MOOC | Sections of the Fourteenth Amendment | The Civil War and Reconstruction, 1865-1890 | 3.4.2
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MOOC | Sections of the Fourteenth Amendment | The Civil War and Reconstruction, 1865-1890 | 3.4.2


>>Alright. Let’s move up to [Section] 4. “The validity of the public debt of the United States…shall not be questioned.” That’s very interesting. There’s no jurisprudence about this, but it became an issue last year when Congress, it seemed, was not going to what they call “increase the debt limit,” and the United States was going to default on its public debt if that didn’t happen. And there were some people who said President Obama can use this clause of the 14th Amendment to unilaterally increase the debt limit, because otherwise, the validity of the public debt will be compromised, and the Constitution forbids that. It didn’t come to that. We didn’t reach that crisis. There is no jurisprudence about this. Don’t ask me whether President Obama could constitutionally do that or not, I haven’t the vaguest idea. But the point here was fear that if the Democrats got back into power, they would repudiate some of the debt incurred in fighting the Civil War. So it’s now in the Constitution that you can’t — the validity of the debt cannot be questioned. But also, it goes on to say, the Confederate debt, state or national Confederate debt, cannot be repaid. In other words, if you patriotically, as a Southerner, loaned money to help the Confederate war effort (you bought bonds, either state bonds or Confederate bonds), you’re out. You’ve lost your money. You’re never going to get it back. By the way, this bankrupts immediately all the banks in the South, because the banks in the South had, just as in the North, been forced to buy the debt, buy the bonds of the government. So the entire Southern banking system is bankrupt here, because the gigantic amount of bonds they hold are now declared to be worthless. Every once in a while, I get a phone call from somebody who says, you know, I’m remodeling. I got an old house. I’m remodeling it, and somewhere in an attic or behind a …, I found these Confederate bonds. Are they worth anything? I’m sorry, I say, read the 14th Amendment. They’re not worth anything. However, they’re very colorful. I would put some of them in a frame and put them up on your wall. They’re kind of nice decoration, you know. But don’t think you’re going to get your money back. This will also become an issue in the politics after the war, as we will see. Section 3 is trying to deal with the problem that all these ex-Confederates were being voted back into office, under Andrew Johnson’s plan of Reconstruction. It’s a little convoluted. It doesn’t just say, “No leading Confederate can hold office.” Doesn’t say that. It’s a little more convoluted. It says that nobody can hold an office, federal or state, who, previous to the war, took an oath of allegiance to the United States and then went with the Confederacy. In other words, you could be an ordinary Confederate soldier and this doesn’t apply to you, unless you took an oath of allegiance. Now, who takes oaths of allegiance to the United States? Most people don’t have to do that. It’s office holders. It’s people who held either an office or a military command before the war. So this is attempting to exclude the leadership, the key leaders from before the war who went with the Confederacy, from office. Not voting. This has nothing to do with voting at this point. This is about officeholding. But it’s an attempt to sweep away the ex-Confederate leadership from public office, in the hope that, therefore, people who are more loyal to the Union throughout the war will be elected — although Congress can remove this disability, and people will petition and sometimes they will get this disability removed. Number 2 is an awfully convoluted section, and often misunderstood. In fact, let’s take a second and just read it to yourself. Section 2. This is about representation in Congress, in the House. How they determine how many members of the House each state has, okay? Before the war, it was free population plus three-fifths of the slave population. That’s no longer relevant. So read this for a second and you’ll see how convoluted it is. Anyone want to translate this into English? Take a shot? What is the principle here? Yes?>>Revising the Three-Fifths Compromise. If you’re not allowed to vote, you don’t count… >>Okay, that’s on the right track, definitely. The number of representatives… You left that one key word, though, which we’ll come to in a minute: male citizens. If women are denied the right to vote, doesn’t make any difference, right? If any group of men is denied the right to vote, then the state loses members of Congress in proportion to that group’s proportion in the state population. For example, Mississippi at this time is about 50% black and 50% white. This doesn’t give anyone the right to vote. It leaves the right to vote in the hands of the states, where it always had been. The states set voting qualifications, not the federal government. But if a state decides not to give the vote to any — it doesn’t say anything about black people, but that’s who they’re talking about. If it fails to give the right to vote to any group of men (women, it doesn’t matter, they can exclude women with no penalty), any group of men, then they will lose. So Mississippi, if it doesn’t give black men the right to vote, will lose half of its members of Congress. See? Because blacks are half of the population. Now, this is awfully complex. By the way, it has never been enforced, even in the Jim Crow era when blacks were denied the right to vote all over the South, never did any Southern state lose representation in Congress. It went to the Supreme Court. Supreme Court said, forget it, we’re not interested. Congress, as the Constitution says, is the judge of the qualifications of its own members. Congress wasn’t interested either. So, the NAACP used to take these cases, never got anywhere. But, now, why couldn’t they just have said something simple with this principle, saying, representation is based on the number of voters. That’s, in effect, what they’re doing. Count up the number of voters in each state, and then you apportion the representation on that basis. What’s wrong with that? It’s much simpler than this formula. Well, there were two objections. One, New England had a higher proportion of women in the population, because many men had moved West. And therefore, they would lose, since women weren’t voting, they would lose — just basing representation on voters would penalize New England or exalt the Western states. That’s one. Or even worse, from some people’s point of view, this might lead states to actually enfranchise women, because then they’d double their members of Congress, right? If you just base representation on voters, you give as many people the right to vote as you can, and you have more and more representatives in Congress. So for whatever reason, this is a complex thing, it recognizes the right of the states to regulate voting, but it penalizes them in terms of representation in Congress if they don’t give African Americans the right the vote. This is the way they now get around, or deal with, the abrogation of the Three-Fifths Clause. Now, it introduced this — the word “male” in Section 2 is the first time that a gender distinction is introduced into the language of the Constitution. I will come in a minute to the significance of that. But just go back to the original Constitution. It doesn’t say, men have freedom of speech. It doesn’t say, men have freedom of religion. This is for everybody. Doesn’t say, men have a right to a trial by jury. There is only one, as far as I know, only one gender distinction in the original Constitution, and that is in the description of the qualifications for president. They use the male pronoun. “He” must be a natural-born citizen of the United States and “he” must be 35 years or older. So, obviously, they’re assuming that the president will be a man, and indeed, that’s the way it’s been so far. So who knows? You think if Hillary Clinton were elected next time, somebody could go to court and say, well, she’s not a he. So she’s not qualified under the Constitution. I doubt that would get very far.

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