The History of the Loyal Denominator

Abstract

The exclusion of Southern representatives from Congress from December 1865 to the summer of 1868 raises problems for the Fourteenth Amendment’s compliance with both of Article V’s requirements for constitutional amendments. Congress (a) proposed the Amendment in 1866 while excluding Southern representatives, an exclusion critical to achieving 2/3-of-each-house majorities, and (b) required Southern states in 1867 to ratify as a condition for readmission, an inducement critical to achieving a 3/4-of-the-states ratification requirement. Even if these problems do not imperil the Fourteenth Amendment as an enforceable part of the Constitution, they may give interpreters pause in enforcing it as energetically as they might enforce parts of the Constitution with less-cloudy pedigrees.Scholars like Bruce Ackerman, John Harrison, Akhil Amar, and most recently Thomas Colby have proposed a wide variety of conflicting ways to handle these problems. Ackerman explains the Amendment’s legitimacy on the basis of President Johnson’s 1868 capitulation to a non-Article-V process, confirmed by the Supreme Court in 1873. Harrison relies instead on the unreviewable finality of congressional membership decisions and pressured state ratifications, Amar on congressional power to republicanize Southern states with black suffrage, and Colby on the normative desirability of an intergenerationally-authored Fourteenth Amendment including cases like Brown and Roe. Here, however, I propose an approach that will (a) fit the text and history of the Constitution, (b) preserve Fourteenth Amendment legitimacy in a simple, appealing fashion, and (c) clarify the Fourteenth Amendment’s author and frame the Fourteenth Amendment more straightforwardly as an expression of the victorious Union’s Republican principles. The “loyal denominator” view roots both the 1866 proposal and the 1867 coercion of the South on the continuing suspension of rights that began with secession. A disloyal South whose Article I and Article V rights were suspended upon secession had no right to participate in federal lawmaking process, either in Congress or as part of the Article V denominator, until the Union’s military victory was sufficiently secure in the view of Congress. Given a loyal Article V denominator, the Fourteenth Amendment became law on February 12, 1867, with Pennsylvania’s 20th ratification out of 26 congressionally-represented states, as opposed to July 1868, when 28 of the full 37 states had ratified, including 8 ratifications squeezed out of the South. This view changes the Fourteenth Amendment’s time of adoption, but even more important is the change in the constitutional author: we should understand the text as expressions of meaning uttered by the loyal North, not as jointly uttered by the loyal North and the defeated South. Ackerman, Harrison, Colby, and especially Amar have all explored the possibility of a loyal-denominator solution to Fourteenth Amendment legitimacy and noted substantial support for the theory. Ackerman and Colby chiefly associate the view with Charles Sumner and Thaddeus Stevens’s idiosyncratic versions of the position, while Harrison rejects it on textual grounds and Amar thinks that Congress abandoned the view in the Reconstruction Act of 1867. A full canvass of historical support for a loyal denominator, however, which this article supplies for the first time, answers these objections.A great many Republicans espoused the loyal-denominator theory of Article V, from the very start of the war and continuing through 1868 and beyond. Their theories were not limited to Charles Sumner’s state-suicide theory, Thaddeus Stevens’s theory of successful secession and reconquest, or the view that Southern states were not republican in form. The key for most advocates of the view was instead reliable loyalty in the face of secession. While some important Republicans, like President Lincoln in speaking of the Thirteenth Amendment, were agnostic on the issue, virtually no Republicans voiced full-throated criticisms of the loyal denominator. A loyal denominator was also adopted by many early scholars who considered the issue. This Article explains the loyal-denominator view and focuses on its prevalence during and after the Civil War and Reconstruction. Sequels will defend loyal denominatorism under the meaning expressed by the relevant constitutional language at the original Founding and investigate the implications of a Northern-authored Fourteenth Amendment both for interpretation of the amendment and for democratic theory.