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The Lawfulness of the Reconstruction Amendments

Discussion in 'Civil War History - Secession and Politics' started by jgoodguy, Jan 20, 2017.

  1. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    "To retain respect for sausages and laws, one must not watch them in the making." - Otto von Bismarck

    Constitutional problems under Lincoln
    by Randall, J. G.
    P11

     

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  3. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    The Lawfulness of the Reconstruction Amendments
    Author(s): John Harrison
    Source: The University of Chicago Law Review, Vol.
    Published by: The University of Chicago Law Review P384
    Stable URL: http://www.jstor.org/stable/1600377


    Lincoln made an attempt at reconstruction during late 1863
    But Congress did not go alone.
    Ibid P387
    The 13th amendment gets passed by Congress without Lincoln's Reconstruction governments having representation in Congress.

    Some of those Ratifications are from Lincoln's Reconstruction governments A sticky problem because the Constitution does not address what to do when States not in existence at the time of the vote, ratify an amendment. This happened in modern times when the 27th amendment was submitted by Congress to the states for ratification on September 25, 1789 and finally ratified on May 5, 1992, completing a record-setting ratification period of 202 years, 7 months, and 10 days. Most of the ratifying States were not in existence when Congress passed it.

    Back to 1864.
    Lots of questions to be considered where the plain text of the Constitution is no help.
     
  4. atlantis

    atlantis Sergeant

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    jgoodguy first thanks for a great thread. There is nothing to suggest that the amendment process is meant to be open ended. An amendment is law in normal law making if a bill isn't passed by the time a new legislature is sworn in the process starts over with a new bill being filed.
     
  5. IcarusPhoenix

    IcarusPhoenix Sergeant Major

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    Ok, I'm beginning to see your problems here. First, you keep comparing Constitutional law to the regular legislative process, which it most explicitly is not. This is why the amendment process has a whole seperate article for procedure independent of Articles I and II. The procedure you're citing isn't relevant.

    Second, you are falling into the trap of assuming that if something you want to be there isn't there, then its absence means unconstitutionality without bothering to consider the fact that there is also nothing declaring it so.

    Third, you're looking at things through a lens of modernity, without considering the fact that historically, Congress didn't meet often enough and communications and travel distances between states were far too great for it to be even remotely possible to pass an amendment in a single session.

    Fourth, you clearly need to study Constitutional procedure and the history of the amendment process a bit more carefully, because the exact situation you're claiming to be the case - that the amendment process was never meant to be "open ended" - was so obviously not the case that starting with the eighteenth amendment in 1917, congress started attaching a sunset provision clause in the body of each amendment giving a time limit for ratification. Without it, the process is indeed "open ended".
     
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  6. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    The Lawfulness of the Reconstruction Amendments
    Author(s): John Harrison
    Source: The University of Chicago Law Review, Vol.
    Published by: The University of Chicago Law Review
    Stable URL: http://www.jstor.org/stable/1600377 PP390-391
    Secession and war had left the US in a situation unanticipated by the Founding Fathers. What is the status of seceded conquered States. The Constitution does not say.
    Had the theories of the seceding states had been effective, then the above was the way to go. A complete redo of the Southern States. Luckily the Yankees got into a rhetorical quagmire.

    Representative Samuel Shellabarger devised a way around the difficulties. I believe that the SCOTUS ruling Texas v White follows Samuel Shellabarger's theory.

     
  7. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    The Lawfulness of the Reconstruction Amendments
    Author(s): John Harrison
    Source: The University of Chicago Law Review, Vol.
    Published by: The University of Chicago Law Review
    Stable URL: http://www.jstor.org/stable/1600377 P392​

    Key Sentence "That is one reason to refer to Shellabarger's idea as the theory of destroyed governments; that reminds us that the reason the states no longer had their federal rights was not a crime but a political act of their people. " Secession was a political not a legal act.

    The whole reconstruction theory speech of Shellabarger
     
    Last edited: Jan 28, 2017
  8. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    The Lawfulness of the Reconstruction Amendments
    Author(s): John Harrison
    Source: The University of Chicago Law Review, Vol.
    Published by: The University of Chicago Law Review
    Stable URL: http://www.jstor.org/stable/1600377 P392-393
    Here we have the second theory of reconstruction. The State Governments were not destroyed, just suspended.
    Andrew Johnson: First Annual Message
     
  9. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    The Lawfulness of the Reconstruction Amendments
    Author(s): John Harrison
    Source: The University of Chicago Law Review, Vol.
    Published by: The University of Chicago Law Review
    Stable URL: http://www.jstor.org/stable/1600377 P392-393

    When the war was over, the state of the governments of the former Confederate State was in chaos.
    Functioning Confederate government were dispersed. 7 former CSA states had no government. Johnson had his own plan in competition with Congress.

    Executive Order—To Reestablish the Authority of the United States ...
    May 9, 1865

    Peirpoint was the governor of the rump state of Virginia that seceded from Virginia when Virginia seceded from the Union.

    Pierpont, Francis Harrison (1814–1899) - Encyclopedia Virginia
     
  10. 48th Miss.

    48th Miss. Sergeant

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    Seems to me flaws are fixed by Amendments and Amendments and there meanings should be kept to the language and strick purpose for which they were made and not stretched out of shape as modern language replaced the antiquated language of the 1780s.

    I would agree that the founders have been idolized as they created a wonderful piece of work and a Country with a Government that had never before existed. They are due some honor and a little hero worship in my book along with a list of others that were involved in the process but whose names we seldom hear. The knowledge base these guys had in order to put this together, in my opinion, surpasses that of most any who have come after them. I dare say today, given the same situation and our leaders or even the leaders of the 1860s, we would not be who we are as a country.
     
    Last edited: Jan 30, 2017
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  11. huskerblitz

    huskerblitz 1st Lieutenant Forum Host

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    That's not practical though. The beauty of the Constitution, flaws and all, is it is adaptable without needing to be overly strict in its language. You make them too specific and you'll require more amendments later on. I'd rather keep the number of amendments minimal and allow folks later on to use the existing language to fit modern needs.
     
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  12. 48th Miss.

    48th Miss. Sergeant

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    Seems in that case if prohabition was still legal and since alcohol is considered a drug today then you could use this amendment to curtail nicotin, and about any drug legal or otherwise. Amendments have a purpose when they are proposed and that purpose is what is being ratified, not any conceivable item a future generation wants to ascribe it too. However this is off a bit so we best let jgoodguy take this where he has in mind. Thanks for the exchange.
     
  13. 48th Miss.

    48th Miss. Sergeant

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    The fact that nit pickers dont prosper has little to do with the validity of their argument. Courts are a far cry from orignal intent. The topic however is interesting in a progressive sort of way
     
  14. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    Glad it is amusing.
     
  15. huskerblitz

    huskerblitz 1st Lieutenant Forum Host

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    Well that's the problem with being too specific then. It states particularly "intoxicating liquors". Had they loosened the terminology perhaps they wouldn't have had to create yet another amendment to get rid of that one. Which again is why the wording of the Constitution and the amendments are the way they are.
     
  16. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    That said the topic of this thread is the reconstruction amendments and they are short and to the point.
     
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  17. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    The Lawfulness of the Reconstruction Amendments
    Author(s): John Harrison
    Source: The University of Chicago Law Review, Vol.
    Published by: The University of Chicago Law Review
    Stable URL: http://www.jstor.org/stable/1600377 P392-393​

    At this point Johnson goes off the Constitutional rails by establishing rules for States to join the Union. We will have a dispute between Congress and the Executive on States being recognized by Congress with the former Seceded States in the middle.

    Rebels still stubborn and marginally uncooperative.
    Here we see the origins of the 14th amendment. Repudiating CSA debt was a sticking point.
    Footnote.
     
  18. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    The Lawfulness of the Reconstruction Amendments
    Author(s): John Harrison
    Source: The University of Chicago Law Review, Vol.
    Published by: The University of Chicago Law Review
    Stable URL: http://www.jstor.org/stable/1600377 P397-398​

    The Johnson process is continuing outside of Congressional oversight.

    The 13th gets ratified by the executive action.
    117 1 USC LXII. Alabama and Florida joined South Carolina in expressing a limited view of
    congressional power over the status of the freed people. See McPherson, Reconstruction at 21
    (cited in note 92) (Alabama denied congressional power to legislate on the political status of
    freedmen.); id at 24-25 (Florida did the same.). Secretary Seward had advised the Provisional
    Governor of Florida that the President regarded ratification as indispensable to Florida's resto-
    ration to her true legal relations with the other states. Id at 25 (reproducing correspondence).
    118 Id at 20.
    119 William H. Seward, Certificate of the Anti-Slavery Amendment, known as the 13th
    Amendment, Dec 18, 1865, in McPherson, Reconstruction at 6 (cited in note 92). Although the
    latest state on Seward's list was Georgia, which ratified on December 6, by the date of his proc-
    lamation Oregon had also ratified. California ratified on December 19, Florida did so on De-
    cember 28, Iowa on January 15, 1866, and New Jersey (where the legislature had voted down
    ratification on March 16, 1865) on January 23, 1866. Texas, where reconstruction was an even
    dicier affair than elsewhere, ratified on February 18, 1870. See 1 USC LXII (listing ratifications).

    117 1 USC LXII. Alabama and Florida joined South Carolina in expressing a limited view of
    congressional power over the status of the freed people. See McPherson, Reconstruction at 21
    (cited in note 92) (Alabama denied congressional power to legislate on the political status of
    freedmen.); id at 24-25 (Florida did the same.). Secretary Seward had advised the Provisional
    Governor of Florida that the President regarded ratification as indispensable to Florida's resto-
    ration to her true legal relations with the other states. Id at 25 (reproducing correspondence).
    118 Id at 20.
    119 William H. Seward, Certificate of the Anti-Slavery Amendment, known as the 13th
    Amendment, Dec 18, 1865, in McPherson, Reconstruction at 6 (cited in note 92). Although the
    latest state on Seward's list was Georgia, which ratified on December 6, by the date of his proc-
    lamation Oregon had also ratified. California ratified on December 19, Florida did so on De-
    cember 28, Iowa on January 15, 1866, and New Jersey (where the legislature had voted down
    ratification on March 16, 1865) on January 23, 1866. Texas, where reconstruction was an even
    dicier affair than elsewhere, ratified on February 18, 1870. See 1 USC LXII (listing ratifications).

    117 1 USC LXII. Alabama and Florida joined South Carolina in expressing a limited view of
    congressional power over the status of the freed people. See McPherson, Reconstruction at 21
    (cited in note 92) (Alabama denied congressional power to legislate on the political status of
    freedmen.); id at 24—25 (Florida did the same.). Secretary Seward had advised the Provisional
    Governor of Florida that the President regarded ratification as indispensable to Florida’s resto-
    ration to her true legal relations with the other states. Id at 25 (reproducing correspondence).
    118 Id at 20.
    119 William H. Seward, Certificate of the Anti-Slavery Amendment, known as the 13th
    Amendment, Dec 18, 1865, in McPherson, Reconstruction at 6 (cited in note 92). Although the
    latest state on Seward’s list was Georgia, which ratified on December 6, by the date of his proc-
    lamation Oregon had also ratified. California ratified on December 19, Florida did so on De-
    cember 28, Iowa on January 15, 1866, and New Jersey (where the legislature had voted down
    ratification on March 16, 1865) on January 23, 1866. Texas, where reconstruction was an even
    dicier affair than elsewhere, ratified on February 18, 1870. See 1 USC LXII (listing ratifications).
     
    Last edited: Feb 12, 2017
  19. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    The Lawfulness of the Reconstruction Amendments
    Author(s): John Harrison
    Source: The University of Chicago Law Review, Vol.
    Published by: The University of Chicago Law Review
    Stable URL: http://www.jstor.org/stable/1600377 P398


    A big mess happens. A power fight between the president and congress over the admission

    The notes describe the complexities of what is happening.


     
  20. civilken

    civilken Sergeant Major

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    dear IGOODGUY i enjoyed reading your article but in all honesty I have to say a lot of it was over this guys head but don't stop if I read enough of it something just might stick thank you.
     
  21. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    Thanks. I hope to keep 2 academic article posts going at a time.
     

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