectionist behaviors that hopes overthrow our government. Two years ago, the Confederate battle flag was paraded through the US Capitol for the FIRST time. So perhaps the lessons and the power of the 14th Amendment will have some answers for today’s concerns.
The 14th made it clear, the insurrectionists were NOT welcome back in the government, “…with malice towards none…” be damned. And while they ultimately managed to wend their way back to power in the 1800’s, Americans need not make that same mistake twice. The 14th is still in effect: “No person shall hold any office…who shall have engaged in insurrection or rebellion”.
Faux Crisis
In our hyper-partisan political environment of today, it isn’t far-fetched to think that some in the Congress would use the “debt ceiling” to wreck the economy and win further political office in 2024. Isn’t that just a “sanitized” form of Insurrection?
Perhaps the 14th can be of service there as well. “The validity of the public debt of the United States, authorized by law… shall not be questioned.” Congress can always reduce the debt, simply by spending less money. But to go ahead and authorize spending that creates a debt, and then refuse to pay it (by the legal construct of a “debt ceiling law”) is unconstitutional. Representative Bingham and his colleagues saw that risk in 1867, just as we are facing it now.
They solved the problem, making paying the debt “black letter law” in the Constitution. We should honor that today, and stop this ridiculous “faux” controversy about the debt ceiling. Congress already raised that roof when they authorized the money.
