Unenforced Sections of the 14th Reconstruction Amendment: Public Debt and Insurrection

What are the unenforced sections of the Fourteenth
Amendment?
Can the Republicans in the House of Representatives hold
the national and world economies hostage over the debt
ceiling negotiations?
Can the January 6th rioters be denied the right to hold
public office?
Could the representation of the former Confederate states
have been reduced when they passed the Jim Crow laws
denying black citizens the right to vote?

Please, we welcome interesting questions in the
comments. Let us learn and reflect together!
Feel free to follow along in the PowerPoint script we
uploaded to SlideShare.

Eric Foner’s Second Founding: The Reconstruction
Amendments to the Constitution
https://youtu.be/UciDV5laOLg
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Unenforced Sections of the 14th Amendment
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As Eric Foner puts it, “Together with far-reaching congressional legislation meant to
provide former slaves with access to the courts, ballot box, and public
accommodations, and to protect them against violence, the Reconstruction
Amendments greatly enhanced the power of the federal government, transferring
much of the authority to define citizens’ rights from the states to the nation.”.
(REPEAT) What were these Reconstruction Amendments?
• Thirteenth Amendment, ratified January 31, 1865: Slavery is abolished, except for
convict labor.
• Fourteenth Amendment, ratified July 9, 1868: Everyone born or naturalized in the
United States is a citizen of the US. All citizens are guaranteed due process and
equal protection under the law
• Fifteenth Amendment, ratified February 3, 1870: All citizens have the right to
vote.

Battle of Spottsylvania, Kurz & Allison Art Publishers, 1888
Thirteenth Amendment,
ratified January 31, 1865: Slavery is
abolished, except for convict labor.
Fourteenth Amendment,
ratified July 9, 1868: Everyone born
or naturalized is a citizen of the US.
All citizens are guaranteed due
process under the law
Fifteenth Amendment,
ratified February 3, 1870: All citizens
have the right to vote.

The Confederate states were compelled to adopt these Reconstruction
amendments before they were readmitted to the Union after their defeat in the
Civil War, and their state constitutions had to specifically abolish slavery.
Why were the three Reconstruction Amendments passed over a period of five
years, rather than immediately after the Civil War? The simple answer is that even
in the North there was not universal political support for due process for all
citizens, and there were Northern states who did not give blacks the right to vote
when the Civil War ended. On the eve of the Civil War, all states except for five New
England states restricted the right to vote to white men. Northern support
increased for the Reconstruction Amendments after Northerners witnessed the
intransience and hubris of the defeated Confederates and the violence and
injustices suffered by the former slaves in the Confederate states.
The 14th Amendment has the most sections of the Reconstruction Amendments.
Three of the sections have never been enforced.

Battle of Spottsylvania, Kurz & Allison Art Publishers, 1888
Southern States Readmitted into Union
July 24, 1866 -Tennessee is the 1st.
June 22, 1868 - Arkansas is the 2nd
June 25, 1868 - Florida is the 3rd
June 25, 1868 - Alabama is the 4th
June 25, 1868 - Louisiana is the 5th
June 25, 1868 - North Carolina is 6th
June 25, 1868 - South Carolina is 7th
June 25, 1868 - GEORGIA FIRST readmitted
December 22, 1869 - Second reconstruction
for Georgia began!
January 27, 1870 - Virginia is the 8th
February 23, 1870 - Mississippi is the 9th
March 30, 1870 - Texas is the 10th
March 30, 1870 - 15th Amendment ratified.
July 15, 1870 - Georgia is the 11th and last.
Thirteenth Amendment,
ratified January 31, 1865: Slavery is
abolished, except for convict labor.
Fourteenth Amendment,
ratified July 9, 1868: Everyone born
or naturalized is a citizen of the US.
All citizens are guaranteed due
process under the law.
Fifteenth Amendment,
ratified February 3, 1870: All citizens
have the right to vote.

FIFTEENTH AMENDMENT
The text of the 15th
Amendment,
guaranteeing all citizens
the right to vote, is as
follows:
The right of citizens of the
United States to vote
shall not be denied or
abridged by the United
States or by any State on
account of race, color, or
previous condition of
servitude.

First Reading of the Emancipation Proclamation by President Lincoln, Francis Bicknell Carpenter, painted 1864
Wikimedia webpage lists federal officials in this painting.

Fourteenth Amendment
Section 1: All persons born and naturalized in the
United States are citizens, and all citizens are entitled
to due process and equal protection under the law.
Section 2: NEVER ENFORCED: If a state denies the right
to vote to a class of its citizens, its representation for
the Presidential Electoral College and the House of
Representatives shall be reduced.
Section 3. ENFORCED ONLY AFTER CIVIL WAR: Anyone
guilty of insurrection or rebellion is disqualified from
running for public office in not only the federal
government, but also state and local elected offices.
Section 4. NEVER ENFORCED: Ensuring the validity of
the public debt of the United States.

We have already discussed the first section of the Fourteenth
Amendment, using Eric Foner’s book, The Second Founding, as
our main source, but we have not been satisfied with the
national media’s recent coverage of the unenforced sections of
this Due Process Amendment. We are as expert as anyone on
these unenforced sections because nobody can truly say they
are an expert, because there is very little judicial precedent, and
no enabling Congressional legislation, regarding these dormant
provisions. We are using mainly Dr Wikipedia and recent
magazine articles as sources, as Eric Foner’s book does not
adequately cover these unenforced sections.

Fourteenth
Amendment, by EW
Kemble, 1902

Penalties For States Denying Suffrage

The representation for the former Confederate States should have been reduced
when the Jim Crow laws disenfranchised most black citizens after Reconstruction,
but the support for civil rights among Northern Republicans flagged as many in the
South threatened to restart the Civil War if Reconstruction was not ended.
The historical background was the disputed 1876 Presidential Election. There was
widespread voter fraud in the Southern Confederate states, there was massive
voter suppression by the Ku Klux Klan and other white supremacists, including
actual and threatened violence against black voters, and there were even ballots
discarded and ballot boxes stolen from many black majority voting districts. Just as
in the 2020 election, both the Lincoln Republican and segregationist Democratic
parties selected their own slates of electors in the contested states of Florida,
Louisiana, South Carolina, and Oregon. In South Carolina, about a hundred and fifty
black Republicans were murdered during the election, and the Democratic Party
claimed there were more votes cast than there were voters.

https://en.wikipedia.org/wiki/1876_United_States_presidential_election

Republicans recently used this incident as precedent, as they also elected their own slate of
electors in the contested states in 2020. The difference between the illegal electors selected in
these two elections is that the 1876 illegal electors were never prosecuted, although they are
being prosecuted today. To avoid restarting the Civil War, Congress selected an Electoral
Commission of both Senators and Congressman. The Northern congressmen agreed to withdraw
federal troops from the South in exchange for the Southerners agreeing to accept that the
Republican candidate for President, Rutherford B Hayes would succeed General Ulysses Grant as
the next President.
Before the Civil War, slaves only counted as three-fifths of a person when counting the
representation of the Southern states, but after the emancipation of the slaves, the Southern
Confederate states would actually have increased representation for both the House of
Representatives and Presidential electors. Therefore, under Congressional Reconstruction the
Confederate states were compelled to pass the Reconstruction Amendments as a condition of
being readmitted to the Union. Without this the Reconstruction Amendments would not have
passed.

Emancipation
from Freedmen's
viewpoint,
illustration from
Harper's Weekly
1865

Insurrectionists Barred From Public Office

In the first Congressional elections after the Civil War, voters in many
Confederate states elected former Confederate officials to office under
the generous Presidential Reconstruction. In addition, the newly formed
Southern governments enacted harsh black codes, which essentially re-
enslaved the former slaves with oppressive legislation. The Union
Congress refused to seat these congressmen and enacted Congressional
Reconstruction, placing the defeated Southern states under military
governments, requiring them to apply for readmission to the Union after
suffrage was granted to former slaves, after Civil Rights legislation was
passed by the state Legislatures, and after the states passed the
Reconstruction Amendments.

Holding the Line at All Hazards, by William Gilbert Gaul, painted 1882
Holding the
Line at All
Hazards, by
William Gilbert
Gaul, painted
1882

After the Southern states were readmitted to the Union, a blanket amnesty was
passed for former Confederate soldiers in 1872, and restrictions for the few
hundred former Confederate officials were removed in 1898.
After the 2020 election, there was litigation challenging whether Madison
Cawthorn and Marjorie Taylor Greene could serve in the House of Representatives
since they supported the January 6th insurrectionists. Cawthorn’s attorneys argued,
and the Republican leaning federal judge agreed, that the Amnesty Act of 1872
applied prospectively to Cawthorn, but this was never appealed since he lost his
bid for reelection. It is unclear whether MJT’s ruling was appealed. A New Mexico
court did disqualify a participant in the January 6th riot from running for county
commissioner. We can expect future challenges when January 6th rioters run for
political office.

Validity of Public Debt of United States

Before the Civil War, the congressmen of the Southern
states controlled most branches of the government. At the
end of the Civil War, there was concern that if the
Southern congressmen once again gained control of
Congress, they would validate the Confederate war debt
and invalidate the Union war debt, regardless of the
economic consequences. After all, Andrew Jackson had
previously dismantled the US Bank, which greatly
damaged the US economy.

Thus, the Fourteenth Amendment, in addition to
invalidating the Confederate war debt, declared that
“the validity of the public debt of the United States,
authorized by law, including” “payment of pensions”,
“shall not be questioned.”

Congress never passed enabling legislation for this section, as it was not needed.
There is a narrow Supreme Court decision that rules on this section. When FDR was
compelled to abandon the strict gold standard during the deflationary economy of
the Great Depression, the Supreme Court heard several Gold Clause cases, among
them Perry v. United States, where they ruled that the section validating the public
debt could be prospectively applied to future periods.
What was the origin of this odd notion that Congress would need to raise the public
debt ceiling every so often? The House of Representatives controls the purse
strings, it passes an annual appropriations budget that must be approved by the
Senate. In addition, Congress also approved each issuance of Treasury bonds. But in
the early twentieth century, they streamlined this process, and instead approved
raising the debt ceiling every few years.

FDR’s First Fireside Chat on the Banking Crisis, and First Inaugural Address, March 1933

The raising of the debt ceiling only became a political issue when the Tea Party
Republicans during the Obama Presidency decided to hold the economy hostage to
demand unreasonable spending cuts. At this time, many legal scholars questioned
whether this demand was constitutional under the 14th Amendment, but Obama,
who was also a former law professor, did not want to set undesirable precedent,
and agreed to unwise concessions so the Republican House of Representatives
would raise the debt ceiling. Since they were burned by the prior debt ceiling crisis,
President Biden’s position is his administration will not negotiate the debt ceiling
itself, since it represents the shortfall created by both Trump’s tax cuts and the
heavy expenditures required by the COVID crisis, it will only negotiate spending in
the upcoming budget.
Ian Millhiser, attorney, author and correspondent for VOX, uses mob metaphors to
describe this crisis:

Tea Party Protests in Washington, DC and Dallas, Texas, 2009

Quoting Ian Millhiser, VOX contributor:
“House Republicans are currently
trying to use the debt ceiling to extract
policy concessions from President Joe
Biden, and their pitch to Biden more
or less boils down to ‘that’s a pretty
nice economy you’ve got there, would
be a shame if someone broke it.’ The
idea is that, by threatening a debt
default that would trigger an
economic calamity, Republicans can
force Biden to agree to spending cuts,
such as cuts to Medicaid or rolling
back much of Biden’s signature
Inflation Reduction Act, that they
could not obtain in a budget
negotiation without this leverage.”

Is this Republican blackmail constitutional? Most scholars
and the Justice Department do not think so, although
there are some conservative scholars who disagree. And
there is no Supreme Court precedent for this question.
President Biden has publicly stated that the Fourteenth
Amendment question is on the table.

Can Biden Do What Needs To Be Done?

These is precedent for the President to take needed action
when an emergency threatens the security and well-being
of the entire country. At the outbreak of the Civil War,
Congress was not in session, and Maryland public officials
threatened to disrupt the reinforcement of the capital by
rail, which could have caused the North to lose the Civil
War before it began. In addition, Lincoln himself had to be
smuggled through Maryland some months prior when he
assumed the Presidency.

Bombardment of Fort Sumter, Currier & Ives, 1861

By executive fiat, Lincoln suspended the writ of habeas corpus in Maryland, which
meant that anyone supporting the Confederacy could be indefinitely imprisoned for
the duration of the war. Maryland officials appealed to the Supreme Court, and the
Confederate-sympathizing Supreme Court led by the Southern Chief Justice Roger
Taney ruled that only Congress could suspend the writ of habeas corpus, which was
an order that Lincoln ignored.
Most Southern Congressmen resigned at the start of the Civil War, so once the new
Union dominated Congress convened, they quickly passed the Habeas Corpus
Suspension Act of 1863, validating the actions of Lincoln. The difference between
this crisis and today’s debt ceiling crisis is today the Republicans control the House,
while the legal justification for validating the public debt is much stronger.

Matthew Brady photo of Roger Taney, and Supreme Court Building

The wild card question is: Today, how would the Republican Supreme Court rule on
the validity of the public debt? We must keep in mind that in the Jim Crow years,
the Southern dominated Supreme Court totally ignored the legislative intent of the
Reconstruction Amendments. Would they simply ignore the legislative intent of the
Fourteenth Amendment today as it applies to the public debt?
This question means President Biden may be forced to ignore any Republican
failure to pass a clean debt ceiling by going down to the wire, allowing the stock
market to tank, allowing the retirement accounts of millions of America to lose
value, to possibly weather a credit downgrade of US debt, before simply declaring
on national television that the US must pay its debts, whether the Congress agrees
or not. These drastic consequences would hamstring the Supreme Court, they
could then simply decline to hear the case, on the grounds that it is reluctant to
rule on disputes between co-equal branches of government.

.”
Emancipation Proclamation, AA Lamb, painted 1864

In addition to Dr Wikipedia, we found that the VOX article
by Ian Millhiser on the debt ceiling crisis to be an excellent
legal history of the issues involved, he goes into more
detail.

“House Republicans are currently
trying to use the debt ceiling to extract
policy concessions from President Joe
Biden, and their pitch to Biden more
or less boils down to ‘that’s a pretty
nice economy you’ve got there, would
be a shame if someone broke it.’ The
idea is that, by threatening a debt
default that would trigger an
economic calamity, Republicans can
force Biden to agree to spending cuts,
such as cuts to Medicaid or rolling
back much of Biden’s signature
Inflation Reduction Act, that they
could not obtain in a budget
negotiation without this leverage.”

We also compared the January 6th lies that the election
was stolen from Donald Trump to the lies by the
playwright Aristophanes that Socrates was impious and
corrupted the youth, lies which led to his unjust trial and
execution after the end of the Peloponnesian Wars.

We also compared whether the actions of Euthyphro,
where he accused his father of the neglectful death of his
slave in public court, to the son of the accused January 6th
rioter who turned his father into the FBI, explaining his
actions on CNN, on national television. Whether these
were virtuous actions is a question that cannot be easily
answered.

To find the source of any direct
quotes in this blog, please type in
the phrase to the search box in
my blog to see the referenced
footnote.
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