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Section One: Civil Rights // Section Two: Apportionment
Section Three: Punitive Measures // Section Four: Confederate Debt

Ratification of the Thirteenth Amendment in December 1865 not only meant the abolition of slavery, but also nullification of the Constitution’s three-fifth clause (Article I, Section 2).  Previously, each state’s representation in the U.S. House and its federal taxation were determined by the number of its residents, including only three-fifths of its slaves.  Thereafter, the ex-slaves, since they were then free people, would all be counted when calculating each state’s representation in the U.S. House and its federal taxation.  One result would be a greatly increased number of Southerners in Congress.  That prospect alarmed many Northerners, especially when it arose at the same time that the former Confederate states had passed discriminatory Black Codes. Therefore, Republicans proposed constitutional amendments to rectify the situation.

One possible solution was to base representation on the number of eligible voters, rather than on population.  In that way, the South would not benefit from the abolition of slavery with enhanced political power, and each state would have an incentive to grant voting rights to black men.  A constitutional amendment to determine federal representation by the number of a state’s eligible voters had first been proposed by Senator Charles Sumner of Massachusetts in February 1865, two months before the Civil War ended, while Congress was debating the proposed Thirteenth Amendment.  On December 4, 1865, he reintroduced the apportionment amendment, along with several measures related to Reconstruction.

In the January 13, 1866 issue of Harper’s Weekly (published January 3), editor George William Curtis reviewed problems in the postwar South springing from ex-Confederates dominating the political process.  He argued for further requirements imposed on the Southern states to ensure the protection of civil rights and liberties, including an amendment to base representation on voters instead of population.  (In the editorial, the “industrial system” and “industrial workers” refers to slavery and ex-slaves.)  In the February 24, 1866 issue, Curtis explained why it was necessary to amend the constitution regarding representation in Congress.

In December 1865 and January 1866, five resolutions were introduced into the House for constitutional amendments regarding apportionment of representation, with each referred to the Joint Committee on Reconstruction.  The resolution submitted by Republican Congressman James Blaine of Maine provided the basis for a constitutional amendment approved 13-1 by the committee on January 20: 

Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed; provided, that, whenever the elective franchise shall be denied or abridged in any State on account of race or color, all persons therein of such race or color shall be excluded from the basis of representation.

Democratic Congressman A. J. Rogers of New Jersey cast the only negative vote on the committee, and Democratic Senator Reverdy Johnson was absent.  The wording included “persons” instead of “citizens” because that was the traditional basis for apportionment and so that Northern states would not lose representation, thereby making its congressmen more inclined to vote for the amendment.  On January 22, Senator William Fessenden, as committee chairman, introduced the resolution into the Senate, and Congressman Thaddeus Stevens introduced it into the House. 

A week later, Republican Congressman Henry Raymond, publisher of The New York Times, spoke out against the proposed amendment.  He did not want to meddle with the Constitution, and argued that the Southern states reconstructed under President Johnson’s policy should have their representatives seated in Congress.  Raymond’s remarks represented the views of Northerners who agreed with President Johnson that the federal government had only limited authority over the states and that Reconstruction should be as quick and easy for the South as possible. 

Also opposing the proposed amendment, but from a very different perspective, was Harper’s Weekly editor George William Curtis.  Writing in the February 10, 1866 issue (published January 31), Curtis spoke for many when he characterized the measure as “a bribe of increased political power offered to the late Slave States to induce them to give political equality to their colored population.”  He reasoned that the amendment’s indirect language implied that states did have the power to withhold voting rights based on race, and that it did not prevent states from using a property qualification to exclude voters.  Furthermore, he asserted that racist sentiment (“the feeling of caste”) in the former Confederate states was so strong that they would prefer slightly fewer congressmen over enfranchising blacks; in other words, the amendment’s “bribe” would not work.

On January 30, 1866, the resolution was returned to the Joint Committee on Reconstruction, which struck out “and direct taxes.”  The next day, Congressman Stevens reintroduced it to the House, where it received the necessary two-thirds majority.  In the February 17, 1866 issue of Harper’s Weekly, editor Curtis conceded that the amendment would be valuable if “its passage will educate the public mind to further essential measures…”  However, he explained that the proposed amendment would not lead to the enfranchisement of black men because Southern Democrats realized that the ex-slaves would vote Republican; therefore, enfranchising blacks to increase congressional representation would not be in the interest of the region’s dominant Democratic Party.  Curtis pointed out how the amendment would affect a Northern state like New York, which also denied voting rights to black men.

On February 5, 1866, during the Senate debate on the proposed apportionment amendment, Senator Sumner offered a strongly worded substitute intended to prohibit the “denial of rights, civil or political, on account of race or color,” and affirm equality under the law and voting rights for blacks.  He criticized the current amendment for compromising on the issue of human rights, and warned that not enfranchising blacks would led to a race war as occurred in Santo Domingo. 

Two days later, Senator Fessenden responded to the objections of Sumner and others to the proposed apportionment amendment.  Fessenden argued that it was necessary to alter the Constitution so that it reflected a nation in which slavery no longer existed, in contrast to the previous era when the document was ratified.  He believed that the ex-slaves were not ready for voting rights, and that the necessary three-quarters of states would not at that time ratify an amendment, such as Sumner’s, that enfranchised blacks.  Fessenden also observed that the language of Sumner’s substitute would not exclude women from voting.  The chairman concluded that the amendment drafted by his Reconstruction Committee was the most practicable one possible.  On March 9, the Senate voted 25-23 in favor of the committee’s apportionment amendment, which was ten votes short of the necessary two-thirds majority for passage.

Harper's Weekly References

1)  December 16, 1865, p. 787, c. 3
“Domestic Intelligence” column

2)  January 13, 1866, p. 18, c. 2
editorial, “The Situation”

3)  February 24, 1866, p. 114, c. 1
editorial, “Amending the Constitution”

4)  February 3, 1866, p. 67, c. 4
“Domestic Intelligence” column

5)  February 10, 1866, p. 83, c. 4
“Domestic Intelligence” column

6)  February 10, 1866, p. 82, c. 1-2
editorial, “The Proposed Constitutional Amendment”

7)  February 17, 1866, p. 99, c. 3-4
“Domestic Intelligence” column

8)  February 17, 1866, p. 98, c. 1-2
editorial “The Constitutional Amendment”

9)  February 17, 1866, p. 99, c. 4
“Domestic Intelligence” column

10)  February 24, 1866, p. 115, c. 3-4
“Domestic Intelligence” column

11)  March 24, 1866, p. 179, c. 4
“Domestic Intelligence” column

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Section One: Civil Rights // Section Two: Apportionment
Section Three: Punitive Measures // Section Four: Confederate Debt





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