The Free Market 18, no. 3 (March 2000)
Legal scholar Gene Healy has made a powerful argument in favor of abolishing the Fourteenth Amendment to the US Constitution. When a fair vote was taken on it in 1865, in the aftermath of the War for Southern Independence, it was rejected by the Southern states and all the border states. Failing to secure the necessary three-fourths of the states, the Republican party, which controlled Congress, passed the Reconstruction Act of 1867 which placed the entire South under military rule.
The purpose of this, according to one Republican congressman, was to coerce Southern legislators to vote for the amendment “at the point of a bayonet.” President Andrew Johnson called this tactic “absolute despotism,” the likes of which had not been exercised by any British monarch “for more than 500 years.” For his outspokenness Johnson was impeached by the Republican Congress.
The South eventually voted to ratify the amendment, after which two Northern states-Ohio and New Jersey-withdrew support because of their disgust with Republican party tyranny. The Republicans just ignored this and declared the amendment valid despite their failure to secure the constitutionally-required three-fourths majority.
The Cato Institute’s Roger Pilon, who is a supporter of the Fourteenth Amendment, has defended the way in which the amendment was adopted on the grounds that after the war some Southern states had enacted the “notorious Black Codes” (Liberty Magazine, Feb. 2000).
“What should Congress have done,” Pilon asked, “turn a blind eye to what was going on?” The notion that a racially-enlightened and benevolent Republican Congress unconstitutionally imposed the Fourteenth Amendment on the nation because it was motivated primarily (if not solely) out of concern with racial discrimination in the South is childishly naive and ahistorical. The fact is, Northern states pioneered viciously discriminatory “black codes” long before they existed in any Southern state, and these codes were supported by many of the same Northern politicians who voted for the Fourteenth Amendment.
The Revised Code of Indiana stated in 1862 that “Negroes and mulattos are not allowed to come into the state”; forbade the consummation of legal contracts with “Negroes and mulattos”; imposed a $500 fine on anyone who employed a black person; forbade interracial marriage; and forbade blacks from testifying in court against white persons.
Illinois-the “land of Lincoln”-added almost identical restrictions in 1848, as did Oregon in 1857. Most Northern states in the 1860s did not permit immigration by blacks or, if they did, required them to post a $1,000 bond that would be confiscated if they behaved “improperly.”
Senator Lyman Trimball of Illinois, a close confidant of Lincoln’s, stated that “our people want nothing to do with the Negro” and was a strong supporter of Illinois’ “black codes.” Northern newspapers were often just as racist as the Northern black codes were. The Philadelphia Daily News editorialized on November 22, 1860, that “the African is naturally the inferior race.” The Daily Chicago Times wrote on December 7, 1860, that “nothing but evil” has come from the idea of Abolition and urged everyone to return any escaped slave “to his master where he belongs.”
On January 22, 1861, the New York Times announced that slavery would indeed be a “very tolerable system” if only slaves were allowed to legally marry, be taught to read, and to invest their savings. In short, the cartoonish notion that the Republican party was so incensed over racial discrimination in the South after the war that, in a fit of moral outrage, it trashed all constitutional precepts to dictatorially adopt the Fourteenth Amendment, should not be taken seriously. As Alexis de Tocqueville wrote in Democracy in America, it was obvious to all that racial prejudice was stronger in the North than it was in the South. “The prejudice of race,” wrote Tocqueville, “appears to be stronger in the states that have abolished slavery than in those where it still exists.”
If the Republican party was so sensitive about racial discrimination in the post-war era it would not have sent General Sherman out west just three months after the war ended to commence a campaign of genocide against the Plains Indians. The very same army that had recently conquered and occupied the Southern states-led by Generals Grant, Sherman, and Sheridan-mass murdered Indian men, women, and children during the winters, when families would be together, with massive Gatling gun and artillery fire. In a letter to his son a year before he died (1889), Sherman expressed his regret that his armies did not murder every last Indian in North America.
The Fourteenth Amendment has had precisely the effect that its nineteenth-century Republican party supporters intended it to have: it has greatly centralized power in Washington, D.C., and has subjected Americans to the kind of judicial tyranny that Thomas Jefferson warned about when he described federal judges as those who would be “constantly working underground to undermine the foundations of our confederated fabric.” It’s time for all Americans to reexamine the official history of the “Civil War” and its aftermath as taught by paid government propagandists in the “public” schools for the past 135 years.
Thomas J. DiLorenzo is professor of economics at Loyola College and an adjunct scholar of the Mises Institute.
