What do these terms mean? Do they mean that in all things civil, social, political, all citizens, without distinction of race or color, shall be equal? By no means can they be so construed.... Nor do they mean that ... their children shall attend the same schools. These are not civil rights or immunities. [Emphasis added.]
The Civil Rights Bill passed the House by 111-38 on March 13; it was vetoed on March 27, and passed over the veto on April 9.
These dates are important. Late in February 1866, the Stevens Committee had brought into the House one draft of a proposed Fourteenth Amendment. It had been debated, and then sent back for more work. On April 21, a new draft came before the committee. On April 25, amendments were approved in committee that put the amendment in the form in which it finally was to become part of the Constitution. These changes wrote into Section 1 new prohibitions upon the powers of the States: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the law.”
When the proposed constitutional amendment reached the floor of the House on May 8, both its friends and its foes reached remarkable agreement on the amendment’s primary purpose: to nail into the Constitution the Civil Rights Act of 1866 that on April 9 had been passed over the President’s veto. Stevens reminded his radical colleagues that a mere law always was subject to repeal by a majority of the House and Senate: “And I need hardly say that the first time that the South with their copperhead allies obtain the command of Congress it will be repealed.” An opponent of the resolution, Rogers of New Jersey, said the Stevens measure “is no more than an attempt to embody in the Constitution of the United States that outrageous and miserable civil rights bill....”
On the Senate side, when the resolution came there for debate on May 23, the same view was taken. Howard of Michigan, in charge of the paper, said the object was “to put this question of citizenship and the rights of citizens and freedmen under the civil rights bill beyond the legislative power.” Davis of Kentucky and Henderson of Missouri agreed. On June 8, the Senate voted in favor of the resolution, 33-11, with five Senators not voting; and on June 13 the House, which then had 184 members, completed action by concurring in the Senate amendments, 120-32, with 32 not voting. The House margin was four votes short of the two-thirds required under the Constitution for submitting an amendment, but the resolution was declared to be passed anyhow.
While all this was going on, other matters of course were coming before the Congress. One such matter was a bill passed in the Senate on May 21, providing for segregated schools in the District of Columbia. A companion bill, introduced in April, adopted in May, made effective in July, appropriated funds to the Negroes’ segregated schools. And year after year, from that time on until 1954, the Congress continued to provide for racially separate schools in the District of Columbia.
Not one iota of evidence can be adduced from the annals of Congress in 1866 to show that any responsible member of the House or Senate believed the Fourteenth Amendment in any fashion would affect the operation of segregated schools in the States. All that Negro counsel could produce in their reargument on the point in 1953, despite the desperate labors of Dr. Kelly and his associates, were some generalities, some sweeping statements of ideals, and other nebulous expressions on the part of radical abolitionists on the one hand and apprehensive States’ Righters on the other. It is plain that the Stevens-Sumner group won from the Thirty-ninth Congress two compromise instruments, a statute and a constitutional amendment, both intended to guarantee to the Negro the essential civil rights spelled out in the Freedmen’s Bill and in the Civil Rights Act—to sue and be sued, to own and inherit property, and the like. “The right to go to school,” as Senator Trumbull of Pennsylvania was to say in 1872 in debating the General Amnesty Act, “is not a civil right and never was.”
2. Actions of the State legislatures and constitutional conventions. The proposed Fourteenth Amendment to the Constitution went out to the States on June 18, 1866. Connecticut ratified on June 30, New Hampshire on July 6, Tennessee on July 19. New Jersey and Oregon, both of whom later were to rescind their actions, ratified in September. Then came a jolt: On October 27, Texas flatly rejected the proposed amendment, by a vote of 70 to 5 in the House and 27 to 1 in the Texas Senate. Vermont ratified on October 30, but on November 1 Georgia rejected by 147-2 and 38-0 in its House and Senate. Then, in rapid succession, Arkansas, Florida, North Carolina, and South Carolina spurned the amendment. In January 1867, Virginia, Mississippi, Kentucky, and Maryland rejected. Early in February, Delaware and Louisiana turned it down also.
On March 2, 1867, an infuriated Congress enacted over Johnson’s veto a law that seems incredible by any standpoint of constitutional law. This “Act to Provide for the More Efficient Government of the Rebel States” further defined the districts that had been created in the former Confederacy by earlier Reconstruction acts. Section 5 of the Act fixed two requirements for readmission of the Southern States to full standing in the Union. The first condition was that each of the States adopt a new State Constitution; the second was that, at the first legislature to be held after adoption of the new Constitution, each State must ratify the Fourteenth Amendment. Delegates to the State constitutional conventions were to be chosen by all male citizens regardless of race, except felons and those who had participated in the “rebellion.” No Confederate veteran who earlier had been a member of a State legislature, or held any other office under the government of a Southern State, could become a candidate for the new legislatures to be elected.
With that vindictive and extortionate act, military government settled upon the South and all semblance of free republican government vanished. With no alternative but to submit or remain under the sword, the Southern States accepted the amendment. Arkansas ratified in April 1868, Florida on June 9, North Carolina, South Carolina, Alabama, and Louisiana in July. Meanwhile, Ohio on January 13, 1868, had undertaken to rescind its ratification of the amendment, and New Jersey, on March 25, had done the same thing. In both States, recently the bitter foes of the South, the new amendment was denounced as unconstitutionally approved in the House of Representatives and unconstitutionally demanded of the Southern States. (It was several months later, in October 1868, that Oregon also attempted to rescind its ratification.)