Context and Constitutional Amendments
Three of ten black delegates to the 1868-69 Constitutional Convention: (from left to right) Benjamin Franklin (B.F.) Williams, Charles W. (C.W.) Bryant, and Stephen (S.) Curtis. Had Texas not been pressured to pass the Civil War amendments during Reconstruction, black political participation of this type would have been unimaginable during this period – as the post-Reconstruction period amply illustrated.
Amending the U.S. Constitution occurs infrequently – only twenty-six times so far in well over two hundred years – and is often the result of extraordinary circumstances or shocks to the socio-political system.
Article V of the Constitution specifies the two-stage process by which amendments are adopted. Essentially it requires (1) agreement by two-thirds of the members of each house of Congress in order to formally propose an amendment and (2) adoption of the proposed amendment by three-fourths of the states in order for it to be officially ratified (accepted) as an addition to the Constitution.
A critical period of extraordinarily prolific amendment activity occurred during a seven-year period from 1864 to 1870. During this period the 13th (abolition of slavery), 14th (due process and other clauses) and 15th amendments (suffrage for African Americans) were proposed and passed by Congress, and then ratified by the states.
Critical to the promulgation and passage of these amendments in the Congress were the efforts of the northern Radical Republicans. They fought to make sure that slavery and discrimination in the Confederate states were not perpetuated in practice despite being officially outlawed, and that public officials in those states were loyal to the Union. However, both Presidents Lincoln and Johnson favored relatively lenient requirements for the readmission of Confederate states to the Union.
The result of these different views of readmission was considerable conflict between the White House and Congress over the requirements that should be imposed on the rebel states before they could be readmitted to the Union. Conflict over readmission focused on four core issues: formal nullification of the Acts of Secession, abolition of slavery, oaths of allegiance to the Union, and repudiation of debts incurred by the Confederacy and its member states.
When it appeared that the governments of the former Confederate states were seeking to reestablish the old order by introducing new restrictions on the former slaves, additional readmission requirements were added. These requirements sought to ensure equality of treatment and due process of the law for all citizens, and to institute black suffrage.
Lincoln's approach, the "10 Percent Plan," promised readmission when 10 percent of the number of a state's citizens eligible to vote in 1860 swore an oath of allegiance to the Union, and the state had abolished slavery. Johnson's approach included additional requirements, including ratification of the 13th Amendment (1865) abolishing slavery, but was still considered overly lenient by many northern Republicans in Congress.
In response to President Johnson's leniency, a number of former Confederate states began passing "Black Codes," laws that restricted the rights and freedoms of the former slaves. Republicans in Congress responded by passing the 14th and 15th Amendments, and implementing other strict policies to counteract efforts to restrict the political rights of newly-freed black citizens.
The 13th Amendment comprises a very short statement that prohibits slavery, except for convicted criminals, and a short statement that allows Congress to pass laws to enforce this prohibition:
Section 1: Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2: Congress shall have power to enforce this article by appropriate legislation.
This amendment was first introduced in the U.S. Senate early in 1864, when the war was still under way. The Senate passed the amendment in April 1864, but the House did not pass it until January 1865. After Lincoln was assassinated in April 1865, his successor Andrew Johnson made ratification of the 13th Amendment a requirement for readmission to the Union. Eighteen states ratified it very shortly after Congress formally approved it. After much delay by the former Confederate states, it was ratified by the minimum of twenty-seven of the thirty-six states on December 6, 1865.
Texas did not formally ratify the 13th Amendment until February 18, 1870. Until then the official position in Texas was that this amendment already had been implicitly adopted. This position was adopted by the Constitutional Convention of 1866. As the Handbook of Texas explains, "[T]he members agreed that the Thirteenth Amendment, by then a part of the Constitution, had abolished slavery and that since they had taken the oath to support that Constitution, they had indirectly abolished slavery. They reasoned, therefore, that a direct and formal ratification of the amendment was not necessary and voted to allow the taking of the constitutional oath to suffice."
Despite reluctantly acceding to the core requirements for readmission to the Union, many of the former Confederate states began passing laws – the so-called "Black Codes" – that disenfranchised the former slaves economically and politically.
This drove the Republicans who controlled Congress to undertake stronger measures to impose their will on the defeated Southern states. The first of these came in the form of the 14th Amendment, a more detailed set of restrictions on the states than either of the other Civil War amendments. Its main points are summarized below:
Section 1: No state may abridge the privileges and immunities of any of its citizens, or deny them due process of law or equal protection of the laws.
Section 2: When any state denies the right to vote at any election to any of its male citizens of voting age, its representation in elections for national offices will be reduced in the same proportion. (Basically, if a state excludes African Americans, then it will be given proportionally fewer seats in the U.S. House of Representatives and fewer votes in the presidential electoral college.)
Section 3: No person who has engaged in or supported insurrection or rebellion against the United States may hold public office.
Section 4: All debts incurred in aid of insurrection or rebellion against the United States and all compensation claims made for emancipation of any slave will be held as illegal and void.
Congress proposed the 14th Amendment on June 13, 1866. More than two years later on July 28, 1868 the U.S. Secretary of State certified that it had been ratified by twenty-eight of the thirty-seven states.
In the intervening time, the Congressional elections of 1866 added to the strength of the Republicans, giving them the two-thirds majority in both houses of Congress needed to override any presidential veto. The Republicans began the new session in March 1867 by passing additional reconstruction laws (over President Johnson's veto), inaugurating a new period of much firmer treatment of the South known as the Radical Reconstruction. Congress divided the South into military districts and required the states to adopt new constitutions, provide for black suffrage, and ratify the (still un-ratified) 14th Amendment.
Texas had rejected the 14th Amendment on October 27, 1866, but later ratified it – along with the 13th and 15th Amendments – on February 18, 1870 to satisfy the requirements to rejoin the Union.
The 15th Amendment to the U.S. Constitution was aimed directly at curtailing attempts by the former Confederate states to exclude former slaves from voting and at the persistent violence over their political participation. It contains two short sections that prohibit the denial of the right to vote and allow Congress to enforce this prohibition.
Section 1: 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.
Section 2: The Congress shall have power to enforce this article by appropriate legislation.
The 15th Amendment was passed by Congress and submitted to the states for ratification on February 26, 1869 amid recurring bouts of violence against African Americans, particularly at polling locations.
Despite these incidents, the South was under much tighter Union control than earlier under the softer reconstruction in the immediate post-war period, and the ratification by the minimum three-fourths of the states was completed within a year. On March 30, 1870, the 15th Amendment was declared to have been ratified by the legislatures of twenty-nine of the thirty-seven existing states.
Texas voters approved a revised state constitution, as required under the Radical Reconstruction, and elected a state government in November 1869. The new Legislature convened and ratified the 13th, 14th and 15th Amendments to the U.S. Constitution, the final requirements for readmission to the Union. President Grant signed the act to readmit Texas to Congressional representation on March 30, 1870.
Texas State Library and Archives Commission, "Forever Free: Nineteenth Century African-American Legislators and Constitutional Convention Delegates of Texas" http://www.tsl.state.tx.us/exhibits/forever/index.html (accessed June 2, 2005).