Alternate Fourteenth Amendments

A while back, Steve posed the following question in comments:

Was there any attempt that you know of to write into law anything about secession? That would have been the obvious route to take after the Civil War.

Well, in the midst of researching a future post (that may make its way hereabouts someday), I came across an interesting historical footnote.  Apparently, during the period between Congressional proposal & state ratification of the Fourteenth Amendment, various Southern states – which rejected the Fourteenth – proposed an alternative, “Southern Compromise” amendment that did include a section banning secession.  Following is the (italicized) full text of one such proposal, with my commentary after each section.

Section 1.  The Union under the Constitution shall be perpetual.  No States shall pass any law or ordinance to secede or withdraw from the Union, and any such law or ordinance shall be null and void.[1]

This, of course, is the anti-secession provision.[2]

Section. 2. The public debt of the United States authorized by law shall ever be held sacred and inviolate.  But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the government or authority of the United States.[3]

The equivalent of Sec. 4 in our Fourteenth.  Note that the second sentence does not prohibit payment of federal or state compensation to ex-owners of emancipated slaves.

Section. 3. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the States in which they reside, and the Citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States. No State shall 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 laws.[4]

The equivalent of Sec. 1 in our Fourteenth.  The “privileges and immunities” clause of this section is a verbatim copy of the Comity Clause in the original Constitution.  I’m not sure of the reasons behind this change.

Section. 4. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when any State shall, on account of race or color, or previous condition of servitude, deny the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, and other officers elective by the people, to any of the male inhabitants of such State, being twenty-one years of age, and Citizens of the United States, then the entire race or color class of persons so excluded from the elective franchise shall not be counted in the basis of representation.[5]

The equivalent of Sec. 2 in our Fourteenth.  Unlike that provision, the effect of this one is limited to disfranchisements “on account of race or color, or previous condition of servitude” seems to have been intended to permit literacy tests & the like (and hence same sort of state-level end-run that actually occurred historically around the Fifteenth Amendment).[6] Note also the absence of the Fourteenth Amendment’s exception for abridgments based on “participation in rebellion, or other crime.”  This is unsurprising, given the origins of this proposal.

Note that the Southern Compromise completely omitted Sections 3 & 5 of our Fourteenth.  Given the vehement opposition these provisions aroused in the postwar south, [7] I suppose this was predictable.

As to why this “Southern Compromise” was rejected…I’m not sure, but my SWAG is ‘cuz the actual Fourteenth Amendment was pretty popular in the North.  (The Republicans made the amendment their platform, and swept the 1866 Congressional elections.)  The absence of punitive provisions probably didn’t help matters; even if the North didn’t want to hang every rebel, they did want treason made odious to some extent.  Ditto the prospect of getting taxed to pay compensation for former rebels’ emancipated slaves.  The addition of a provision declaring what most northerners believed to be already in the Constitution anyway (i.e., the illegality of secession) was probably viewed as chump change by comparison.

Speaking of punitive provisions…the diametric opposite of the Southern Compromise’s deletion of Sec. 3 could be found in the House’s final draft of the Fourteenth:

SEC. 3.  Until the 4th day of July, in the year 1870, all persons who voluntarily adhered to the late insurrection, giving it aid and comfort, shall be excluded from the right to vote for Representatives in Congress and for electors for President and Vice President of the United States.[8]

At least as I read this provision, it would have disfranchised (at the very least) anyone who voluntarily served in the Confederate military, all former Confederate officials, anyone who lent money to the Confederate government or to rebel states, and anyone who supplied goods or services to the Confederacy.  Compare with the actual Sec. 3, which merely barred from office some Confederate leaders.  I’m not sure why the Senate Republicans killed the House’s disfranchisement provision (one of these days I’ll read up on the Fourteenth Amendment’s history & find out for sure), but I thought it interesting to note.


[1] See WALTER L. FLEMING, 1 DOCUMENTARY HISTORY OF RECONSTRUCTION 239 (1906) (hereinafter FLEMING).

[2] A variant on this provision, which was proposed by President Johnson, read as follows:

No State under the Constitution has a right of its own will to renounce its place in, or to withdraw from the Union.  Nor has the Federal Government any right to eject a State from the Union, or to deprive it of its equal suffrage in the Senate, or of representation in the House of Representatives.  The Union under the Constitution shall be perpetual.

See 1 FLEMING, supra note 1, at 239-240.

[3] Id. at 240.

[4] Id.

[5] Id.

[6] Note that this particular “southern substitute” for the Fourteenth was accompanied by a proposed amendment to the state constitution, which purportedly granted voting right to freedmen “who can read, and write, or who may be the owner of two hundred and fifty dollars worth of taxable property.”  Of course it also included a “grandfather clause,” exempting from such requirements anyone “who has heretofore exercised the right of suffrage under the Constitution of this State….”  See 1 FLEMING, supra note 1, at 239.

[7] Regarding opposition to Sec. 3, see FLEMING, supra note 1, at 236-237 (reprinting Arkansas & Florida resolutions rejecting the Fourteenth Amendment); also Joseph B. James, Southern Reaction to the Proposal of the Fourteenth Amendment, 22 J. SOUTHERN HIST. 477, 484-485 (1956) (noting Texas legislature’s criticism of Sec. 3); also id. at 490 (noting similar criticism by Georgia governor).  Regarding opposition to Sec. 5, see Steven A. Engel, The McCulloch Theory of the Fourteenth Amendment: City of Boerne v. Flores and the Original Understanding of Section 5, 109 Yale L.J. 115, 144-145 (1999) (noting southern concerns regarding the potential breadth of Congressional power under Sec. 5).

[8] See CONG. GLOBE. 39th Cong., 1st Sess., at 2545 (1866).

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