The Reconstruction Congress

ARTICLE The Reconstrnction Congress David P Curriet The Editors of The University of Chicago Law Review wish to acknowledge the passing of Professor Currie while this Article was being preparedfor press.We offer our condolences to his family, friends, and colleagues. This article is a sequel to The Civil War Congress,which appeared not long ago in The University of Chicago Law Review.' Both are ele- ments of a continuing study of extrajudicial interpretation of the Con- stitution, with an emphasis on the debates in Congress.2 The present installment begins where the preceding one left off: with the accession of Andrew Johnson to the presidency upon the assassination of Presi- dent Lincoln in April 1865. The war was over. There was no peace treaty, of course. One makes treaties with foreign countries, not with rebels at home. The overriding task confronting Congress and the new President was to restore the states that had attempted to secede to their proper place in the Union. Six years would pass before this goal was fully achieved. Three Congresses would sit during that period, and this article is correspond- ingly divided into three parts. The first two years were dominated by issues respecting Reconstruction itself, culminating in the famous Re- construction Act of 1867,' and by congressional efforts, first by statute and then by constitutional amendment, to guarantee the civil rights of the newly freed slaves. During the following two years, Reconstruction took something of a back seat to the impeachment of President John- t Edward H. Levi Distinguished Service Professor of Law Emeritus, The University of Chicago. 1 73 U Chi L Rev 1131 (2006). 2 For earlier fruits of this study, see generally David P. Currie, The Constitution in Con- gress: The Federalist Period, 1789-1801 (Chicago 1997); David P. Currie, The Constitution in Congress: The Jeffersonians, 1801-1829 (Chicago 2001); David P. Currie, The Constitution in Congress: Democrats and Whigs, 1829-1861 (Chicago 2005); David P. Currie, The Constitution in Congress: Descent into the Maelstrom, 1829-1861 (Chicago 2005). 3 14 Stat 428 (Mar 2, 1867); 15 Stat 2 (Mar 23, 1867); 15 Stat 14 (July 19, 1867); 15 Stat 25 (Mar 11, 1868). The University of Chicago Law Review [75:383 son. The final two years witnessed, at last, the readmission to Congress of senators and representatives from the last four of the seceding states. Not surprisingly, constitutional questions unconnected to either Reconstruction or impeachment kept cropping up during the period covered by the present study. They too will be discussed as we go along. I. CONGRESS TAKES THE REINS A. The Exclusion of Southern Members President Lincoln, as I reported in the preceding article, had be- gun the reestablishment of state governments during the Civil War as the Union armies advanced, and for a time Congress had seated members from reconstructed states-Virginia, Louisiana, and Tennessee. This practice had ceased abruptly with the meeting of the Thirty- eighth Congress in December 1863.' Presidential reconstruction, however, proceeded apace under Lincoln's successor.5 Six weeks after taking office--on May 29, 1865- President Johnson issued a proclamation appointing William W. Hol- den provisional Governor of North Carolina.' The rebellion had left that state without civil government, the President wrote, and it was the responsibility of the United States to secure it one that was republican. Holden was specifically directed to call a constitutional conven- tion to reestablish republican government and to restore normal rela- tions between North Carolina and the Union.7 Within a few weeks, Johnson had appointed provisional governors for six other seceding states and recognized the governments set up under Lincoln's aus- pices in the other four.8 4 See Currie, 73 U Chi L Rev at 1210-24 (cited in note 1). 5 This story is told in detail in Eric L. McKitrick, Andrew Johnson and Reconstruction (Chicago 1960). 6 See Andrew Johnson, Proclamation (May 29, 1865), in James D. Richardson, ed, 6 A Compilationof the Messages and Papers of the Presidents 1789-1897 ("Richardson") 312,312-14 (US Congress 1900). 7 See id at 312. 8 See id at 314-16 (June 13, 1865) (Mississippi), 318-20 (June 17, 1865) (Georgia), 321-23 (June 17, 1865) (Texas), 323-25 (June 21, 1865) (Alabama), 326-28 (June 30, 1865) (South Caro- lina), 329-31 (July 13, 1865) (Florida). For Johnson's earlier recognition of the preexisting governments of Virginia, Arkansas, Louisiana, and Tennessee, see id at 337-38 (May 9, 1865) (Vir- ginia); Eric Foner, Reconstruction:America's Unfinished Revolution, 1863-1877 182 (Harper & Row 1988) ("lln May 1865, Johnsonl extended recognition to the Southern governments created under the Lincoln administration (Arkansas, Louisiana, Tennessee, and Virginia), none of which had enfranchised blacks."). "In all of the States," said the President in December 1866, "civil authority has superseded the coercion of arms." Andrew Johnson, Second Annual Message (Dec 3, 1866), in 6 Richardson 445,445 (cited in note 6). 20081 The Reconstruction Congress Constitutional conventions were held. At the President's request they uniformly repudiated secession, slavery, and rebel debts. 9 Elec- tions were conducted. By the time the Thirty-ninth Congress con- vened in December 1865, reconstructed governments were functioning in eight of the eleven former Confederate states, seven of which had ratified the proposed Thirteenth Amendment and several of which had sent senators and representatives asking to be seated in Congress." By prearrangement, the Clerk of the House declined to call the names of representatives from the seceding states. New York Democ- rat James Brooks objected: "Is not the State of Tennessee in the Un- ion?"" Thaddeus Stevens's answer was no: "The State of Tennessee is not known to this House nor to Congress."" Congress itself was more circumspect, if little more accommodat- ing. Virtually the first thing it did was to establish a joint committee to consider whether or not to seat members from states that had joined the insurrection: Resolved by the House of Representatives, (the Senate concur- ring,) That a joint committee of fifteen members shall be appointed, nine of whom shall be members of the House and six members of the Senate, who shall inquire into the condition of the States which formed the so-called confederate States of America, and report whether they, or any of them, are entitled to be represented in either House of Congress, with leave to report " at any time by bill or otherwise. Two months later, on February 20, 1866, the Joint Committee reported a second resolution: Be it resolved by the House of Representatives, (the Senate con- curring,) That in order to close agitation upon a question which seems likely to disturb the action of the Government, as well as 9 See Johnson, Second Annual Message (Dec 3,1866), in 6 Richardson at 446 (cited in note 6). 10 See President Johnson's December 18, 1865 reply to a Senate inquiry, in 6 Richardson 372, 372-73 (cited in note 6) (reporting that North Carolina, South Carolina, Georgia, Alabama, Mississippi, Louisiana, Arkansas, and Tennessee had functioning governments and that each of these states except Mississippi had ratified the Thirteenth Amendment). See also Johnson, Sec- ond Annual Message (Dec 3,1866), in 6 Richardson at 445-46 (cited in note 6). 11 Cong Globe, 39th Cong, 1st Sess 3 (Dec 4, 1865). 12 ld at 31 (Dec 12,1865). 13 Id at 30,46 (Dec 12 and 13, 1865, respectively). As passed by the House, this was a joint resolution. The Senate amended it to make it concurrent instead, "inasmuch as a joint resolution goes to the President for his signature." Id at 24 (Dec 12, 1865) (Sen Anthony). Responding to Representative Raymond's query why calling a resolution concurrent would obviate presenta- tion to the President under Article I, § 7, Thaddeus Stevens said it was a matter of tradition, which he traced to the express authority of each House to determine its own rules. See id at 47 (Dec 13, 1865). See also US Const Art I, § 5. The University of Chicago Law Review [75:383 to quiet the uncertainty which is agitating the minds of the people of the eleven States which have been declared to be in insurrection, no Senator or Representative shall be admitted into either branch of Congress from any of said States until Congress shall have declared such State entitled to such representation." The House passed this resolution on the spot." In the Senate, it took a little longer. But, by March 2, eleven states had been formally ex- cluded from Congress." There was no debate in the House. Two objections were made in the Senate, one procedural and one substantive. The first was that Article I, § 5 of the Constitution made each House sole judge of the elections of its members: the decision whether to seat an aspiring claimant was a responsibility the Senate could not share with the House.17 Defenders of the resolution had two responses to this argument. In the first place, said Illinois Senator Lyman Trum- bull, it was not the task of either House in judging the "elections, re- turns and qualifications" of its members to pass on the legitimacy of state government." Yes, it was, said Senator James Doolittle of Wis- consin: "We have a right to inquire whether there was a Legislature to elect them, whether the people were in a condition to choose a Legis- lature to elect them ... the Senate is to judge for itself whether members have been elected to this body."9 That seems right as a matter of principle: surely it would be the Senate's duty to reject a claimant from New Zealand on the ground that New Zealand was not a state.'° Indeed, the Supreme Court had said as much in the famous case of Luther v Borden:" 14 Cong Globe, 39th Cong, 1st Sess 943 (Feb 20, 1866).

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