The Fourteenth Amendment as an Act of War
Articles,  Blog

The Fourteenth Amendment as an Act of War


Thank you all for coming today. This is a grand audience, given
that the Secretary of the Navy is a competition, and so we’re
very pleased that all of you decided to come. This is our annual
Constitution Day talk. This year not on
Constitution Day, and Vlad Perju and I, for
the last couple of years, have collaborated on coming
up with a speaker who we think would be interesting
and fulfill the federal mandate that we do something
for Constitution Day from a perspective
that might not be what everybody would think
you should do on Constitutional Day. So once again, from
that perspective, today, we are delighted to have
a very good friend of mine, Professor Michael
Vorenberg, up from Brown. When Mike and I were
talking about him coming up, I said, well, I
really want someone who can talk about the
fact that it’s also the 150th anniversary
of the 1866 Civil Rights Act and the 14th Amendment. And so we ended up with this
exceptionally long title in advance in order to
basically commemorate all of these very important events. Michael and I have known each
other a very, very long time now, and I’m still
looking forward to a book that he promised me he would
eventually write on George Washington and Abraham Lincoln. This was out of a
discussion we had about how the only
books that sell are people who are
on American money. And so I thought if you did
one of two important people on American money, you could
actually make a lot of money. And so both Michael
and I are constantly trying to sell out
and neither of us– the fact that we
still have day jobs tells you we haven’t been
very successful at that. Michael got his undergraduate
and graduate degree in history from Harvard. That’s where I met him, and
he won the best dissertation prize in history
that year and has continued to write extraordinary
work in the two decades since then. He is most famous currently for
his 2001 book Final Freedom– The Civil War, the
Abolition of Slavery, and the 13th Amendment.” When that came out, it
was an extraordinary book, the first book to
really chart the history of the 13th Amendment and of
Abraham Lincoln’s involvement in the abolition of slavery. It was a finalist for the
Lincoln prize that year. It has become more
famous because he is the most important uncredited
historian ever with respect to a major motion picture. The book basically was used
by the Steven Spielberg people for what became Lincoln,
although Doris Kearns Goodwin was given, I
think, technical credit. Such is life, and Mike
is a lovely person and doesn’t complain. I, personally, would
complain vociferously if that had happened to me,
but Mike is much more generous. He’s also been a member of Brown
University’s steering committee on slavery and
justice, and I think one of the things
that I’ve loved about Mike’s work
over the years has been he is an exceptionally
well-grounded historian who cares a lot about
the history but who’s also been very interested in
its relevance to the present and been very much
part, very much involved in Brown University’s efforts. So with no further ado,
my good friend, Mike. Thank you. [APPLAUSE] Thank you, Mary,
and thank you all for coming on kind of a warm
and somewhat subdued place. I’ll start yelling as I see
the heads start nodding off. I forgot about the whole idea
that this was a money issue, the presidents and money. Hamilton might have been good. We can get ahead of
the curve on that. So I am here because
it’s Constitution Day and, as Mary mentioned, it was
an opportunity not only to talk about the Constitution,
but more specifically, the 14th Amendment
and the measure that led to the 14th Amendment,
which was the Civil Rights Act of 1866. The 14th Amendment, I
guess there probably are some lawyers in the room,
so they can comment on this, but it’s arguably the most
important amendment of the US Constitution. I suppose some people
say what about the first? But when it comes to simply
how judicial opinions are given at the federal level, the
14th is almost always there, and it’s the central
thing that one has to engage with in courses
on constitutional law. So it’s a big deal, and it’s
a big deal for other reasons, too, that I’ll be talking
about that are probably familiar to some of you. The 14th Amendment was
passed by Congress in 1866, and it was passed just a couple
months after the Civil Rights Act of 1866 was passed. That means that we are
now at the beginning of the 150th anniversary
of the 14th Amendment. I said at the beginning, because
it wasn’t ratified until 1868. So we’ve now got two
years of anniversarizing to do for the 14th Amendment. And I suspect you’ll be
hearing more than you want to hear about
the 14th Amendment, as if you haven’t heard
enough, especially if you are in a law school So when we talk about the
Civil Rights Act of 1866, it’s an act that I’m going to
give you quite a bit of detail about momentarily,
but it’s the act that sets up the 14th Amendment,
because it passes Congress. The President, Andrew
Johnson, vetoes it. Congress passes
it over his veto, and then as the standard
narrative goes, in order to shield it even more
from a presidential veto or unenforcement or from the
possibility of the Supreme Court someday ruling
it unconstitutional, they frame very similar language
in a constitutional amendment. That becomes the 14th Amendment. So the sequence here is
very important in how we tell the story of how we
get to the 14th Amendment. And the sequence
is fundamentally a post-war sequence. It is a sequence that
begins after we assume the American Civil War is over. And that’s what I want
to engage with today, and that’s the reason
for this talk, that is, the 14th Amendment
as an act of war. Because in fact, it was not
passed during peacetime. It was passed during wartime,
and that’s a very hard thing to get one’s mind around,
but it’s legally true. It’s existentially
true, and therefore, I need to spend some time
explaining why that is. So and let me back
up just a little bit. The book I’m working on now
is sort of a side project. I’ve been working on a
book about citizenship and the Civil War
for a long time and that necessarily
involves the 14th Amendment because the 14th Amendment
has, in its first sentence, this clause about
citizenship and birth, which we’re hearing a lot about
these days around immigration and so forth. But I decided to
do a side project, for reasons I won’t get into now
about, when is it that we can say that the Civil War ended? And this isn’t a cultural
product on people today who still say the
south will rise again or that the Civil
War is continuing, although, that’s
part of the end, but it really is a book
about the Civil War itself, and how we can say it’s over. The war, we imagine
to be over, generally, if you take history as
a grade school student, we have a magical moment
at Appomattox Courthouse in Virginia on April 9, 1865,
where Lee surrenders to Grant, and the war is over. So in no possible way is
that war over on that day. It’s not over, because Grant
and Lee meet the next day, and they agree that
the war is not over. Grant asks Lee to
ask Jefferson Davis, the President of
the Confederacy, to surrender all forces. And Lee says I won’t. I can’t, and Davis isn’t
going to surrender, anyway. So there are two armies that
are larger than Lee’s that are still in the field for years. The legal end of the Civil War,
the day that the Civil War is over for purposes of law, when
figuring things like pensions and so forth is August 20, 1866,
16 months after Appomattox. Why that date? I can explain, but the
darkness and this heat will put you to sleep, for sure. I will get there eventually. But what that means is that
legally, the Civil Rights Act and the measure
for the 14th Amendment when it passes Congress, are
accomplished at a time of war. That’s not just a sort of legal
nicety or interesting bit. It’s not only a
time of war, it’s a time when there
were tens of thousands of United States troops, Army
men, in the American south and west as occupiers. There under the auspices that
this was still a time of war. So I’m going to lay out
for you a little bit how you can see that, that is, the
war quality of the Civil Rights Act of 1866. Then, I’m going to talk a little
bit about the implications for that for its time. How that war quality
of the Civil Rights Act affected the time of
reconstruction, 1866, ’67, and then say just a little
bit at the end about what this all means for today, as we
think about the Civil Rights Act and the 14th Amendment. The 14th Amendment,
of course, is still with us but so is most
of the Civil Rights Act, although the
post-Civil War Supreme Court ruled
unconstitutional some of the crucial Civil Rights
Act, especially the one in 1875. The crucial pieces of the
1866 act slipped through, and I’ll say more
about what these are, and they are still
on the books today. And they are the residue,
among other things, of the American Civil War, not
only peacetime reconstruction. So I’ll speak for about another
30 minutes or 35 minutes and then I’ll happily
take questions to try to clarify
what I’ve been saying. I’m on the fence about
whether to give the handout. I am going to do it. The reason I’m on the fence
is because it’s like a book, and I’m worried that you’ll
read the whole thing, and then, I’m sure
you’ll fall asleep, because this is the text of most
but not all of the Civil Rights Act of 1866. It is the text of all
of the 14th Amendment, and then on the flip
side is a chronology. And if you see that
I start to go quickly through a chronology,
you can sort of follow along with
this chronology to see what I’m saying. So the 14th Amendment
has crucial language in its first clause. It has five clauses,
but the first one is the one that’s
most often used. That isn’t to do any
disservice to the other ones. First sentence has to do
with birthright citizenship. This was making sure that
the former slaves would now be citizens. And then, of course,
it has famous phrases around equal protection for
laws, due process, privileges, and immunities, famously for
the constitutional theorists in the room. So that comes after
the 13th Amendment. As Mary mentioned, I wrote a
book about the 13th Amendment. And when the 13th Amendment
is ratified in 1865, they don’t know that there
is a 14th Amendment coming. That is, they assume that
this is the amendment and all the amendment that’s
needed to deal with the problems that may ensue
from the American Civil War. And that’s important for
all sorts of reasons, because one thing is, when
you look at clause two, where it says “Congress
shall have power to enforce,” this amendment is ratified
in December of 1865. Congress comes into session in
that month, December of 1865, and they say, now is the time
to enforce that 13th Amendment. Again, they’re not thinking
about the 14th Amendment. And so they begin to draft what
will become the Civil Rights Act of 1866, which is there
to enforce abolition, which is there to enforce
emancipation, that is the primary
purpose of the act. The act had special
purpose as well, because during the
summer of 1865, between the passage of the
13th Amendment through Congress and its ratification, all
of the southern states are passing so-called
black codes. And I show you just a few
from Louisiana, from one Louisiana parish in the summer
of ’65, so you can– well, you can’t see, but
these are clearly codes that are meant to preserve
a labor system akin to slavery, and they include
everything from no Negro shall be permitted
to rent or keep a house within said parish. So they have to do
with home ownership. Section four, every
Negro is required to be in the regular service
of some white person. So you have to be able to prove
that you have a job and not just any job but a job being
paid by a white person. Negroes are not allowed
to carry firearms. That’s in there, too. So these black codes
are passing and they show that the 13th
Amendment needs enforcement, and the enforcement
that comes that’s meant to override these black codes
is the Civil Rights Act. And this is the first clause. The full text is on the
handout, and it’s very long. But it’s crucial, because
it’s the first time we then– it’s before the
14th Amendment, it’s the first time we see
birthright citizenship, where it says if you’re
born in this country, you are a citizen or
naturalized, of course. And then it lists what
rights attach to freedom. So this is the enforcement and
they include all the things that those black codes
are trying to deny, living where you want to live,
working where you want to work, et cetera, et cetera. There’s a lot more I could
say about the Civil Rights Act of 1866, and maybe if
you have questions about it, I’m happy to talk about it. I’ll say two things
just to maybe tickle the interest of lawyers
in the room or people who are really serious
constitutionalists and want to know
more about language. First, if you look at
the Civil Rights Act, you’ll see that it’s
enforcing the 13th Amendment, and that what it says is that
all persons, and then goes on to say all these
things, and that they will have full and equal
benefit of all laws. Full and equal benefit,
that’s language that’s not in the 14th Amendment. What does it mean to have
full benefit, not just equal, like equal
protection, but full benefit? That’s a really
interesting phrase. Furthermore, there’s no, what
we call state action clause. So the 14th Amendment says
no state shall, and then it says all the things
that can’t happen. But this is much more
a positive statement of what will come
to all persons. So in this way, it’s much more
opening and much more broad, in terms of giving rights. But even so, it could
have been even broader, because it focuses on
this word, “citizens,” which has become an obsession
in recent history, of course. Are you a citizen, are
you not, and so forth. And an earlier draft of that
measure, when it passes, there’s great excitement. This is the scene
in the galleries. But an earlier draft,
the Senate version, says that there should be “no
discrimination in civil rights or immunities among
the inhabitants.” It doesn’t say citizens. It says inhabitants. The language is changed
as a crucial moment. The word citizen is inserted. Now, it’s true that
that category of citizen is broadened, and that’s
a good thing, absolutely, but by changing
that word, you’re still using a term that
is exclusive, in citizen. And it was done quite
purposely, really to keep out of the category
of citizenship the Chinese. So the Western
lawmakers, in particular, were very worried that if
language like the first type got in, that then the many
residents of California and the Southwest
and some in the East, who were Chinese,
not born in the US but actually born
in China, could make a claim to citizenship. And this was, in large part,
to keep that from happening. And so all of this is happening
in the spring of 1866. Congress passes the Civil Rights
Act of 1866 in the spring. It’s paired with another
piece of legislation, which renews the Freedmen’s Bureau
Act, Freedmen’s Bureau Act, and that means that the
Freedmen’s Bureau will still be active in the south. That is a bureau under
the War Department, and so the War Department will
oversee relations between freed people and white people in the
south, which right away tells you that it’s a time of
war, because Congress is taking something
that was set up during the war, the Freedmen’s
Bureau, and saying it shall continue, and it shall
continue as a War Department agency. It will be staffed
by Army people. It will be staffed by
lawyers who technically have positions in the Army. And the venues in which
these will be held will be official
legal venues, that is, they will be
military commissions or courts in areas
where there are civilian courts operational. So that Freedmen’s Bureau
Act is pretty clearly a wartime act as well. It has a terminus. That is, it has an end date,
and when the Freedmen’s Bureau ends, that’s it. Not so with the
Civil Rights Act. The Civil Rights Act is
forever when it’s passed. And therefore, historians
tend to say, well, the Civil Rights Act is
kind of a peacetime act and the Freedmen’s Bureau
is the wartime act, but that’s just not true. First of all, as I said,
the war is not over. We think of the
war as being over because of the great
surrender, which is now mythologized
in American history, the surrender at Appomattox. And I’m so glad that the student
who I stole this picture from is here. So, thank you, Sam. So it’s still,
Appomattox has the word, you have heard before,
it’s no surprise to you. But it has this notion of
an ending, a clean ending, but it wasn’t, as I said before. And if you then go into
the Civil Rights Act knowing that the war
is still going on, then things begin to make
a certain degree of sense. To return to the
Civil Rights Act now, this is the famous first
clause, and then it has all these other clauses. Now, I’m not going to walk
you through all this language, but I’ll say, instead, that one
of the things about the Civil Rights Act that a
lot of people know is kind of an interesting bit. And it’s a wonderful thing that
the Republican congressman who passed it did, is they
created most of the language by turning the Fugitive Slave
Act of 1850 on its head. So the Fugitive
Slave Act of 1850 was a national
act, a federal act that mandated the
processing of people who were accused of
being fugitive slaves and set up the legal systems
by which these people would be deemed to be slaves or not. The act federalized local legal
officials, police and judges. They federalized
them for the purpose of making them commissioners. And they stacked the deck
in favor of the slave owner to make sure that the
slaves were returned, and they did this to their
masters and not declared free. And they did this in all
sorts of ways, most infamously by giving the commissioner
who ruled in the case $10 if this slave was remanded
back into slavery and $5 if they were set free. So they take the
Civil Rights Act and they take and they go back
to the Fugitive Slave Act, and they do the
exact same thing. And they say we are going to
federalize all local officials for the purpose of
enforcing freedom and that you must
enforce freedom. And so the language
for most of this is taken from the Fugitive Slave
Act of 1850, most but not all. There are a couple clauses– and it happens here, towards
the end in clause four, there’s some talk about
where armed forces were used to enforce civil rights,
but the really important ones are here, in section
eight and nine. These clauses get
not studied at all. So everything I’ve read about
the Civil Rights Act just sort of dismisses eight and nine,
sections eight and nine sort of immediately,
as they don’t know what to do with them. And that strikes
me as interesting, because there they are. What they do, without trying
to get into each word, you can look at
them if you want, but what they
effectively do is this, if the president or the
president’s delegate, which would include the Secretary
of War, the General in Chief or other general, if such
an officer of the Army, because the president’s
Commander in Chief, suspects, either knows or
suspects that this act is being violated, that is, that
there are freed people, whose rights are being
violated or that violence is going to be done to them,
that the military can act and they can send in the troops. But it goes even further,
because in section nine, it says that it will be
lawful for the President, or such person as he
may empower to employ such part of the land or
naval or of the militia, as shall be necessary
to prevent the violation and enforce the due
execution of this act. To prevent the violation,
so it’s not just about waiting until,
for example, there’s been a massacre of African
Americans in a place like New Orleans or Memphis, which
happens in 1866 in both cities. But you can act,
you could argue, you must act proactively. That if your officers, if
your soldiers on the ground know or even suspect that
there is a conspiracy that could lead to a violation of
civil rights and to violence that they are empowered to
act against that conspiracy. There it is in the
1866 Civil Rights Act. That principle would
come into full bloom five years later with
enforcement acts that no longer exist, but even
those enforcement acts didn’t go as far. They didn’t say that the Army
could act proactively or to use the better word, preemptively. Preemptively, and that
word is really crucial, because I began to ask myself,
where did this phrase come from, this wording? Because that’s
what lawmakers do. They just kind of
pick and choose. They took a lot of it from
the Fugitive Slave Act. Where did they get stuff? Where they got it is
kind of interesting. They got it, not from anything
having to do with slavery, but they got it from the
language of international law. And specifically, they got
it from an incident which is very well known to
international lawyers but not necessarily to others
and especially those who work on the law of war. Because where they got it is
from the language that gives us today the Doctrine
of Preemptive War, the very doctrine
that was used in 2001 to effectively, and
then years later, that President Bush used to sign
the Army to act preemptively, right? By the way, this is
also an anniversary. It’s the 15th anniversary
not quite to the day but to the month, of George
Bush signing the Authorization for the Use of Force. That’s something
that was renewed, has been renewed every
single year in September, including by President Obama. He’s yet to do it this
month, which is intriguing, and there’s some question
of whether he will. Although he did sign the
act earlier this month, as Bush did, declaring
a state of emergency. So we’re still in a
state of emergency. I mention this not just
because it’s interesting, but because it’s the
same kind of environment that you have to imagine
there being in 1866. A state of war, a
state of emergency, where a conspiracy can erupt
that will commit violence against freed people, but
worse, will re-enslave them and will set slavery back
on course to where it was, which means we’ll bring
the Civil War back. And so you have to
cut this at the stem, and that’s what this is to do. And so you reach back
into international law. The specific incident
in question– Lyman Trumbull is
the major author. He’s the one responsible
for this clause. He’s a very clever
lawmaker and writer. He’s also the author,
the major author, one of the major ones of the
13th Amendment and the 14th. All of this goes back
to an incident from 1837 that we call the
Caroline Incident. So now, I take us away
from the Civil War, away from slavery,
into Niagara Falls. A small group of British
citizens living in Canada have plotted a rebellion
against the crown, and they’re working on the
Canadian side of the Niagara River. They have help from
the American side. So there are Americans
that are running guns and supplies
across the Niagara to the British people
who are in rebellion. The British authorities catch
wind of this, and the Caroline, which is an American
ship, and it’s anchored on the
American side, the Brits go into, cross the
river, unmoor the ship, set it on fire on the
river and let it go, and it flows over the
falls as people watch. Now, this, of course,
could have been considered an invasion of the United
States by the United Kingdom, but it wasn’t because
the British Minister, and its then agreed to
by others, including Daniel Webster, who’s the
key American figure in this, the Brits make an argument
that when a country knows that an act of war is about
to be committed to them, they shouldn’t have to wait
until that act is done. They can act
preemptively, and that’s what they were doing when
they burned the Caroline. So there’s this back-and-forth
dispute for years, and finally, it’s resolved
in a treaty of 1842, the Webster-Ashburton Treaty. But even before that,
Congress acknowledges this, because Webster
makes Congress acknowledge that the Brits
did something that was legal. Because Webster’s trying to
avoid a war with Britain. And so Congress actually
even passes an act, and this is what it
looks like in 1838. And I won’t get into it, but
the language if I read it, is word-for-word the language
of the Civil Rights Act of 1866. It says if the president or
if his delegates knows that– for the security of its
territory or country, they can send in troops
and act preemptively. And so Trumbull takes
this language from ’38, puts in the Civil Rights Act. And this goes along
with, like I said, the environment of a military
act for the Freedmen’s Bureau. It goes along with
Richard Henry Dana, Jr. and his very famous
speech of the time that he gives in
Boston, in June of 1865. Dana was really famous. He was a dashing young
man, on the left, who wrote this incredible
travelogue, Two Years Before the Mast, that
many of probably have read, and that’s how he made
a name for himself. But then he went to–
finally studied law. He became arguably
the best or one of the best known
international lawyers by the time of the Civil War. And June of 1865, that is
months after Appomattox, he gives an address at
Faneuil Hall, and he says, you say that the war is over– some say that the war is over. The war is not over. A war is over when
it’s purpose is secure. It is a fatal mistake to
hold that this war is over because the fighting has ceased. This war is not over. We are in the attitude and
in the status of war today. One nation, when it
has conquered another, does not give up or retreat. Rather– here comes the phrase– it holds the enemy
in a grasp of war. So this is often called
the Grasp of War Speech. This was Dana’s approach. It was the approach
of the Republicans. Much of the fighting is over,
in terms of formalized armies, but there’s still
fighting going on. There’s guerrilla warfare. There’s fighting in Texas. There’s– I could go on
about the actual fighting. There’s people at
sea who are fighting. But we’re also in
a state of war, and if you hold the enemy
in the grasp of war, then you can pass
legislation against it to make sure that that
enemy is crushed for good, and that it’s not until the
victor has secured whatever it has a right to require. Dana thought it had a right to
require not only civil rights for African Americans,
which he talks about, but voting rights for black men. So all of this is happening
during this period. And like I said, in
terms of what this means, the Civil Rights
Act passes in March. It’s vetoed by Andrew Johnson. Congress, in April,
overrides the veto. And then, over the
summer of 1866, so that is just months
after this is passed, so you have a law. And now, you have all these– well, there’s all
sorts of violence against African Americans
at the local level on a day-to-day
basis, but the things that really catch the
nation’s attention are the so-called riots, but
today we tend to call them, more aptly, massacres. First in Memphis, May 1st to
the 3rd, and each of these has a long story behind it,
which I won’t get into now. Memphis is interesting,
because uncoincidentally, it happens the day after the
one black regiment in Memphis musters out. So the black regiment that’s
occupying Memphis musters out. They’re ordered to take
off their uniforms, and the next day, the white
paramilitary groups attack. It begins at a courthouse
and then spreads, and they focus especially
on the black veterans and their families. New Orleans is a
somewhat different story. It happens– it’s a
one-day event in July. Here, what you see is,
this is all Memphis. New Orleans happens July
30, where, again, we still don’t even know the numbers
of people who are killed, but it could be as many as 100,
but the more likely estimates are more like 60. That’s happening in July. So clearly, now, we say,
the people in government say, look, this is exactly what
something like the Civil Rights Act is for. Obviously, it’s for things like
enforcing contracts, making sure contracts are fair, making
sure housing arrangements are fair, but it is
also about preventing these kinds of things. And so the Republicans
in Congress, with their greatest aid
in the executive branch, and that would be Edwin
Stanton, the Secretary of War, they are dead set on
using the Army to react to but also to keep from happening
things like I just showed you. Now, they have many tools at
their disposal to do this. The Army is still in the south,
and there are general orders that the War Department
has given that allow the Army to be in the south. There are military
courts and commissions in the south that are being
used to try white people who are accused of violence and
other civil rights violations. So the instruments are there. Even without the
Civil Rights Act, you have all these things that
are holdovers from the Civil War that are still in place
and that Stanton and the Army can use. But then, here comes
Andrew Johnson. Now, Johnson’s the Commander
in Chief and step-by-step, Johnson begins to undercut
what the Army can do, and he does this in
a number of ways. First, in April of
1866, he proclaims that the war is over in all
places except for Texas. Why Texas? It’s Texas. I don’t know. I do know, but it’s because
no one could possibly say that the war is over in
Texas, because the depredations there are happening every
day, and it’s a complete mess. But in April, he says
the insurrection is over. And in this way, he
is signaling that it’s time to muster out
the wartime troops and to move the
nation to peace time and that the enforcement that
Stanton and the Republicans want to do is not going
to be being done anymore. We’re slowly going to turn it
over to the southern states. Then, at the end of the
summer, in August 1866, August 20th in fact, he
goes one step further, and says it’s over,
even in Texas. It’s over everywhere. So that’s why August
20, 1866 is used by the War Department,
for example, today as the formal end
date of the Civil War, because the president
proclaimed it. Now, this in itself
is interesting. For some years now, I’ve been
saying that of all the war powers that the
American President has, you could argue that the most
important war power of all is the power to declare
when a war is over. That power is not granted
in the Constitution. Wars are supposed
to end by treaties. It’s very clearly set
up in the Constitution. But in fact, in practice,
in the 20th century, and certainly in the
21st, it is the president to whom we look to declare
when a war is over. And what we’ve seen
over the last 15 years is this kind of bumbling
move after bumbling move of a president trying
to declare the war over, not just Bush’s infamous Mission
Accomplished speech, which was such an example, but Obama
has been guilty of this, too, and it just of course,
doesn’t quite work. But that’s what Andrew
Johnson was trying to do. But he has help. He has helped from the
United States Supreme Court, because the Court for some
time has been wrestling with the issue of is it
constitutional for military courts to exist in places where
there are civil courts, namely the south? As the southern states
are reconstructing and re-establishing their
civil law and their courts, why should military
law still exist here? That’s the argument
made, of course, by prior Confederates,
states’ rightists, and by Andrew Johnson. This case will be resolved in
the Milligan decision of 1866, kind of. This is a terribly
misunderstood decision. The Milligan Decision is
announced in April of 1866 by the Court. What the Court announces
is that the people who’ve been accused and convicted
by military tribunals– commissions, excuse me, are
now going to be set free. That’s all that the
April decision does. And then it says an actual
opinion will be coming later, that’s April ’66. The actual published
opinion doesn’t come till January 1, 1867. Now, if there are constitutional
lawyers in the room, I would like to know the answer
to this, because I’ve never gotten an answer to this. Is there ever another
moment where a decision is announced but
the opinion takes more than six months to follow? This was deliberately
done, I believe, because the Chief Justice
Salmon Chase understood the implications. That if the decision
held weight, that is, if it had the weight of
an official opinion, which it didn’t in April
’66, it was not a written opinion, that it
would undercut reconstruction. So he waits to give the
congressional Republicans, Stanton time to figure
some other way out of how to use the Army to
get reconstruction done. But he could only wait so
long, and on January 1, actually the decision is issued
from the bench in December, and then, it’s published in
the newspapers January 1, 1867. At which point, Stanton
knows he’s in trouble, because these general
orders that he is given and that Johnson has
allowed, that are effectively the same thing as
what we have today when we have a status
of forces agreement with another country to allow,
for example, American troops to be in Afghanistan
or Iraq, where there is a civil
government but there are– it’s exactly the same. That was the status, and what
the Milligan decision says is that is to be no more. If there’s a civil
government, there is to be no military
commissions. And so what happens
is that Stanton’s got to figure a way out. What can he do to keep his army
there to enforce civil rights? And then he goes and he reads
the Civil Rights Act of 1866, and he sees this clause in
it that no one has really talked about, but it’s
the one I mentioned. And he says, wait a second. There’s a clause there that says
the president or his delegates can use the Army proactively. And he writes a memo. By the way, if you haven’t
known this already, you probably figured
this, Stanton and Johnson hate each other, but they’re
stuck with each other. And Johnson, the president,
Stanton the War Secretary, and eventually,
Johnson will fire him, and Johnson will be
impeached for firing him. It’s a complicated story. But before all that,
Stanton’s still there. Stanton writes the memo. He cuts out the clause,
this clause nine, which I showed you before. And he writes a memo
to himself that he’s going to share with
the Cabinet and what it is, is it’s a
resolution that he’s going to have the president
try to sign off on that says because of this
clause, it is ordered that the Commanders of the
several Military Departments are hereby empowered to
employ the forces of the US to prevent the violation and
enforce the sure execution, basically, let the Army stay
and do what it’s been doing. So it’s the way around Milligan. In the end, Johnson
rejects this. Johnson rejects
everything else, but it doesn’t matter, because
a more temporary solution that solves
everything comes out. First, Congress passes
military reconstruction. the Military Reconstruction
Act does all of this that I’ve just mentioned, and
they override Johnson’s veto. Then they’re worried
about, well, is Johnson going to use the Army? They don’t have to worry about
that anymore, they impeach him. They don’t quite convict
him, but he’s off the table at that point. So events take
care of themselves, but everything I’ve just
mentioned is short term. The Military Reconstruction
Act has an ending. But for this moment, this
brief moment of a few months, we can see how this act,
it’s not a peacetime act. It’s envisioned now
by the Secretary of War as a
potential wartime act to be used to occupy the south
to make sure that emancipation is done right, which is to
say that civil rights are guaranteed, that the freed
people are protected, and that this is done not only
in reactive but a proactive way, all of this flowing
from what is the Civil Rights Act of 1866, which
then of course, becomes the 14th Amendment, although
these enforcement issues are not in the 14th Amendment. But if one wanted to be a
clever constitutional theorist, you could use some like, Akhil
Amar, like inter-language stuff to put these two together and
say that the 14th Amendment has this kind of enforcement
to it because they were, after all, passed by
exactly the same people, having exactly the same intent. It’s not such a stretch. And I’ve never spoken
to Amar about this, so I don’t mean to say– maybe he’s already
suggested such a thing. I don’t think so though. So that’s what the act does. Now, those who are really
interested in original intent may ask me, well,
the congressmen who created that clause,
the clause that Stanton uses, that I showed you,
was that their intent? Did they really envision the
war going on indefinitely and that the Army would
be used indefinitely? And with any such
question, original intent is always elusive. I can certainly
speak to the fact that there were
congressmen at this time, and Lyman Trumbull
being the most obvious, who said exactly this. That basically that this
act was to make sure that the tendrils
of slavery never reappear to destroy
the country again and if that means using
the Army, so be it. And he’s also a very
clever politician because he says, because
the Democrats are saying that this clause is
too overreaching if I create a military dictatorship. And Trumbull has a
wonderful answer. He says, well, obviously,
when they passed it in 1838, they weren’t worried about it. They passed it then, and that
was a Democratic president, Martin Van Buren,
and the country seemed to live through it. So what’s your problem? And so he’s a very
clever politician. So I can speak more to the
original intent if you wish, but the more important
thing is then, what does this all
mean for today? And I can’t give you
the definitive answer on what it necessarily means,
but I can make some, excuse me, suggestions. It seems to me that if we now
begin to understand the Civil Rights Act and potentially
the 14th Amendment on its own terms, what
we then begin to see is a couple things. First of all, that the
Doctrine of Preemptive War, like it, hate it, whatever,
what you should not do is think that it’s somehow the
product of a recent vintage war against terror. It is not. It is the product of
a war against terror from 1865 to 1867,
where the terror was against black people. And I use that word quite
deliberately because it is exactly the
word, terror, that was used during the
Ku Klux Klan hearings and even before to describe what
white paramilitary groups were doing against African Americans. And I say paramilitary,
sometimes they’re not paramilitary,
they’re the police. In the case of the
New Orleans riot, the first killing is done
by a New Orleans cop. So to think about that
is kind of important, that preemptive war might
have some legitimacy, but if you’re going
to give it legitimacy, give it the correct legitimacy. That it’s not just to
use against these kind of remote terrorists who
get to be constructed as the government chooses
to construct them. It was also to make
sure that the rights of American citizens, who
were the least protected were protected and
to use preemptive war to make sure that is done. So that’s a way to think
about international law and preemptive war in a new way. And the other implication
is sort of more obvious, which is to think of
the civil rights– to civil rights generally
today as something where the use of federal
force isn’t just necessarily a one-off. it is absolutely allowable,
reactively and proactively, in places where you know
that there is or could be discrimination against
African Americans, badges of servitude,
which might include racial profiling or
disproportionate sentencing, et cetera, et cetera. That these are exactly what the
civil rights folks had in mind and that they had in mind
this as a military measure. In 1957, when the National
Guard is sent to Arkansas, it’s done so, the authority
that Eisenhower uses is a piece of the National Guard Act. What piece? The piece that had come
from the Civil Rights Act that was taken
out of the Civil Code and put into the
National Guard Act. If you’re wondering what
happened to that clause, that’s where it ended up. So in a sense, when he sent
the troops to Arkansas, he was doing exactly what
Stanton and other Republicans would have expected him to do. The question is, why
aren’t we doing it today? Thank you. I’ll take questions now. [APPLAUSE]

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