The guarantee clause and the reconstruction amendments

• Threshold question: Are reconstruction amendments part of USC?

• Status of Southern states in 1865.

• Southern states theory. We never left union, so we can resume our place in Congress with no strings attached.

• President Andrew Johnson. Southern states were temporarily disqualified from full membership because of treason of their officers, but can be readmitted by president’s power of pardon and war power.

• Congressional radicals. Secession was illegal, but is an accomplished fact; therefore, the former southern states are conquered provinces with no constitutional rights whatsoever.

• Disorganized-states theory:

1. States never left union, but are without governments, which Congress can now provide via guarantee clause.

2. However, they continue to exist as states, and that remains a limit on Congressional power. This theory underlies Military Reconstruction Act of 1867 and Texas v. White.

Texas V. White

• Texas’s newly reconstructed government sought to recover U.S. bonds that were in its treasury before Civil War, and that rebel government had paid out in exchange for war supplies. The bonds were transferable only if endorsed by Governor of Texas. Texas will not be readmitted into Union until 1870; when this case was brought, Texas was under provisional government, under continuing military supervision, and had no representation in Congress.

• Issue. Was petitioner authentically state of Texas? Is this a suit in which state is a party, and thus subject to SC’s original jurisdiction under Article 3? SC ultimately ruled in favor of TX.

• Holding. Yes. Secession was unconstitutional and Congress had power under Guarantee Clause to reconstruct state governments.

Validity of 13th and 14th Amendments

• This legitimacy issue resembles that of New Deal. As shown by chronology below, how can 13A and 14A both be part of USC? 13A’s ratification depended on votes of southern government’s which were then declared void by Congress and excluded from Union until they ratified 14A.

• Feb/Dec 1865. 13A ratified by Southern states at Johnson’s insistence, simultaneously with Congressional elections in South.

• Dec 1865. 13A proclaimed valid; southern reps excluded from Congress.

• June 1866. 14A proposed by (rump) Congress. Tennessee ratified in July and was admitted to Congress; other 10 seceded states rejected and were excluded.

• Fall 1866. Johnson, now allied with Democrats, argued unconstitutionality of Southern exclusion from Congress and illegitimacy of 14A. 14A was central issue in election. Sweeping victory for Congressional Republicans: more than 2/3 of both houses of Congress (enough to override any presidential veto), every Northern state legislature, every northern gubernatorial contest.

• March 1867. Military Reconstruction Act placed Southern governments under military supervision. Can’t get back in until they ratify 14A.

• 1868. 14A ratified.

• March 1868. Johnson stopped obstructing Reconstruction and avoided impeachment.

• Reconstruction is another keystone of Ackerman’s constitutional theory. As in 1787 and 1937, a radical change in the nature of the federal government, achieved by legally questionable means, and ratified by a landslide election.