This article is part of TPM’s series on voting rights and democracy.
A hundred and fifty years ago tomorrow, on July 28, 1868, the Fourteenth Amendment, still the foundation for birthright citizenship and individual rights, was ratified for the third and final time. The strange saga of the 19 days between its first and final ratifications is a timely reminder that Civil War Era Republicans were fiercely determined to remake a broken Constitution and permanently reduce the power of Southern planters.
Today, facing an increasingly anti-democratic political system, Democratic activists might well look to those Civil War Republicans as bulwarks against despair and guides for a path forward. Facing a political moment that seemed tilted against them, 19th century Republicans bent the rules to create the America they wanted. When forced to choose between process and ideals, they chose their ideals. Now, as Democrats face a conservative Supreme Court, and an increasingly successful voter retraction campaign, they might benefit by boldly claiming the right to do the same. Instead of complaining that the system is fixed against them, they might outline a bold plan to remake the system in a just way.
The Republicans who pushed through the Fourteenth Amendment aimed not only to protect birthright citizenship and individual rights in its still-famous Section 1, but to remake Congress and the Electoral College in its now-forgotten Section 2. This punished states that excluded adult male voters by reducing their representation in Congress and the Electoral College. In bitter, unsuccessful 1830s and 1840s fights against politicians from slave-owning states, anti-slavery politicians realized that they had to go beyond winning by the rules and instead change the rules of a Constitution they considered, in Congressman Thaddeus Stevens’ words, “the most tyrannical that ever were imposed in the name of freedom.”
Until the Civil War, moderate Republicans like Abraham Lincoln understandably found ways to prevail within the existing Constitution. But the emancipation of slaves and the military occupation of the rebel states created a problem, and an opening. Perversely, emancipation threatened to increase the power of Southern states by making the three-fifths compromise mute. Even if these rebel states did not enfranchise any black men, they would receive extra representation in Congress and the Electoral College by counting freedmen as full citizens, instead of three-fifths. Stevens and other radicals used this opportunity to press for a broader constitutional amendment and remodel “all our institutions.”
But writing the amendment turned out to be the easy part. Ratifying it required the approval of two-thirds of Congress and three-quarters of the states. Working with a “fractional” Congress that did not include Southern state representations, Republicans during the Civil War and Reconstruction changed the game by adding four states to the Union — Kansas, West Virginia, Nevada, and Nebraska — and restoring Tennessee once it passed the amendment. Still Republicans needed at least five more states to ratify their amendment.
To gain those extra votes, Congressional Republicans in March 1867 put the remaining rebel states under military rule, ordered the Army to register black male voters, and directed them to call constitutional conventions to remake state governments and pass the amendment. As five more rebel states passed the amendment, there seemed to be 28 approvals on July 9, 1868. This is often cited as the date the amendment passed.
But was it? President Andrew Johnson was at war with Congress over the validity of those Reconstruction governments and had recently survived impeachment, avoiding conviction and removal by one vote. The amendment would only become official if Secretary of State William Seward issued an official proclamation. Meanwhile, two northern states had rescinded their approvals. What did this mean? Seward also worried whether ex-rebel states under martial law could permanently re-make the Constitution.
On July 20, Seward issued an ambiguous proclamation that listed the various governments that had approved the amendment but did not resolve the issue of its ratification. But Congress was in no mood for worrying about procedural niceties. The next day, July 21, Congress demanded that Seward act.
After two more ex-rebel states approved the amendment, Seward on July 28 proclaimed that the Fourteenth Amendment was “valid to all intents and purposes.” It had taken two years, military government, and congressional hardball to change the Constitution. But Republicans had done it. They aimed to enshrine birthright citizenship and equal protection, but they also wanted to make sure planters could not dominate Congress and the Electoral College.
Time would prove that their efforts were not successful. Southern planters disfranchised black men, enshrined Jim Crow segregation, and dominated Congress in the early 20th century. Thaddeus Stevens understood that the Fourteenth Amendment’s work was incomplete. Instead of remaking the Constitution, they had only patched “up the worst portions of the ancient edifice,” leaving it open to “the storms of despotism.” Still, the Second American Revolution of Reconstruction reduced planters’ hold over national politics and created frameworks for future protections of individual rights.
Now, Democrats face questions not unlike those that confronted 1840s anti-slavery politicians. Should they consider President Trump an aberration and call for a restoration of constitutional norms? Or use this crisis to address growing systemic problems in the constitutional framework: voter disfranchisement, gerrymandering, mass infusions of private contributions, a conservative Supreme Court, and an anti-majoritarian Electoral College and Senate?
If they followed the lead of Civil War Era Republicans, Democrats might follow up their next ballot box victories by changing the system permanently. Perhaps they might offer statehood to Washington D.C. and Puerto Rico (and thus change the balance of the Senate and Electoral College), and might force votes on a variety of constitutional amendments that would affirmatively enfranchise every adult, explicitly empower the government to regulate the environment and the health care system, and address other systemic problems.
Surely, it is risky to call for sweeping constitutional change in a country that valorized the Constitution, but it may be even riskier to fail to offer solutions to the country’s problems. The Civil War Era Republicans called for a second founding to fix the errors of the first. Perhaps today’s crises provide an opportunity, unlikely as it seems, to call for a third founding to, in Stevens’ words, free the Constitution “from every vestige of human oppression.”
Gregory Downs is a Professor of History at University of California, Davis, and the author of two books on Reconstruction, including After Appomattox: Military Occupation and the Ends of War. He is currently completing a book on the Civil War as the second American revolution. He is also the author of a book of short stories and co-author (with Kate Masur) of the National Park Service’s first-ever Theme Study on Reconstruction.