An Amendment Boomerangs

The 1868 Fourteenth Amendment was designed to ensure African-Americans the right to vote in the former Confederate states where 40% of the population was black and simultaneously leave black suffrage a matter of a State’s Right among the Northern states where blacks comprised only 2% of the population. Southern states could not be readmitted to the Union without ratifying the Amendment, which contradicted the Constitutional specification that only member states of the Union could vote on amendment ratifications.

The contradiction and awkward language of the Amendment was due to suspicion by Congressional Republicans that Northerners were not ready for black suffrage in their own states. Indeed, it was placed on the 1868 ballot in three Northern states and rejected by them all. Boiled down, the Fourteenth Amendment would enable black suffrage to be isolated in the Southern states if the Northerners didn’t want blacks to vote in their own states.

A Prime Beneficiary of the Fourteenth Amendment

A Boomerang Effect against the “progressive” doctrines often dubiously credited to Republicans became apparent twenty years later. The Amendment defined ex-slaves as “persons” who were to be recognized as “citizens.” States were prohibited from abridging the rights of any “citizen,” or depriving “citizens” of property without legal due process. Significantly, however, two Supreme Court cases in the late 1880s ruled that corporations were also “persons” whose property rights were protected by the Amendment. The decisions sharply curtailed the power of states to regulate railroads and other corporations.

During the twenty years before the Court recognized corporations as “persons” about seventy cases were decided under the Amendment. In the twenty years after the late 1880s rulings, the Amendment was invoked almost eight hundred times—more than ten times as often as before.

Historians Louis Hacker and Benjamin Kendrick conclude:

Thus, in general, the Court moved to check state interference with the rights of private property. It is important to recall that…the decisions…were aimed at Populist state legislatures whose farmer constituencies had demanded relief from the high-handed deportment of the railroad managers.

Finally, it is uncertain that the private property protection was a Boomerang Effect in the first place. Some of the Amendment’s authors evidently had such motives from the beginning. When Republican Ohio Congressman John Bingham wrote the “due process” clause, he composed it “word for word” to protect property rights. Later in 1882 when former New York Republican Senator Roscoe Conkling represented the Southern Pacific Railroad before the Supreme Court against California taxes, he argued as an architect of the Amendment that he labored to word it in a way to protect both private property rights and black civil rights “against the encroachments of state legislatures.”

In sum, there are good reasons to question Republican motives for the Fourteenth Amendment. Although commonly represented as a method to promote African-American civil rights, Republicans may have been more motivated by two other factors. First, the Amendment transformed the South into a Republican stronghold of puppet regimes controlled by Party leaders in Washington. It assured the electoral and Congressional votes to promote most any Republican goal. Second, its presumed altruistic racial objectives provided good cover for persistent Republican advocacy – even predating the Civil War – for the interests of industrialists and capitalists over those of farmers and consumers. After Republicans abandoned Southern blacks in the 1876 Presidential elections the Party’s identity with the wealthy and privileged became increasingly obvious.

Similarly, federal intervention sanctioned by the 1871 Ku Klux Klan Act was used to suppress violent striking workers in the late 19th and early 20th centuries, but that’s another story and a provocative one.

My Civil War Books

Lee’s Lost Dispatch and Other Civil War Controversies
Trading With the Enemy
Co. Aytch: Illustrated and Annotated